No Solicitation. (a) Until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 8.01, the Company shall not, and shall cause its Subsidiaries and its and their respective Representatives not to, directly or indirectly, (i) solicit, initiate, knowingly facilitate or knowingly encourage the submission or announcement of any inquiries, proposals or offers that constitute or would reasonably be expected to lead to any Takeover Proposal, (ii) provide any non-public information concerning the Company or its Subsidiaries to any Person or group in connection with any Takeover Proposal, or engage in any discussions or negotiations with respect to any Takeover Proposal, (iii) approve, support, adopt, endorse or recommend any Takeover Proposal, (iv) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve or agree to do any of the foregoing. The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with any Person or groups that may be ongoing with respect to any Takeover Proposal or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company or any of its Subsidiaries or any of its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement. (b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received a bona fide, written Takeover Proposal from any Person or group that did not result from a breach of this Section 6.02, and (ii) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or could reasonably be expected to result in a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, (A) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group making such Takeover Proposal; provided, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal. (c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal. (d) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”). (e) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable Law, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law. (f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e). (g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writ
Appears in 2 contracts
Sources: Merger Agreement (News Corp), Merger Agreement (Move Inc)
No Solicitation. (aSubject to Section 5(a) Until hereof, Shareholder shall immediately cease, and shall cause any Affiliates of Shareholder to immediately cease, any discussions or negotiations with any third-party that may be ongoing with respect to a Competing Proposal, or any proposal that could reasonably be expected to lead to a Competing Proposal, and shall request to have returned promptly any confidential information that has been provided since January 2015 in any such discussions or negotiations. From the date hereof until the earlier of the Effective Time and or the valid date of termination of this Agreement pursuant to Section 8.01in accordance with its terms, the Company Shareholder shall not, and shall cause its Subsidiaries and its and their respective Representatives the Affiliates of Shareholder not to, directly or indirectly, (i) solicit, initiate, knowingly facilitate initiate or knowingly encourage the submission (including by way of furnishing information which has not been previously publicly disseminated) any Competing Proposal or announcement of any inquiries, proposals or offers that constitute or proposal which would reasonably be expected to lead to any Takeover a Competing Proposal, (ii) provide any non-public information concerning the Company or its Subsidiaries to any Person or group in connection with any Takeover Proposal, or engage in any discussions or negotiations with respect to regarding any Takeover Proposal, Competing Proposal or (iii) approve, supportendorse, adopt, endorse recommend or recommend any Takeover Proposal, (iv) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve or agree to do any of the foregoing. The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with any Person or groups that may be ongoing with respect to any Takeover Proposal or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company or any of its Subsidiaries or any of its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received a bona fide, written Takeover Proposal from any Person or group that did not result from a breach of this Section 6.02, and (ii) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or could reasonably be expected to result in a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, (A) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group making such Takeover Proposal; provided, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption ofinto, or publicly propose to approve, declare the advisability of or endorse, recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar definitive agreement with respect to any Competing Proposal; provided, however, that, for the avoidance of doubt, the foregoing restrictions shall not apply to Shareholder in his capacity as an officer or director of the Company to the extent such actions are permitted by the terms of the Merger Agreement. Shareholder shall promptly, and in any event no later than 24 hours, after it receives (x) any Competing Proposal or indication by any Person that it is considering making a Competing Proposal, (ivy) publicly propose any request for non-public information relating to the Company or announce an intention its Subsidiaries other than requests for information in the ordinary course of business consistent with past practice and unrelated to take a Competing Proposal or (z) any inquiry or request for discussions or negotiations regarding any Competing Proposal, notify the Company orally and in writing of any of the foregoing actionsoccurrences, (v) following the date any Takeover identity of the Person making such request, inquiry or Competing Proposal and provide the Company with a copy of such request, inquiry or Competing Proposal (other than any tender or exchange offer relating to securities where no such copy is available, a reasonably detailed description of the Company (other than the Offer)) such request, inquiry or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification theretoCompeting Proposal), (vi) withhold or fail to include including any modifications thereto. For the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement avoidance of any tender or exchange offer relating to securities of the Company (other than the Offer)doubt, fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding notwithstanding anything to the contrary in this AgreementSection 1(c), at this Section 1(c) shall not prohibit any time prior discussions, negotiations, or Transfers related to the Acceptance Timeany permitted Transfers pursuant to Section 1(b), the Company Board may effect an Adverse Recommendation Change in response to and any Transfer permitted under Section 1(b) will not constitute a Superior Proposal if and only if: (v) the Company has complied with the other provisions breach of this Section 6.02, (w) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable Law, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e1(c).
(g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writ
Appears in 2 contracts
Sources: Voting and Support Agreement (Interval Leisure Group, Inc.), Voting and Support Agreement (Interval Leisure Group, Inc.)
No Solicitation. (a) Until Except as permitted by this Section 6.3, during the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 8.01Pre-Closing Period, the Company shall not, and shall cause its Subsidiaries each Acquired Company not to, and shall not authorize its and their respective Representatives to, and shall direct its Representatives not to, directly or indirectly, (i) solicit, initiate, initiate or knowingly facilitate or knowingly encourage (including by way of furnishing non-public information) any inquiries regarding, or the submission or announcement making of any inquiriesproposal or offer that constitutes, proposals or offers could reasonably be expected to lead to, an Acquisition Proposal, (ii) engage in, continue or otherwise participate in any discussions (except to notify a Person that constitute makes any inquiry or would offer with respect to an Acquisition Proposal of the existence of the provisions of this Section 6.3 or to clarify whether any such inquiry, offer or proposal constitutes an Acquisition Proposal) or negotiations regarding, or furnish to any other Person any information in connection with or for the purpose of soliciting, knowingly encouraging or facilitating, an Acquisition Proposal or any proposal or offer that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (iii) adopt, approve or enter into any letter of intent, acquisition agreement, agreement in principle or similar agreement with respect to an Acquisition Proposal or any proposal or offer that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal or (iv) waive or release any Person from, fail to use reasonable best efforts to enforce any standstill agreement or any standstill provisions of any Contract entered into in respect of an Acquisition Proposal or any proposal or offer that constitutes or could reasonably be expected to lead to any Takeover an Acquisition Proposal, (ii) provide any non-public information concerning the Company or its Subsidiaries to any Person or group in connection with any Takeover Proposal, or engage in any discussions or negotiations with respect to any Takeover Proposal, (iii) approve, support, adopt, endorse or recommend any Takeover Proposal, (iv) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve or agree to do any of the foregoing. The Company and its directors, officers and employees shall, and the Company shall use reasonable best efforts to cause its Subsidiaries and its and their respective other Representatives to, immediately within one (1) Business Day of the Agreement Date, (A) cease and cause to be terminated any solicitation, encouragement, discussion solicitation and any and all existing discussions or negotiation negotiations with any Person or groups that may be ongoing conducted heretofore with respect to any Takeover Acquisition Proposal or potential Takeover any proposal or offer that constitutes, or could reasonably be expected to lead to, Acquisition Proposal. The Company shall promptly after the date hereof request each , (B) terminate access by any Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to Parent, Purchaser, the Company or destroy all non-public documents and materials any of their respective Affiliates or Representatives) to any physical or electronic data room relating to the Takeover any potential Acquisition Proposal or any proposal or offer that constitutes, or could reasonably be expected to lead to, Acquisition Proposal, and (C) request, in writing, the return or destruction of all confidential information of the Acquired Companies previously furnished or made available to such Persons.
(b) Notwithstanding Section 6.3(a)(i), if at any time on or after the Agreement Date and prior to the Offer Acceptance Time, the Company or any of its Subsidiaries or any of its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received a receives an unsolicited bona fide, fide written Takeover Acquisition Proposal from any Person or group that of Persons, which Acquisition Proposal was made on or after the Agreement Date and did not result from a or arise out of any material breach of this Section 6.026.3 (including any of the provisions of Section 6.3(a)), and (ii) the Company Board determines in good faith, after consultation with its the Company’s financial advisor advisors and outside legal counsel, that such Takeover Acquisition Proposal constitutes or could reasonably be expected to result in lead to a Superior ProposalOffer (and the Company provides Parent with written notice of this determination), then the Company mayand its Representatives may (i) furnish, upon receipt of pursuant to (but only pursuant to) an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover ProposalAgreement, (A) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group making of Persons who has made such Takeover Acquisition Proposal; provided, that (x) the Company shall substantially concurrently provide to Acquiror Parent any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and given such access which was not previously provided to Acquiror Parent or its Representatives and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (Bii) engage in or otherwise participate in discussions or negotiations with the Person or group of Persons making such Takeover Proposal regarding such Takeover Proposal; provided, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Acquisition Proposal.
(c) The Following the Agreement Date, the Company shall (i) promptly (and, and in any event, event within twentyforty-four eight (2448) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives Parent of any inquiry, proposal or offer received by the Company or any of its Representatives with respect to, or that constitutes or could would reasonably be expected to lead to any Takeover an Acquisition Proposal, or any initial request for non-public information concerning including the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations identity of the Company as Person(s) making such inquiry, proposal or offer, (ii) promptly (and in place as any event within forty-eight (48) hours) provide to Parent a summary of the date of this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer Acquisition Proposal or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal or offer, and a complete copy of any written proposal, written offer or request. Without limiting other written material with respect to such Acquisition Proposal or such inquiry, proposal or offer (or an amendment thereto), including copies of any proposed Specified Agreement or any term sheet or letter of intent or other documents or materials delivered in connection therewith, including any financing documentation (or reasonable summaries thereof if providing copies thereof is prohibited by the generality terms of a confidentiality agreement with such Persons or group of Persons), (iii) keep Parent reasonably informed of any material developments, discussions or negotiations regarding any Acquisition Proposal or any such inquiry proposal or offer on a reasonably prompt basis, and (iv) reasonably inform Parent of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries status of any oral inquiriesAcquisition Proposal or any such inquiry, requests, proposals proposal or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposaloffer.
(d) Neither Nothing in this Agreement, including this Section 6.3, shall restrict the Company Board nor any committee thereof shall from (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given taking and disclosing to the stockholders of the Company or received a position contemplated by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification theretoRule 14e-2(a), (viRule 14d-9 or Item 1012(a) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable Law, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) Regulation M-A promulgated under the Exchange Act or from issuing a Act, (ii) making any “stop, look and listen” communication, as defined in communication pursuant to Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending or (iii) making any legally required disclosure to the stockholders of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; Company (provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e).
(g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreement, such disclosure includes an express reaffirmation of the Company Board mayRecommendation), at (iv) communicating with any time prior Person or group of Persons (or the representatives of such Person or group of Persons) that makes any Acquisition Proposal to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur extent necessary to direct such Person or arise after group of Persons to the date provisions of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement Section 6.3 and/or to clarify and does not relate to any Takeover Proposal or understand the terms and conditions of an Acquisition Proposal made by such Person or group of Persons and none of the foregoing actions shall be deemed to constitute a Company Adverse Change Recommendation; provided that, for the avoidance of doubt, this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known Section 6.3(d) shall not be deemed to permit the Company Board prior to make a Company Adverse Change Recommendation except to the Acceptance Time (any such material event, material development or material change extent permitted by and in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”accordance with Section 7.1(b); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writ).
Appears in 2 contracts
Sources: Merger Agreement (Biodelivery Sciences International Inc), Merger Agreement (Collegium Pharmaceutical, Inc)
No Solicitation. (a) Until the earlier of the Effective Time and or the valid termination of this Agreement pursuant to Section 8.01Agreement, the Company shall notagrees that neither it nor any of its subsidiaries, nor any of the officers, directors or employees of it or its subsidiaries shall, and it shall direct and use its best efforts to cause its Subsidiaries and its subsidiaries' representatives and their respective Representatives agents (including, without limitation, any investment banker, attorney or accountant retained by the Company or any of its subsidiaries), not to, directly or indirectly, (i) solicit, initiate, knowingly facilitate solicit or knowingly encourage (including by way of furnishing non-public information or assistance), or take any other action knowingly to facilitate, any inquiries or the submission or announcement making of any inquiriesproposal that constitutes, proposals or offers that constitute or would may reasonably be expected to lead to any Takeover Proposalto, an Acquisition Proposal (ii) provide any non-public information concerning the Company as defined below), or its Subsidiaries to any Person enter into or group in connection maintain or continue discussions or negotiate with any Takeover Proposal, person or engage entity in any discussions or negotiations with respect to any Takeover Proposal, (iii) approve, support, adopt, endorse or recommend any Takeover Proposal, (iv) take any action to make the provisions furtherance of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates such inquiries or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve obtain an Acquisition Proposal or agree to do or endorse any of the foregoing. The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with any Person or groups that may be ongoing with respect to any Takeover Proposal or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company or any of its Subsidiaries or any of its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received a bona fide, written Takeover Proposal from any Person or group that did not result from a breach of this Section 6.02, and (ii) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or could reasonably be expected to result in a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, (A) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group making such Takeover Proposal; provided, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Acquisition Proposal; provided, however, that prior to or concurrently with the Company taking such actions as described nothing in clauses (A) and/or (B) above, the Company this Agreement shall provide written notice to Acquiror of such determination of prohibit the Company Board as provided for from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal or (ii) furnishing information to, or entering into discussions or negotiations with, any person or entity that makes an unsolicited Acquisition Proposal after the date of this Agreement, if, in the case referred to in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as Board, after consultation with and based upon the advice of independent legal counsel, determines in place as of good faith that such action is likely to be required for the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (Board to comply with its fiduciary duties to stockholders under applicable law and, in any eventprior to taking such action, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company receives from such person or its Subsidiaries from any Person or group who has made or would entity an executed confidentiality agreement in reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date customary form. For purposes of this Agreement, provide the material terms and conditions of any such "Acquisition Proposal" means an inquiry, proposal, offer or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take proposal regarding any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)transactions contemplated by this Agreement) involving the Company or any material modification thereto is first made public of its subsidiaries: (w) any merger, consolidation, share exchange, recapitalization, business combination or sent other similar transaction; (x) any sale, lease, exchange, mortgage, pledge, transfer or given to other disposition of all or substantially all the stockholders assets of the Company and its subsidiaries, taken as a whole, in a single transaction or received by the Company, fail to issue a press release publicly series of related transactions; (Ay) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender offer or exchange offer relating to securities for 20 percent or more of the outstanding shares of Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable Law, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change Common Stock or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise filing of its fiduciary duties under applicable Law.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated registration statement under the Exchange Securities Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance connection therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e).
(g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any eventpublic announcement of a proposal, fact, circumstance plan or occurrence or combination or series thereof relating intention to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as do any of the date of this Agreement, that such Intervening Event was reasonably foreseeable foregoing or reasonably likely any agreement to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to engage in any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writforegoing.
Appears in 2 contracts
Sources: Merger Agreement (St Jude Medical Inc), Merger Agreement (St Jude Medical Inc)
No Solicitation. (a) Until From the execution and delivery of this Agreement and until the earlier to occur of the Effective Time and the valid termination of this Agreement pursuant to Section 8.017.1 hereof, the Company Seagate and its Subsidiaries shall not, and they shall cause its Subsidiaries and its and their respective Representatives officers, directors, affiliates or employees or any investment banker, attorney or other advisor or representative retained by any of them not to, directly or indirectly, indirectly (i) solicit, initiate, knowingly facilitate encourage or knowingly encourage induce the making, submission or announcement of any inquiriesSeagate Acquisition Proposal (as defined in Section 5.4(b) hereof), proposals (ii) participate in any discussions or offers negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitute constitutes or would may reasonably be expected to lead to to, any Takeover Proposal, (ii) provide any non-public information concerning the Company or its Subsidiaries to any Person or group in connection with any Takeover Proposal, or engage in any discussions or negotiations with respect to any Takeover Seagate Acquisition Proposal, (iii) engage in discussions with any person with respect to any Seagate Acquisition Proposal, (iv) subject to the terms of Section 5.2(c) hereof, approve, support, adopt, endorse or recommend any Takeover Seagate Acquisition Proposal, (iv) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise cooperate with relating to any Seagate Acquisition Transaction (as defined in Section 5.4(b) hereof); provided, however, that until the date on which this Agreement is approved by the requisite vote of the stockholders of Seagate, the terms of this Section 5.4(a) shall not prohibit Seagate from furnishing information regarding Seagate and its Subsidiaries to, entering into a confidentiality or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiationsnon-disclosure agreement with, or entering into discussions with, any person or group in response to a Seagate Superior Offer submitted by such person or group (viand not withdrawn) resolve if (a) neither Seagate nor any agents or agree to do representative of Seagate and its Subsidiaries shall have violated any of the foregoing. The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with any Person or groups that may be ongoing with respect to any Takeover Proposal or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company or any of its Subsidiaries or any of its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives restrictions set forth in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement5.4(a), the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received a bona fide, written Takeover Proposal from any Person or group that did not result from a breach Board of this Section 6.02, and (ii) the Company Board determines Directors of Seagate concludes in good faith, after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or could reasonably be expected action is necessary in order for the Board of Directors of Seagate to result in a Superior Proposalcomply with its fiduciary obligations to the stockholders of Seagate under applicable Law, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by (c) Seagate receives from such Person person or group making such Takeover Proposal, (A) furnish information (including an executed confidentiality or non-disclosure agreement containing customary limitations on the use and disclosure of all non-public information) written and oral information furnished to such person or group by or on behalf of Seagate and containing terms no less favorable to the disclosing party than the terms of the Confidentiality Agreement (including with respect to any standstill arrangements, unless the Company standstill arrangements in the Confidentiality Agreement are waived and its Subsidiaries (d) prior to the Person or group making furnishing any such Takeover Proposal; provided, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (to such person or access) concerning the Company group, or its Subsidiaries that is provided to (entering into negotiations or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiariesdiscussions, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure Seller notifies Purchaser promptly of such inquiries, proposals or offers received by, any such information in the context of considering Takeover Proposalsrequested from, and (B) engage in or any such discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; providedsought to be initiated or continued with, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror any of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, andrepresentatives indicating, in connection with such notice, and subject to the existing terms of confidentiality obligations name of the Company as in place as of person and the date of this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreementsand furnishes such non-public information to Veritas to the extent such information has not been previously furnished to Veritas. Seagate and its subsidiaries shall immediately cease any and all existing activities, and oral summaries of discussions or negotiations with any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers parties conducted heretofore with respect to any Person or group making a Takeover Seagate Acquisition Proposal.
(db) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions For all purposes of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of and under this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to term "Seagate Acquisition Proposal" shall mean any such Takeover Proposal and each material modification thereto), (vi) withhold offer or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company proposal (other than the Offer), fail an offer or proposal by Veritas) relating to issue a press release publicly announcing within ten (10) Business Days any Seagate Acquisition Transaction. For all purposes of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of under this Agreement, "Seagate Acquisition Transaction" shall mean any transaction or series of related transactions, other than the Offer and transactions contemplated by this Agreement or the Merger (any action described in clause OD Documents, involving: (i), (ii), (iii), (iv), (v), (vi) any acquisition or (vii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the contrary in this Agreement, at purchase from Seagate by any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable Law, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept person or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period "group" (as it may be extended pursuant to the following provisodefined under Section 13(d) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and the rules and regulations promulgated thereunder) of more than fifteen percent (15%) in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e).
(g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as interest of the date total outstanding voting securities of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstanceSeagate, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time tender offer or exchange offer that if consummated would result in any person or "group" (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any defined under Section 13(d) of the following constituteExchange Act and the rules and regulations promulgated thereunder) beneficially owning more than fifteen percent (15%) of the total outstanding voting securities of Seagate, or be taken into account in determining any merger, consolidation, business combination or similar transaction involving Seagate pursuant to which the existence of, an Intervening Event: stockholders of Seagate immediately preceding such transaction would hold less than fifteen percent (x15%) of the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement equity interests in the market price surviving or trading volume resulting entity of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stocksuch transaction; (ii) no director had knowledgeany sale, as lease (other than in the ordinary course of business), exchange, transfer, license (other than in the ordinary course of business), acquisition or disposition of more than fifteen percent (15%) of the date assets and properties of this Agreement, that such Intervening Event was reasonably foreseeable Seagate; or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faithany liquidation or dissolution of Seagate, after consultation with its financial advisor and outside legal counsel, thatexcluding, in light all cases any disposition of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with assets covered by the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writOD Documents.
Appears in 2 contracts
Sources: Merger Agreement (Seagate Technology Malaysia Holding Co Cayman Islands), Agreement and Plan of Merger and Reorganization (Seagate Technology Holdings)
No Solicitation. (a) Until The Company shall immediately cease all existing discussions or negotiations with any Person (other than Parent and Merger Sub) that may be ongoing with respect to an Acquisition Proposal and promptly inform any such Person of the obligations under this Section 6.3 and to return or destroy all confidential information. Except as permitted by this Section 6.3, from the date of this Agreement until the earlier of the Effective Time and or the valid date of termination of this Agreement pursuant to in accordance with Section 8.018.1, the Company shall not, and shall cause each of its Subsidiaries and its and their respective Representatives officers, directors, employees and agents not to, and shall direct each of its investment bankers, financial advisors, attorneys, accountants and other representatives (collectively, “Representatives”) not to, directly or indirectly, (i) solicit, initiate, initiate or knowingly facilitate or knowingly encourage any inquiries or the submission or announcement making of any inquiriesproposal or offer which constitutes, proposals or offers that constitute or would could reasonably be expected to lead to to, any Takeover Acquisition Proposal, (ii) provide furnish any non-public nonpublic information concerning regarding the Company or its Subsidiaries to any Person or group in connection with any Takeover Proposal, or engage in any discussions or negotiations with respect response to any Takeover an Acquisition Proposal, (iii) approveengage in, supportcontinue or otherwise participate in, adopt, endorse any negotiations or recommend discussions regarding any Takeover Proposal, Acquisition Proposal or (iv) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” approve, recommend or other similar anti-takeover statute or regulation (including any transaction underenter into, or a third party becoming an “interested stockholder” underpropose to approve, Section 203 recommend or enter into, any letter of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve or agree to do any of the foregoing. The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with any Person or groups that may be ongoing with respect to any Takeover Proposal or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed a confidentiality similar agreement (other than the an Acceptable Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company or any of its Subsidiaries or any of its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives Agreement entered into in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything 6.3) with respect to the contrary contained in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this AgreementAcquisition Proposal.
(b) Notwithstanding anything to the contrary contained in this AgreementSection 6.3(a), if at any time prior to contacted by a Person making an Acquisition Proposal after the Acceptance Time, date of this Agreement (i) the Company has received and its Representatives may contact the Person making such Acquisition Proposal and its Representatives to ascertain facts or clarify terms and conditions for the sole purpose of the Board of Directors of the Company informing itself about the Acquisition Proposal and the Person that made it and (ii) if, prior to obtaining Company Stockholder Approval but not after, following the receipt of a bona fidefide written proposal, written Takeover Proposal from any Person or group that did not result from a breach of this Section 6.026.3, and (ii) which the Board of Directors of the Company Board determines in good faith, after consultation with its financial advisor and outside legal counseladvisors, that such Takeover Proposal constitutes constitutes, or could reasonably be expected to result in lead to, a Superior Proposal, then the Company and the Company Representatives may, upon receipt of an Acceptable Confidentiality Agreement executed by in response to such Person or group making such Takeover Acquisition Proposal, and subject to compliance with Section 6.3(d), (A) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group making such Takeover ProposalAcquisition Proposal and its Representatives and financing sources pursuant to an Acceptable Confidentiality Agreement; providedprovided that, that (x) to the extent not previously made available to Parent, the Company shall substantially concurrently provide furnishes Parent with all such nonpublic information delivered to Acquiror any non-public information (or access) concerning the Company or such Person promptly after its Subsidiaries that is provided delivery to (or access which is given to) any such Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the such Person making such Takeover Proposal regarding such Takeover Acquisition Proposal; provided. A breach of this Section 6.3 by any Representative of the Company, howeveracting by or on behalf of the Company, that prior to or concurrently with will constitute a breach by the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover ProposalSection 6.3.
(c) The Company shall promptly (and, in Notwithstanding any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date other provision of this Agreement, provide the material terms including Section 6.1 and conditions of any such inquirySection 6.2, proposal, offer or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and but subject to the existing terms of confidentiality obligations compliance with this Section 6.3, prior to receipt of the Company as in place as Stockholder Approval but not after, the Board of Directors of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither the Company Board nor any committee thereof shall may, in response to any unsolicited, bona fide Acquisition Proposal from any Person that did not result from a breach of this Section 6.3, (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), Parent) the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b)Recommendation, (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders Proxy Statement or (viiiii) following the commencement of approve, adopt or recommend, or publicly propose to approve, adopt or recommend, any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger Acquisition Proposal (any action described in clause these clauses (i), (ii), (iii), (iv), (v), (vi) or (viiiii) being referred to as an a “Adverse Recommendation ChangeWithdrawal”).
, and subject to compliance with this Section 6.3(c) and Section 8.3(a), terminate this Agreement in order to enter into a binding, definitive acquisition agreement, merger agreement or similar agreement in respect of such Acquisition Proposal, if (eA) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, Board of Directors of the Company Board may effect an Adverse Recommendation Change concludes in response to good faith, after consultation with its outside financial advisors and outside legal counsel, that such Acquisition Proposal constitutes a Superior Proposal if and only if: Proposal; (vB) the Company has complied with the other provisions Board of this Section 6.02, (w) Directors of the Company Board determines concludes in good faith (faith, after consultation with its outside legal counsel) , that the failure to take such action make a Recommendation Withdrawal would be inconsistent with the exercise of its fiduciary duties to the stockholders of the Company under applicable Law, ; (xC) the Board of Directors of the Company, prior to making a Recommendation Withdrawal or terminating this Agreement, as applicable, provides Parent four Business Days prior written notice of its intention to take such action, which notice shall include the information with respect to such Acquisition Proposal that is specified in Section 6.3(d), as well as a copy of such Acquisition Proposal (it being agreed that the delivery of such notice by the Company shall not constitute a Recommendation Withdrawal); (D) during the four Business Days following such written notice (or such shorter period as is specified below), if requested by Parent, the Board determines of Directors of the Company and its Representatives shall have negotiated in good faith with Parent regarding any revisions to the terms of this Agreement proposed by Parent in response to such Acquisition Proposal; and (E) at the end of the four Business Day period described in the foregoing clause (D), the Board of Directors of the Company concludes in good faith, after consultation with its outside legal counsel and financial advisors) advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed by Parent), that the applicable Takeover Acquisition Proposal constitutes continues to be a Superior Proposal and that it intends the failure to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse make a Recommendation Change, Withdrawal in respect of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may would be extended pursuant inconsistent with its fiduciary duties to the following proviso) stockholders of the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any under applicable Law. Any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall will be deemed to be a material amendmentnew Acquisition Proposal for purposes of this Section 6.3(c); provided, however, that the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) notice period and the period during which the Company shalland its Representatives are required, if requested by Parent, to negotiate with Parent regarding any revisions to the terms of this Agreement proposed in writing by Parent in response to such new Acquisition Proposal pursuant to clauses (C), (D) and (E) above shall expire two Business Days after the Company provides written notice of such new Acquisition Proposal to Parent.
(d) In addition to the obligations of the Company set forth in Section 6.3(a), Section 6.3(b) and Section 6.3(c), the Company shall promptly, and in any event no later than 48 hours after it receives any Acquisition Proposal or request for information, advise Parent in writing of any request for confidential information in connection with an Acquisition Proposal or of any Acquisition Proposal, the material terms and conditions of such request or Acquisition Proposal and the identity of the Person making such request or Acquisition Proposal and, if applicable, provide copies of any such written request or Acquisition Proposal, including any proposed agreements between the Company and the parties making the Acquisition Proposal, to Parent and shall cause keep Parent reasonably informed on a reasonably current basis (but in no event more often than once every 48 hours) of all material modifications to the terms of any Acquisition Proposal.
(e) Nothing in this Agreement shall prohibit or restrict the Board of Directors of the Company, from effecting, and the Board of Directors of the Company may effect, a Recommendation Withdrawal at any time prior to obtaining the Company Stockholder Approval, but not after, if (i) an Intervening Event has occurred and is continuing and (ii) the Board of Directors of the Company concludes in good faith, after consultation with its Subsidiaries outside legal counsel, that the failure to effect a Recommendation Withdrawal in response to such Intervening Event would be inconsistent with its fiduciary duties to the stockholders of the Company under applicable Law; provided, however, that no Recommendation Withdrawal pursuant to this Section 6.3(e) may be made unless (i) the Board of Directors of the Company provides Parent four Business Days prior written notice that it intends to take such action and provides reasonable detail with respect to such Intervening Event (it being agreed that the delivery of such notice by the Company shall not constitute a Recommendation Withdrawal) and (ii) during the four Business Days following such written notice, if requested by Parent, (A) the Board of Directors of the Company and its and their respective directors, officers, employees and other Representatives to, negotiate shall have negotiated in good faith with Acquiror shall be extended until Parent regarding any revisions to the terms of this Agreement proposed by Parent in response to such notice and (B) at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; providedfour Business Day period, further, that the Board of Directors of the Company Board shall have considered concludes in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (faith, after consultation with its outside legal counsel and financial advisors) advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed by Parent), that the failure of the Company Board to effect an Adverse make a Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) Withdrawal would be inconsistent with the exercise of its fiduciary duties to the stockholders of the Company under applicable Law.
(f) Nothing contained in this Agreement Section 6.3 shall prohibit the Company or the Board of Directors of the Company Board from (i) taking and disclosing to the Company’s stockholders of the Company a position with respect to a tender offer contemplated by a third party pursuant to Rules 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act or from issuing making a “stop, look and listen” communication, as defined in statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9(f) promulgated 14d-9 under the Exchange Act and in accordance therewithAct, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e).
(g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of making any disclosure to the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting stockholders of the Company if the Board at which it will consider and determine whether such Intervening Event may require of Directors of the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, that the failure to make an Adverse Recommendation Change such disclosure would be inconsistent with applicable Law or (iii) informing any Person of the exercise existence of its fiduciary duties the provisions contained in this Section 6.3; provided, that any Recommendation Withdrawal may only be made in accordance with Section 6.3(c) or Section 6.3(e); and provided, further, that if any disclosure permitted under applicable Lawclause (i) above or, to the extent related to an Acquisition Proposal or Intervening Event, clause (ii) above does not reaffirm the Company Board Recommendation, such disclosure will be deemed to be a Recommendation Withdrawal and Parent will have the right to terminate this Agreement as set forth in Section 8.1(c)(ii); it being understood that, notwithstanding anything herein to the contrary, any “stop, look and listen” communication to the stockholders of the Company pursuant to Rule 14d-9(f) under the Exchange Act shall not in and of itself be deemed to be or constitute a Recommendation Withdrawal. Notwithstanding anything in this Agreement to the contrary, a factually accurate statement that describes the Company’s receipt of an Acquisition Proposal and the operation of this Agreement with respect thereto shall not, in and of itself, be deemed to be a Recommendation Withdrawal.
(vg) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror For purposes of a writthis Agreement:
Appears in 2 contracts
Sources: Merger Agreement (Clarcor Inc.), Merger Agreement (Parker Hannifin Corp)
No Solicitation. From and after the date hereof until the Expiration Date, the Shareholder, in his, her or its capacity as a shareholder of the Company, shall not, nor shall such Shareholder authorize any partner, officer, director, advisor or representative of, such Shareholder or any of his, her or its affiliates to (and, to the extent applicable to the Shareholder, such Shareholder shall use reasonable best efforts to prohibit any of his, her or its representatives or affiliates to), (a) Until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 8.01initiate, the Company shall not, and shall cause its Subsidiaries and its and their respective Representatives not to, directly or indirectly, (i) solicit, initiate, knowingly facilitate induce or knowingly encourage encourage, or take any action to facilitate the submission making of, any inquiry, offer or announcement of any inquiriesproposal which constitutes, proposals or offers that constitute or would could reasonably be expected to lead to any Takeover to, an Acquisition Proposal, (iib) provide any non-public information concerning the Company or its Subsidiaries to any Person or group in connection with any Takeover Proposal, or engage participate in any discussions or negotiations with respect regarding any Acquisition Proposal, or furnish, or otherwise afford access, to any Takeover Proposal, (iii) approve, support, adopt, endorse or recommend any Takeover Proposal, (iv) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve or agree to do any of the foregoing. The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with any Person or groups that may be ongoing with respect to any Takeover Proposal or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement person (other than the Confidentiality AgreementBuyer) relating to a Takeover Proposal any information or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or data with respect to the Company or any of its Subsidiaries or otherwise relating to an Acquisition Proposal, (c) enter into any agreement, agreement in principle or letter of its and their respective businessesintent with respect to an Acquisition Proposal, operations (d) solicit proxies or affairs heretofore furnished by become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Company Exchange Act) with respect to an Acquisition Proposal (other than the Merger Agreement) or its Subsidiaries otherwise encourage or assist any party in taking or planning any action that would compete with, restrain or otherwise serve to interfere with or inhibit the timely consummation of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives the Merger in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Merger Agreement, the Company and its Representatives may in any event inform (e) initiate a Person shareholders’ vote or group that has made or, to the Knowledge action by consent of the Company’s shareholders with respect to an Acquisition Proposal, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date (f) except by reason of this Agreement, terminate and be become a member of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision a “group” (as such term is used in Section 13(d) of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received a bona fide, written Takeover Proposal from any Person or group that did not result from a breach of this Section 6.02, and (ii) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or could reasonably be expected to result in a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, (A) furnish information (including non-public informationExchange Act) with respect to the Company and its Subsidiaries to the Person or group making such Takeover Proposal; provided, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to voting securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (takes any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as support of an “Adverse Recommendation Change”)Acquisition Proposal.
(e) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable Law, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e).
(g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writ
Appears in 2 contracts
Sources: Voting Agreement (Chittenden Corp /Vt/), Voting Agreement (Wesbanco Inc)
No Solicitation. (a) Until Subject to the remainder of this Section 5.02, from the date of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 8.01Article VII, the Company shall notnot and shall not cause or permit its Subsidiaries to, and shall cause not authorize or permit its Subsidiaries and Representatives or its and their respective Subsidiaries’ Representatives not to, directly or indirectly, to (i) solicit, initiate, knowingly facilitate initiate or knowingly encourage the submission or announcement of any inquiriesAcquisition Proposal (as defined below), proposals (ii) enter into any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or offers other similar agreement with respect to any Acquisition Proposal, (iii) solicit, knowingly encourage, participate, engage in or assist in any manner any discussions or negotiations regarding, or furnish to any person (other than Parent or its Representatives) any information with respect to, or knowingly take any other action to facilitate any inquiries or the making of any proposal that constitute constitutes, or would may reasonably be expected to lead to to, any Takeover Proposal, (ii) provide any non-public information concerning the Company Acquisition Proposal or its Subsidiaries to any Person or group in connection with any Takeover Proposal, or engage in any discussions or negotiations with respect to any Takeover Proposal, (iii) approve, support, adopt, endorse or recommend any Takeover Proposal, (iv) take any action (A) other than as contemplated by this Agreement in connection with the Merger, to make render the provisions Company Rights issued pursuant to the terms of the Company Rights Agreement inapplicable to any Acquisition Proposal or the transactions contemplated thereby, to exempt or exclude any person (other than Parent or Merger Sub) from the definition of an Acquiring Person (as defined in the Company Rights Agreement) under the terms of the Company Rights Agreement or allow the Company Rights to expire prior to their expiration date (all such actions in this subclause (A) are collectively referred to as “fair price,” “moratorium,” “control share acquisition,” Company Rights Agreement Modifications”) or (B) exempt any person (other than Parent or Merger Sub) from the restrictions on “business combinationcombinations” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, contained in Section 203 of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, DGCL (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve or agree to do any of the foregoing. The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with any Person or groups that may be ongoing with respect to any Takeover Proposal or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company or any of its Subsidiaries similar provision) or any of its and their respective businesses, operations otherwise cause or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives permit such restrictions not to apply (all such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained actions in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received a bona fide, written Takeover Proposal from any Person or group that did not result from a breach of this Section 6.02, and (ii) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or could reasonably be expected to result in a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, (A) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group making such Takeover Proposal; provided, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and subclause (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being are collectively referred to as an “Adverse Recommendation ChangeDGCL 203 Modifications”).
(eb) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, receipt of the Company Board may effect an Adverse Recommendation Change Stockholder Approval, in response to an unsolicited bona fide written Acquisition Proposal received after the date of this Agreement and not the result of a Superior Proposal if and only if: (v) the Company has complied with the other provisions breach of this Section 6.025.02, (w) if the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable Law, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors, that such Acquisition Proposal constitutes or may reasonably be expected to lead to a Superior Proposal (as defined in subsection (h) below), the Company may (x) enter into a customary confidentiality agreement with the person making such Acquisition Proposal containing terms and provisions (i) substantially similar to the terms and provisions of, (ii) no less restrictive on the person making such Acquisition Proposal and (iii) no less favorable to the Company than, the Confidentiality Agreement (it being understood that such confidentiality agreement will not include any provision calling for an exclusive right to negotiate with the applicable Takeover Company or having the effect of prohibiting the Company from satisfying its obligations under this Section 5.02), (y) furnish, and authorize and permit its Representatives to furnish, information with respect to the Company and its Subsidiaries to the person making such Acquisition Proposal and its Representatives pursuant to such customary confidentiality agreement and (z) participate in discussions or negotiations with such person and its Representatives regarding any such Acquisition Proposal.
(c) The Company shall notify Parent (“Notice of Proposal”) as promptly as practicable (and in any event within 24 hours) after receipt by the Company or any of its Subsidiaries, or any of their respective Representatives, of any bona fide inquiries, proposals or offers, requests for information or requests for discussions or negotiations in connection with any Acquisition Proposal, specifying the material terms and conditions thereof and, to the extent not prohibited by any confidentiality agreement or other similar agreement in existence as of the date of this Agreement, the identity of the party making such inquiry, proposal, offer or request (and, in the case of an entity, the ultimate beneficial owner thereof, if known to the Company). The Company shall keep Parent reasonably informed, on a prompt basis, of the status of any such discussions or negotiations and of any modifications to such inquiries, proposals, offers or requests, and shall promptly (and in any event within 24 hours) provide to Parent a copy of all written (and a summary in reasonable detail of all oral) inquiries, proposals or offers, requests for information or requests for discussions or negotiations from any other person and all written due diligence materials or other information provided by or on behalf of the Company or any Subsidiary of the Company in connection therewith that was not previously provided to Parent.
(d) The Company Board shall not (i) withdraw, amend or modify the Company Board Recommendation in a manner adverse to Parent or Merger Sub, or publicly propose or announce an intent to, or resolve to, do any of the foregoing (any such action, an “Adverse Recommendation Change”), (ii) approve, adopt or recommend, or publicly propose to approve, adopt or recommend, any Acquisition Proposal, or (iii) cause or permit the Company or any of its Subsidiaries to execute or 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 agreement constituting or related to, or that is intended to, or may reasonably be expected to lead to, any Acquisition Proposal, other than any confidentiality agreement permitted by Section 5.02(b).
(e) Notwithstanding the foregoing, if the Company has otherwise complied with its obligations under this Section 5.02, then at any time prior to the time when the Company Stockholder Approval has been obtained:
(i) upon having received an unsolicited bona fide written Acquisition Proposal that is not subsequently withdrawn and the Company Board concluding in good faith (A) after consultation with its financial advisors and outside legal counsel, that such Acquisition Proposal constitutes a Superior Proposal and (B) after consultation with its outside legal counsel that it intends taking such action is necessary to accept or recommend such Superior Proposal, (y) comply with its fiduciary duties to the Company shall have provided prior written notice Stockholders under applicable Law, the Company Board may make an Adverse Recommendation Change or publicly propose to Acquiror, at least four (4) Business Days prior to effecting any make an Adverse Recommendation Change, of its intent or approve or recommend the Superior Proposal, or terminate this Agreement pursuant to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”Section 7.01(c), and (z) if requested in writing by Acquiror, the or make Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated Rights Agreement Modifications or DGCL 203 Modifications with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant respect to the following proviso) the acquisition of Company Board again makes the determinations described in clauses (w) and (x) with respect Common Stock pursuant to such Superior Proposal; provided, furtherhowever, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to Change, approve or recommend the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change Superior Proposal or the Company to terminate this Agreement pursuant to Section 8.01(g7.01(c) would be inconsistent or make such Company Rights Agreement Modifications or DGCL 203 Modifications, unless the Company has first (x) provided notice (“Notice of Superior Proposal”) to Parent that an Acquisition Proposal described in a Notice of Proposal previously furnished to Parent constitutes a Superior Proposal, (y) given Parent three (3) Business Days following Parent’s receipt of the Notice of Superior Proposal to propose revisions to the terms of this Agreement (or make another proposal) and (z) shall have negotiated during such three Business Day period in good faith with Parent with respect to such proposed revisions or other proposal, if any, and at the exercise end of such period 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 Acquisition Proposal remains a Superior Proposal relative to the Merger, as supplemented by any counterproposals made by Parent (it being understood and agreed that any amendment to any material term of such Acquisition Proposal shall require a new Notice of Superior Proposal and a new three (3) Business Day period under clause (y).
(ii) In circumstances other than as provided in Section 5.02(e)(i) above, the Company Board may, if it determines in good faith, after consulting with outside legal counsel, that taking such action is necessary to comply with its fiduciary duties obligations under applicable Law, make an Adverse Recommendation Change, or publicly propose to make an Adverse Recommendation Change, but only after the Company has provided Parent with forty-eight (48) hours prior written notice that the Company Board is prepared to make the determination set forth in this clause (ii).
(f) Nothing contained in this Agreement Section 5.02 shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders Company Stockholders a position with respect to a tender offer contemplated by a third party pursuant to Rules Rule 14d-9 and or Rule 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under making any required disclosure to the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall notCompany Stockholders if, in and the good faith judgment of itselfthe Company Board, constitute after consultation with outside legal counsel, failure so to disclose would be inconsistent with its fiduciary obligations under applicable Law, it being understood, however, that this Section 5.02(f) shall not be deemed to permit the Company Board to make an Adverse Recommendation Change for purposes or take any of this Agreement; providedthe actions referred to in clause (iv) of Section 5.02(a) except, however, that no Adverse Recommendation Change may be made unless in each case to the Company shall have first complied with its obligations in extent permitted by Section 6.02(e5.02(e).
(g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions For purposes of this Agreement, which event“Acquisition Proposal” means any inquiry, development proposal or change in circumstance, offer from any person or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time group (any as such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any term is defined under Section 13(d) of the following constitute, Exchange Act) (other than Parent or be taken into account in determining the existence of, an Intervening Event: Merger Sub) relating to (xi) the fact that the Company meets any direct or exceeds any internal indirect acquisition or published projections, forecasts, estimates or predictions purchase of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume more than 15% of the outstanding shares of Company Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledgeany tender offer or exchange offer that, as if consummated, would result in any person or group beneficially owning more than 15% of the date outstanding shares of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this AgreementCompany Common Stock; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting direct or indirect acquisition of assets of the Company Board at which it will consider and determine whether such Intervening Event may require that generate or constitute 15% or more of the Company to make an Adverse Recommendation Changenet revenues, with a written notice specifying net income or the date and time assets (based on the fair market value thereof) of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening EventCompany; (iv) a merger, consolidation, business combination, recapitalization, restructuring, liquidation, dissolution or other similar transaction involving the Company Board determines or any Significant Subsidiary (as defined in good faith, after consultation with its financial advisor Rule 1-02(w) of Regulation S-X) of the Company; and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made any sale, lease, exchange, transfer, license, acquisition or disposition of assets of the Company or any Subsidiary of the Company (including for three (3this purpose the outstanding equity securities of the Subsidiaries of the Company) Business Days after receipt for consideration equal to 15% or more of the aggregate fair market value of all of the shares of Company Common Stock outstanding on the date prior to the date hereof, but in each case other than the transactions contemplated by Acquiror of a writthis Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Image Entertainment Inc), Merger Agreement (BTP Acquisition Company, LLC)
No Solicitation. (a) Until the earlier of the Effective Time and the valid termination of Except as otherwise provided in this Agreement pursuant to Section 8.016.5, the Company GFI shall not, and nor shall cause it authorize or permit any of the GFI Subsidiaries or any of its Subsidiaries and its and their Subsidiaries’ respective Representatives not to, directly or indirectly, indirectly (i) solicit, initiate, solicit or knowingly facilitate or knowingly encourage any inquiry or the submission or announcement making of any inquiries, proposals or offers proposal that constitute or would reasonably be expected to lead to any constitutes a Takeover Proposal, (ii) provide adopt, or publicly propose to adopt, or allow GFI or any GFI Subsidiary to execute or enter into, any binding or non-public information concerning the Company binding letter of intent, agreement in principle, memorandum of understanding, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or its Subsidiaries to any Person other agreement, commitment, arrangement, undertaking, or group understanding in connection with or relating to any Takeover ProposalProposal (other than confidentiality agreements permitted under Section 6.5(b)(i)) or (iii) other than with CME, Merger Sub 1, Merger Sub 2 or engage their respective Representatives or other than informing third parties of the existence of this Section 6.5, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person any information or data in connection with respect to or relating to, any Takeover Proposal, (iii) approve, support, adopt, endorse or recommend any Takeover Proposal, (iv) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve or agree to do any of the foregoing. The Company GFI shall, and GFI shall cause its the GFI Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitationexisting activities, encouragement, discussion discussions or negotiation negotiations with any Person Persons or groups that may be ongoing their Representatives conducted prior to the date of this Agreement with respect to any Takeover Proposal and shall request the prompt return or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company or destruction of any of its Subsidiaries or any of its and their respective businesses, operations or affairs heretofore confidential information previously furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives Persons in connection therewith in accordance with the terms of such any applicable confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreementforegoing, if at any time prior to receipt of the Acceptance TimeGFI Stockholder Approval, GFI and the Board of Directors of GFI (iupon the recommendation of the Special Committee) the Company has received may (directly or through their Representatives), in response to a bona fide, fide written Takeover Proposal from any Person or group that was first received after the date hereof and did not otherwise result from a breach of this Section 6.026.5, and subject to compliance with Section 6.5(d) (ii) the Company Board determines Change in good faith, after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or could reasonably be expected to result in a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, Recommendation):
(Ai) furnish information (including non-public information) with respect to GFI and the Company and its GFI Subsidiaries to the Person or group making such Takeover Proposal; provided, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making such Takeover Proposal and its Representatives pursuant to and in accordance with a confidentiality agreement containing provisions no less favorable in the aggregate to GFI than those contained in the Confidentiality Agreement then in effect; provided that such confidentiality agreement (A) shall be provided to CME promptly after its execution, (B) shall not contain any provisions that would prevent GFI from complying with its obligation to provide the required disclosure to CME pursuant to this Section 6.5 (No Solicitation) and (C) need not contain a standstill or similar provision that prohibits such Person from making a Takeover Proposal; provided, further, that a copy of all such information provided to such Person has previously been provided to CME or its Representatives or is provided to CME substantially concurrently with the time it is provided to such Person; and
(ii) participate in discussions or negotiations with such Person or its Representatives regarding such Takeover Proposal; provided, howeverin each case, that prior to or concurrently with the Company taking such actions as described in clauses Board of Directors of GFI (A) and/or (B) above, upon the Company shall provide written notice to Acquiror of such determination recommendation of the Company Board as provided for Special Committee) determines in clause good faith (iiafter consultation with its outside legal counsel and its independent financial advisor) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making that such Takeover Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes Proposal is or could reasonably be expected to lead to a Superior Proposal.
(c) As promptly as reasonably practicable after the receipt, directly or indirectly, by GFI of any Takeover Proposal or any inquiry with respect to, or that could reasonably be expected to lead to, any Takeover Proposal, and in any case within 24 hours after the receipt thereof, GFI shall provide oral and written notice to CME of (i) such Takeover Proposal or any initial request for non-public information concerning inquiry, (ii) the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations identity of the Company as in place as of the date of this Agreement, provide Person making any such Takeover Proposal or inquiry and (iii) the material terms and conditions of any such inquiryTakeover Proposal or inquiry (including a copy of any such written Takeover Proposal and any amendments or modifications thereto). Commencing upon the provision of any notice referred to above and continuing until such Takeover Proposal is withdrawn or the Board of Directors of GFI (upon the recommendation of the Special Committee) has provided written notice to CME that it is prepared to effect a Change in Recommendation pursuant to Section 6.5(d) (Change in Recommendation), proposal, offer or request and the nature of such request(A) once, and thereafter the Company shall keep Acquiror not more than once, each day at mutually reasonably informed on agreeable times, GFI (or its outside legal counsel) shall, in person or by telephone, provide CME (or its outside legal counsel) a prompt and timely basis summary of the status of such Takeover Proposal and the material details resolved or unresolved issues (including the stated positions of discussions with respect the parties to such negotiations on such issues) related thereto, including any material changes amendments or proposed amendments as to the price and other material terms of any such inquiryTakeover Proposal and (B) GFI shall, proposalpromptly upon receipt or delivery thereof, offer provide CME (or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24its outside legal counsel) hours) provide Acquiror with unredacted copies of all written inquiriesdrafts and final versions (and any comments thereon) of agreements (including schedules and exhibits thereto) relating to such Takeover Proposal exchanged between GFI or any of its Representatives, requests, proposals or offers, including proposed agreementson the one hand, and oral summaries the person making such Takeover Proposal or any of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that on the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposalother hand.
(d) Neither the Company Board of Directors of GFI nor any committee thereof shall (iincluding the Special Committee) withdraw shall, directly or rescind (or modify or qualify indirectly, effect a Change in a manner adverse Recommendation. Notwithstanding the foregoing, at any time prior to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub)receipt of the GFI Stockholder Approval, the Company Board Recommendation or of Directors of GFI (upon the findings or conclusions recommendation of the Company Special Committee) may, in response to a Superior Proposal or an Intervening Event, effect a Change in Recommendation; provided that the Board referred to in Section 4.03(b), of Directors of GFI (ii) approve or recommend upon the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any recommendation of the foregoing actions, Special Committee) determines in good faith (vafter consultation with its outside legal counsel and its independent financial advisor) following that the date any Takeover Proposal (other than any tender or exchange offer relating failure to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given do so would reasonably be likely to be inconsistent with its fiduciary duties to the stockholders of GFI under applicable Law; provided, further, that the Company or received by Board of Directors of GFI may not effect such a Change in Recommendation unless (i) the Company, fail to issue a press release publicly Board of Directors of GFI (A) reaffirming its upon the recommendation of this Agreementthe Special Committee) shall have first provided prior written notice to CME that it is prepared to effect a Change in Recommendation in response to a Superior Proposal or an Intervening Event, which notice shall, in the Offer case of a Superior Proposal, attach the most current version of any written agreement relating to the transaction that constitutes such Superior Proposal, and, in the case of an Intervening Event, attach information specifying such Intervening Event in reasonable detail and any other information related thereto reasonably requested by CME, it being understood and agreed that the Mergerdelivery of such notice shall not, in and of itself, be deemed a Change in Recommendation, and (Bii) rejecting CME does not make, within four Business Days after receipt of such notice a proposal that the Board of Directors of GFI (upon the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel and not recommending its independent financial advisor) would cause the proposal previously constituting a Superior Proposal to no longer constitute a Superior Proposal or obviates the need for a Change in Recommendation as a result of the Intervening Event, as the case may be. GFI agrees that, during the four Business Day period prior to its effecting a Change in Recommendation, GFI and its Representatives shall, if requested by CME, negotiate in good faith with CME and its Representatives (so long as CME and its Representatives are negotiating in good faith) regarding any revisions to the terms of the Transactions proposed by CME intended to cause such Takeover Proposal within five (5) to no longer constitute a Superior Proposal or to obviate the need for a Change in Recommendation as a result of an Intervening Event. Any material amendment to the terms of such Superior Proposal or material change to the facts and circumstances that are the basis for such Intervening Event occurring or arising prior to the making of a Change in Recommendation shall require GFI to provide to CME a new notice and a new negotiation period of two Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement instead of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) four Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”Days).
(e) Notwithstanding anything Nothing contained in this Section 6.5 shall prohibit GFI or the Board of Directors of GFI (upon the recommendation of the Special Committee) from taking and disclosing any position contemplated by Rule 14e-2 promulgated under the Exchange Act or making any statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9 promulgated under the Exchange Act in respect of any Takeover Proposal or making any disclosure to the contrary in this Agreement, at any time prior to stockholders of GFI if the Acceptance Time, Board of Directors of GFI (upon the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (vrecommendation of the Special Committee) the Company has complied with the other provisions of this Section 6.02, (w) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take make such action disclosure would reasonably be likely to be inconsistent with the exercise of its fiduciary duties to the stockholders of GFI under applicable Law, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation neither the Board of Directors of GFI nor any committee thereof (including the Special Committee) shall, except as expressly permitted by Section 6.5(d) (Change may be made unless the Company shall have first complied with its obligations in Section 6.02(eRecommendation), effect a Change in Recommendation.
(gf) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions For purposes of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writ:
Appears in 2 contracts
Sources: Merger Agreement (Cme Group Inc.), Merger Agreement (GFI Group Inc.)
No Solicitation. (a) Until the earlier None of the Effective Time and the valid termination of this Agreement pursuant to Section 8.01Target, the Company shall not, and shall cause its Subsidiaries and or any officer, director, employee, agent or representative (including any investment banker, financial advisor, attorney, accountant or other retained representative) of Target or any of its and their respective Representatives not to, Subsidiaries shall directly or indirectly, indirectly (i) solicit, initiate, knowingly encourage, facilitate (including by way of furnishing information) or knowingly encourage take any other action designed to facilitate any inquiries or proposals regarding any merger, share exchange, consolidation, sale of assets, sale of shares of capital stock (including by way of a tender offer) or similar transaction involving Target or any of its Subsidiaries that, if consummated, would constitute an Alternative Transaction (any of the submission foregoing inquiries or announcement of any inquiries, proposals or offers that constitute or would reasonably be expected being referred to lead to any Takeover herein as an “Alternative Proposal”), (ii) provide any non-public information concerning the Company or its Subsidiaries to any Person or group in connection with any Takeover Proposal, or engage participate in any discussions or negotiations with respect to any Takeover Proposalregarding an Alternative Transaction, (iii) approve, support, adopt, endorse enter into any agreement regarding any Alternative Transaction or recommend any Takeover Proposal, (iv) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or render a third party becoming an “interested stockholder” under, Section 203 of the Corporation Law) rights agreement inapplicable to any Person other than Acquiror and its Affiliates an Alternative Proposal or to any the transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve or agree to do any of the foregoingthereby. The Company Target shall, and shall cause each of the Subsidiaries and representatives of Target and its Subsidiaries and its and their respective Representatives to, (A) immediately cease and cause to be terminated any solicitation, encouragement, discussion all existing discussions or negotiation negotiations with any Person or groups that may be ongoing person conducted heretofore with respect to any Takeover Proposal Alternative Proposal, (B) request the prompt return or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person destruction of all confidential information previously furnished in connection therewith and (if anyC) that has heretofore executed a not terminate, waive, amend, release or modify any provision of any confidentiality or standstill agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover any Alternative Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company which it or any of its Subsidiaries or is a party, and shall enforce the provisions of any of its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of Notwithstanding the Company or its Subsidiaries shall enter into foregoing, if at any confidentiality agreement subsequent to time after the date hereof which prohibits but before approval of this Agreement by Target’s shareholders, (1) Target receives an unsolicited written Alternative Proposal that the Company or any of its Subsidiaries from providing to Acquiror the information required Target Board believes in good faith to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to bona fide, (2) such Alternative Proposal was not the contrary contained in this Agreement, the Company and its Representatives may in any event inform result of a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions violation of this Section 6.02. The Company 6.9, (3) the Target Board determines in good faith (after consultation with outside counsel and Acquiror hereby agree its financial advisor) that all standstill such Alternative Proposal constitutes or is reasonably likely to lead to a Superior Proposal and (4) the Target Board determines in good faith (after consultation with outside counsel) that the failure to take the actions referred to in clause (x) or (y) below would be reasonably likely to violate its fiduciary duties under applicable law, then Target may (and may authorize its Subsidiaries and representatives to) (x) furnish nonpublic information regarding Target and its Subsidiaries to the person making such Alternative Proposal (and its representatives) pursuant to a customary confidentiality agreement containing terms substantially similar provisions to, and no less favorable to Target than, those contained in the Confidentiality Agreement shall(provided, as of the date of this Agreement, terminate and be of no further force and effect solely that any nonpublic information provided to the extent necessary any person given such access shall have been previously provided to allow Acquiror to effect the transactions contemplated Buyer or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed provided to limit Buyer before or concurrently with the ability of Acquiror or any of its Affiliates time it is provided to take any action contemplated this Agreementsuch person), and (y) participate in discussions and negotiations with the person making such Alternative Proposal.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received a bona fide, written Takeover Proposal from any Person or group that did not result from a breach of this Section 6.02, and (ii) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or could reasonably be expected to result in a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, (A) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group making such Takeover Proposal; provided, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board Except as provided for in clause (ii) aboveotherwise below, together with (subject to neither the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither the Company Target Board nor any committee thereof shall may (ii)(A) withdraw or rescind (or modify or qualify in a any manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)Buyer) or any material modification thereto is first made public or sent or given refuse to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation recommend approval of this Agreement, the Offer and the Merger, and Agreement to Target’s shareholders or (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (oradopt, if earlierapprove, prior to recommend, endorse or otherwise declare advisable the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement adoption of any tender or exchange offer relating to securities of the Company Alternative Proposal (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of each such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of action set forth in this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (viiSection 6.9(b)(i) being referred to as an “Adverse Recommendation Change”).
, or (eii) cause or permit Target or any of its Subsidiaries to enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other agreement constituting or related to, or that is intended to or is reasonably likely to lead to, any Alternative Proposal (other than a confidentiality agreement permitted by Section 6.9(a)). Notwithstanding anything to the contrary in this Agreementforegoing, at any time prior to before obtaining approval of the Acceptance TimeMerger and this Agreement by Target’s shareholders, the Company Target Board may effect an Adverse Recommendation Change in response to a Superior Proposal may, if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Target Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action do so would be inconsistent with the exercise of reasonably likely to violate its fiduciary duties under applicable Lawlaw, taking into account all adjustments to the terms of this Agreement that may be offered by Buyer under this Section 6.9(b), make an Adverse Recommendation Change; provided, that Target may not make any Adverse Recommendation Change in response to an Alternative Proposal unless (x) the Company Target shall not have breached this Section 6.9 in any respect and (y):
(i) The Target Board determines in good faith (after consultation with its outside legal counsel and its financial advisorsadvisor) that the applicable Takeover such Alternative Proposal constitutes is a Superior Proposal and such Superior Proposal has been made and has not been withdrawn and continues to be a Superior Proposal after taking into account all adjustments to the terms of this Agreement that it intends may be offered by Buyer under this Section 6.9(b);
(ii) Target has given Buyer at least four business days’ prior written notice of its intention to accept or recommend take such action (which notice shall specify the material terms and conditions of any such Superior Proposal (including the identity of the party making such Superior Proposal, ) and has contemporaneously provided an unredacted copy of the relevant proposed transaction agreements with the person making such Superior Proposal; and
(yiii) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to Before effecting any such Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company Target has negotiated, and has caused its Subsidiaries and its and their respective Representatives torepresentatives to negotiate, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith with Buyer during such notice period to the four (4) Business Day period after such Notice of Intended Recommendation Change extent Buyer wishes to amend negotiate, to enable Buyer to revise the terms and conditions of this Agreement and the other agreements contemplated hereby such that the it would cause such Superior Proposal to no longer constitutes constitute a Superior Proposal and at Proposal. In the end event of any material change to the terms of such four (4) Business Day Superior Proposal, Target shall, in each case, be required to deliver to Buyer a new written notice, the notice period (as it may shall have recommenced and Target shall be extended pursuant required to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) comply with its obligations under this Section 6.9 with respect to such Superior new written notice.
(c) In addition to the obligations of Target under Sections 6.9(a) and (b), Target shall notify Buyer promptly (but in no event later than 24 hours) after receipt of any Alternative Proposal; provided, further, that in the event that there is or any material modification of or material amendment to any Alternative Proposal, or any request for nonpublic information relating to Target or any of its Subsidiaries or for access to the properties, books or records of Target or any Subsidiary by any person that informs the Target Board or any Subsidiary that it is considering making, or has made, an Alternative Proposal. Such notice to Buyer shall be made orally and in writing, and shall indicate the identity of the person making the Alternative Proposal or intending to make or considering making an Alternative Proposal or requesting nonpublic information or access to the books and records of Target or any Subsidiary, and the material terms of any such Alternative Proposal or modification or amendment to an Alternative Proposal. Target shall keep Buyer fully informed, on a current basis, of any material changes in the status and any material changes or modifications in the terms of any Superior such Alternative Proposal, indication or request. Target shall also promptly, and in any event within 24 hours, notify Buyer, orally and in writing, if it enters into discussions or negotiations concerning any Alternative Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance accordance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e6.9(a).
(gd) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere As used in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writ:
Appears in 2 contracts
Sources: Merger Agreement (First Capital Bancorp, Inc.), Merger Agreement (Park Sterling Corp)
No Solicitation. (a) Until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 8.01, the Company UST shall not, and nor shall cause it permit any UST Subsidiary to, nor shall it permit or authorize any officer, director, agent, affiliate or employee of, or any investment banker, attorney or other advisor of UST or any of its Subsidiaries and its and their respective Representatives not to, directly or indirectly, (i) solicit, initiate, knowingly facilitate solicit or knowingly encourage the submission inquiries or announcement of any inquiries, proposals or offers that constitute or would reasonably be expected to lead to any Takeover Proposal, (ii) provide any non-public information concerning the Company or its Subsidiaries to any Person or group in connection with any Takeover Proposalrespect to, or engage in any negotiations concerning, or provide any confidential information in response or relating to, or have any discussions or negotiations with respect to any person relating to, any Takeover Proposal, Proposal (iii) approve, support, adopt, endorse or recommend any Takeover Proposal, (iv) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction underas defined below), or a third party becoming an “interested stockholder” under, Section 203 waive any provision of or amend the terms of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by UST Rights Agreement in respect of a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve or agree to do any of the foregoing. The Company shall, and UST shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitationactivities, encouragement, discussion discussions or negotiation negotiations conducted prior to the date of this Agreement with any Person or groups that may be ongoing persons other than SCHWAB with respect to any Takeover Proposal of the foregoing and shall enforce any confidentiality or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed a confidentiality similar agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Proposal. UST shall, and shall cause its Subsidiaries to, promptly (within 24 hours) advise SCHWAB following the receipt by any of them of any Takeover Proposal and the substance thereof (including the identity of the person making such Takeover Proposal), and shall keep SCHWAB reasonably informed of the status and details with respect to promptly return to the Company or destroy all non-public documents and materials relating to the such Takeover Proposal or to promptly upon the Company or any of its Subsidiaries or any of its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreementoccurrence thereof.
(b) Notwithstanding anything to the contrary contained in this AgreementSection 6.4(a), if at any time prior to receipt of the Acceptance TimeUST Shareholder Approval, (i) the Company has received UST may, in response to a bona fide, written Takeover Proposal from any Person or group that did not result from a breach of this Section 6.026.4(a), and (ii) that in the Company good faith judgment of the UST Board determines in good faith, of Directors after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes constitutes, or could is reasonably be expected likely to result in be, a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, Proposal (Aas defined below) (x) furnish information (including non-public information) with respect to UST to the Company person making such proposal and its Subsidiaries representatives pursuant to a confidentiality agreement not less restrictive of the Person or group making such Takeover Proposal; provided, that (x) other party than the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror Confidentiality Agreement and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage participate in discussions or negotiations with the Person making such Takeover Proposal person and its representatives regarding such Takeover Proposal; provided, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposalproposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date For purposes of this Agreement, provide the material terms and conditions of "Takeover Proposal" means any such bona fide inquiry, proposal, offer or request and the nature indication of such requestinterest from any Person (whether or not conditional) relating to any direct or indirect (i) acquisition, and thereafter the Company shall keep Acquiror reasonably informed on purchase or lease of a prompt and timely basis business or assets that constitute 20% or more of the status consolidated net revenues, net income or assets of UST and material details its Subsidiaries or (ii) acquisition or purchase of discussions with respect thereto, including any material changes to the terms 20% or more of any such inquiry, proposal, class of common stock or voting securities of UST or any of its Subsidiaries or (iii) tender offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, exchange offer that if consummated would result in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals Person beneficially owning 20% or offers, including proposed agreements, and oral summaries more of any oral inquiries, requests, proposals class of common stock or offers, received by the Company, voting securities of UST or any of its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received transactions contemplated by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable Law, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e).
(g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writ
Appears in 2 contracts
Sources: Merger Agreement (Schwab Charles Corp), Merger Agreement (U S Trust Corp /Ny)
No Solicitation. (a) Until the earlier of the Effective Time and the valid termination of Except as expressly permitted by this Agreement pursuant to Section 8.014.02, the Company and its Subsidiaries shall not, and the Company shall instruct and cause its Subsidiaries and its and their respective Representatives not to, directly or indirectly, (i) solicit, initiate, knowingly encourage, or take any other action to knowingly facilitate any inquiries regarding, or knowingly encourage the making or submission of, any Takeover Proposal or announcement of any inquiries, proposals proposal or offers offer that constitute or would may reasonably be expected to lead to any Takeover Proposal, (ii) provide engage in, participate in or otherwise continue any discussions or negotiations regarding, or furnish to any person any non-public information concerning with respect to, or take any other action to knowingly facilitate the Company making of, any proposal or its Subsidiaries offer that constitutes, or may reasonably be expected to any Person or group in connection with lead to, any Takeover ProposalProposal or (iii) enter into or agree to enter into any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement or engage in any discussions or negotiations with respect other similar agreement related to any Takeover Proposal, other than any Acceptable Confidentiality Agreement (iii) approve, support, adopt, endorse or recommend any Takeover Proposal, (iv) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve or agree to do any of the foregoingAcquisition Agreement”). The Company and its Subsidiaries shall, and the Company shall instruct and cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation discussions and negotiations with any Person or groups that may be ongoing person conducted heretofore with respect to any Takeover Proposal or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company or any of its Subsidiaries or any of its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received a bona fide, written Takeover Proposal from any Person or group that did not result from a breach of this Section 6.02, and (ii) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or could reasonably be expected to result in a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, (A) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group making such Takeover Proposal; provided, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, . The Company will promptly request from each person that has executed a confidentiality agreement in connection with its consideration of making a Takeover Proposal to return or any initial request for non-public destroy (as provided in the terms of such confidentiality agreement) all confidential information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable Law, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its promptly terminate all physical and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect electronic data access previously granted to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Lawperson.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e).
(g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writ
Appears in 2 contracts
Sources: Merger Agreement (Covance Inc), Merger Agreement (Laboratory Corp of America Holdings)
No Solicitation. (a) Until the earlier The Company agrees that neither it nor any of its Subsidiaries nor any of the Effective Time officers and the valid termination directors of this Agreement pursuant to Section 8.01, the Company shall notit or its Subsidiaries shall, and that it shall use its reasonable best efforts to cause its Subsidiaries and its Subsidiaries’ Employees, agents and their respective Representatives representatives (including any investment banker, attorney or accountant retained by it or any of its Subsidiaries) not to (and shall not authorize any of them to, ) directly or indirectly, : (i) solicit, initiate, knowingly encourage, facilitate or knowingly encourage induce any inquiry with respect to, or the making, submission or announcement of of, any inquiries, proposals or offers that constitute or would reasonably be expected to lead to any Takeover Acquisition Proposal, (ii) provide any non-public information concerning the Company or its Subsidiaries to any Person or group in connection with any Takeover Proposal, or engage participate in any discussions or negotiations regarding, or furnish to any Person any nonpublic information with respect to, or take any other action (including granting any Person a waiver or release under any standstill or similar agreement with respect to any Takeover Proposal, (iii) approve, support, adopt, endorse or recommend any Takeover Proposal, (iv) take any action to make the provisions class of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 equity security of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve or agree to do any of the foregoing. The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with any Person or groups that may be ongoing with respect to any Takeover Proposal or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company or any of its Subsidiaries or any of its and their respective businessesSubsidiaries, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, other than as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision ) to facilitate any inquiries or the making of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received a bona fide, written Takeover Proposal from any Person or group that did not result from a breach of this Section 6.02, and (ii) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or could reasonably be expected to result in a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, (A) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group making such Takeover Proposal; provided, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption ofto, any Takeover Acquisition Proposal, (iii) cause or permit the Company engage in discussions with any Person with respect to execute or enter into, any Acquisition AgreementProposal, except to notify such Person as to the existence of these provisions, (iv) publicly propose approve, endorse or announce an intention recommend any Acquisition Proposal (except to take any of the foregoing actionsextent specifically permitted pursuant to Section 6.3(d)), or (v) following the date enter into any Takeover Proposal (other than letter of intent or similar document or any tender contract, agreement or exchange offer commitment contemplating or otherwise relating to securities of the any Acquisition Proposal or transaction contemplated thereby. The Company (other than the Offer)) and its Subsidiaries will immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once third parties conducted heretofore with respect to any such Takeover Acquisition Proposal and each material modification thereto)shall use commercially reasonable efforts to cause any such Person (including its employees, (viagents and representatives) withhold or fail to include in possession of confidential information about the Company Board Recommendation in the Schedule 14D-9 when disseminated connection with an Acquisition Proposal to the Company’s stockholders return or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer)destroy all such information and all materials, fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreementdocuments, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable Law, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees analyses and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, work product containing or derived from that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Lawinformation.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e).
(g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writ
Appears in 2 contracts
Sources: Merger Agreement (Captaris Inc), Merger Agreement (Castelle \Ca\)
No Solicitation. (a) Until From the earlier date of this Agreement until the Effective Time and or the valid termination of this Agreement pursuant to Section 8.01Article IX hereof, the Company shall agrees that the Company and its Subsidiaries will not, and shall will cause its Subsidiaries and its and their respective Representatives officers, directors, employees, other agents (including, without limitation, investment bankers, attorneys or accountants) not to, directly or indirectly, (i) take any action to solicit, initiate, knowingly encourage, enter into any agreement relating to or otherwise facilitate any offer or knowingly encourage the submission proposal for, or announcement any indication of any inquiries, proposals or offers that constitute or would reasonably be expected to lead to any Takeover interest in an Acquisition Proposal, (ii) provide waive any non-public information concerning provision of any standstill or similar agreements entered into by the Company or of its Subsidiaries to any Person or group in connection with any Takeover ProposalSubsidiaries, or (iii) engage in any or continue discussions or negotiations with respect or otherwise facilitate any effort or attempt to any Takeover make or implement an Acquisition Proposal, (iii) approve, support, adopt, endorse or recommend disclose any Takeover Proposal, (iv) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve or agree to do any of the foregoing. The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with any Person or groups that may be ongoing with respect to any Takeover Proposal or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) nonpublic information relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company or any of its Subsidiaries or any of its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received a bona fide, written Takeover Proposal from any Person or group that did not result from a breach of this Section 6.02, and (ii) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or could reasonably be expected to result in a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, (A) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group making such Takeover Proposal; provided, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, respectively, or afford access to their respective properties, books or records, to any Person that may be considering making, or has made, an Acquisition Proposal. Notwithstanding the foregoing, (i) nothing contained in a manner reasonably consistent with this Section 6.3 will prohibit the Company’s past practices in dealing with Board of Directors of the disclosure of such Company from (A) furnishing information in the context of considering Takeover Proposalsto, and (B) engage in or entering into discussions or negotiations with, any Person in connection with an unsolicited bona fide proposal in writing by such Person with respect to an Acquisition Proposal, if, and only to the Person making extent that (1) the Board of Directors of the Company, after consulting with outside legal counsel to the Company, determines in good faith that such Takeover Proposal regarding such Takeover Proposal; provided, however, that action is required for the Board of Directors of the Company to comply with its fiduciary duties to stockholders imposed by Law and (2) prior to furnishing such information to, or concurrently with the Company taking entering into discussions or negotiations with, such actions as described in clauses (A) and/or (B) abovePerson, the Company shall provide provides written notice to the Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event effect that the Company, its Subsidiariesit is furnishing information to, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for entering into discussions or negotiations related to any Takeover Proposalwith, and, in connection with such notice, Person and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer or request and the nature of such request, and thereafter the Company shall keep keeps Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the principal financial terms of any such inquiry, proposal, offer negotiations or request. Without limiting discussions; or (B) complying with Rule 14e-2 promulgated under the generality of Exchange Act with regard to an Acquisition Proposal and (ii) taking the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received actions contemplated by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), above under the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and circumstances described therein will not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable Law, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes breach of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e).
(g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writ
Appears in 2 contracts
Sources: Merger Agreement (Unitrode Corp), Merger Agreement (Unitrode Corp)
No Solicitation. (a) Until From the earlier of the Effective Time and the valid termination date of this Agreement pursuant to Section 8.01through the Effective Time, the Company LSBG shall not, and nor shall cause it authorize or permit any of its Subsidiaries and its and or their respective Representatives not directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it to, directly or indirectlyindirectly through another Person, (i) solicit, initiateinitiate or encourage (including by way of furnishing information or assistance), knowingly or take any other action designed to facilitate or knowingly encourage that is likely to result in, any inquiries or the submission or announcement making of any inquiriesproposal that constitutes, proposals or offers that constitute or would is reasonably be expected likely to lead to to, any Takeover Acquisition Proposal, (ii) provide enter into any non-public information concerning the Company or its Subsidiaries agreement with respect to any Person or group in connection with any Takeover an Acquisition Proposal, or engage (iii) participate in any discussions or negotiations regarding any Acquisition Proposal or furnish, or otherwise afford access, to any Person (other than BHB) any information or data with respect to LSBG or any Takeover of the LSBG Subsidiaries or otherwise relating to an Acquisition Proposal, or (iv) make or authorize any statement or recommendation in support of any Acquisition Proposal. Notwithstanding the foregoing sentence, LSBG may take any of the actions described in clause (iii) approve, support, adopt, endorse or recommend any Takeover Proposalof the foregoing sentence only if, (ivA) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve or agree to do any of the foregoing. The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with any Person or groups that may be ongoing with respect to any Takeover Proposal or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company or any of its Subsidiaries or any of its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance Time, (i) the Company LSBG has received a bona fide, fide unsolicited written Takeover Acquisition Proposal from any Person or group prior to the LSBG Meeting that did not result from a breach of this Section 6.025.11, and (iiB) the Company LSBG Board of Directors determines in good faith, after consultation with and having considered the advice of its outside legal counsel and its financial advisor and outside legal counseladvisor, that such Takeover Acquisition Proposal constitutes or could is reasonably be expected likely to result in lead to a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, (AC) furnish information LSBG provides BHB with at least three (including non-public information3) with respect to the Company and its Subsidiaries to the Person or group making such Takeover Proposal; provided, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the CompanyBusiness Day’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination (the “Notice of Superior Proposal”), which notice shall include the Company Board as provided for in clause (ii) above, together with (subject to the existing terms name of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the such Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer or request and the nature of such requestAcquisition Proposal, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions (D) prior to furnishing or affording access to any information or data with respect theretoto LSBG or otherwise relating to an Acquisition Proposal, including LSBG receives from such Person a confidentiality agreement with terms no less favorable to LSBG than those contained in the Confidentiality Agreement between BHB and LSBG. LSBG shall promptly provide to BHB any material changes non-public information regarding LSBG and its Subsidiaries provided to the terms of any other Person that was not previously provided to BHB, such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject additional information to the existing terms of confidentiality obligations of the Company as in place as of be provided no later than the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies provision of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating such information to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposalsuch other party.
(db) Neither Notwithstanding Section 5.04, prior to the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub)date of the LSBG Meeting, the Company LSBG Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) may approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of LSBG a Superior Proposal and withdraw, change, qualify or modify the Company or LSBG Recommendation in connection therewith (a “Change in Recommendation”) after the fifth (5th) Business Day following BHB’s receipt of the Notice of Superior Proposal advising BHB that the LSBG Board has decided that a bona fide unsolicited written Acquisition Proposal that it received by the Company, fail to issue (that did not result from a press release publicly (A) reaffirming its recommendation breach of this Agreement, the Offer Section 5.11) constitutes a Superior Proposal (it being understood that LSBG shall be required to deliver a new Notice of Superior Proposal in respect of any revised Superior Proposal from such third party or its affiliates that LSBG proposes to accept and the Merger, and subsequent notice period (B) rejecting and which shall not recommending shorten such Takeover Proposal within original five (5) Business Days Day period) shall be two (or2) Business Days) if, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may but only be made once with respect to any such Takeover Proposal and each material modification thereto)if, (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (va) the Company LSBG Board has complied with the other provisions of this Section 6.02, (w) the Company Board determines reasonably determined in good faith (faith, after consultation with its and having considered the advice of outside legal counsel) counsel and its financial advisor, that the failure to take such action actions would be inconsistent with the exercise of reasonably likely to violate its fiduciary duties to LSBG’s stockholders under applicable Law, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”)law, and (zb) if requested in writing by Acquiror(i) during such five (5) Business Day period or two (2) Business Day Period (as the case may be), the Company LSBG has negotiated, and has caused used its Subsidiaries reasonable best efforts to cause its financial and its and their respective Representatives tolegal advisors to negotiate, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror BHB in good faith during the four (4) Business Day period after to make such Notice of Intended Recommendation Change to amend adjustments, modifications or amendments in the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior such Acquisition Proposal would no longer constitutes constitute a Superior Proposal and (ii) at the end of such four five (45) Business Day period or two (2) Business Day period (as it the case may be extended pursuant be), after taking into account any such adjusted, modified or amended terms as may have been committed to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to writing by BHB since its receipt of such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms Notice of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company BHB shall not have first complied with its obligations in Section 6.02(e).
(g) Notwithstanding anything any obligation to the contrary contained in this Section 6.02 propose any adjustments, modifications or elsewhere in this Agreement, the Company Board may, at any time prior amendments to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement), which eventthe LSBG Board has again in good faith made the determination (x) in clause (a) of this Section 5.11, development and (y) that such Acquisition Proposal constitutes a Superior Proposal. Notwithstanding the foregoing, the withdrawal, changing, qualifying or modifying of the LSBG Recommendation or the making of a Change in Recommendation by the LSBG Board shall not change the approval of the LSBG Board for purposes of causing any applicable “moratorium,” “control share,” “fair price,” “takeover,” “interested stockholder” or similar law to be inapplicable to this Agreement and the LSBG Voting Agreements and the transactions contemplated hereby and thereby, including the Merger.
(c) LSBG shall immediately cease and cause to be terminated any existing discussions or negotiations with any Persons (other than BHB) conducted heretofore with respect to any of the foregoing, and shall use reasonable best efforts to cause all Persons other than BHB who have been furnished confidential information regarding LSBG in circumstance, connection with the solicitation of or any material consequences thereof, becomes known to discussions regarding an Acquisition Proposal within the Company Board twelve (12) months prior to the Acceptance Time (date hereof promptly to return or destroy such information. LSBG agrees not to release any third party from the confidentiality and standstill provisions of any agreement to which LSBG is or may become a party, and shall immediately take all steps necessary to terminate any approval that may have been heretofore given under any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall provisions authorizing any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: Person (xother than BHB) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation ChangeAcquisition Proposal. LSBG shall ensure that the directors, with a written notice specifying officers, employees, agents and representatives (including any investment bankers, financial advisors, attorneys, accountants or other retained representatives) of LSBG are aware of the date and time restrictions described in this Section 5.11 as reasonably necessary to avoid violations thereof. It is understood that any violation of such meetingthe restrictions set forth in this Section 5.11 by any director, officer, employee, agent or representative (including any investment banker, financial advisor, attorney, accountant or other retained representative) of LSBG, at the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent direction or with the exercise consent of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt LSBG, shall be deemed to be a breach of this Section 5.11 by Acquiror of a writLSBG.
Appears in 2 contracts
Sources: Merger Agreement (Lake Sunapee Bank Group), Merger Agreement (Bar Harbor Bankshares)
No Solicitation. (a) Until The Company shall and shall cause its Representatives to immediately cease any and all existing discussions, communications or negotiations with any Person conducted heretofore with respect to any Acquisition Proposal.
(b) Subject to Section 5.2(c), at all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the Effective Time and the valid termination of this Agreement pursuant to Section 8.01Article IX and the Effective Time, the Company shall not, nor shall it authorize or permit any of its Representatives to, directly or indirectly, (i) initiate, solicit or encourage, or take any action to facilitate the making of, any offer or proposal which constitutes or is reasonably likely to lead to an Acquisition Proposal, (ii) furnish to any Person (other than Parent, Merger Sub or any esignees of Parent or Merger Sub) any non-public information concerning the Company’s business, assets (tangible and intangible) or properties with the intent to induce the making, submission or announcement of, or the intent to encourage, facilitate or assist, an Acquisition Proposal or the making of any proposal or other communication that would reasonably be expected to lead to an Acquisition Proposal, (iii) participate or engage in discussions or negotiations with any Person with respect to an Acquisition Proposal, or (iv) negotiate, approve, recommend or enter into any Contract with respect to any Acquisition Transaction. The Company agrees that any material violation of the restrictions set forth in this Section 5.2(b) by it or any of its Representatives who is (x) a director or officer of the Company or any Subsidiary, (y) a senior-level employee (i.e., managing director (or similar title) or above) of any financial advisor retained by the Company or (z) a partner of any law firm retained by the Company or any other Person acting with the actual authority of the Company (such Representatives and Persons collectively, “Senior Representatives”) shall be deemed a material breach of this Agreement by the Company.
(c) Notwithstanding anything to the contrary set forth in this Section 5.2, prior to the Effective Time, the Company Board, may, directly or indirectly through the Company’s Representatives, (i) participate or engage in discussions or negotiations with any Person that has, in the absence of any material violation of Section 5.2(b) by the Company, made a bona fide, written and unsolicited Acquisition Proposal and that the Company Board determines in good faith, After Consultation, either constitutes or would reasonably be expected to lead to a Superior Proposal, and/or (ii) furnish to any Person that has, in the absence of any material violation of Section 5.2(b) by the Company, made an Acquisition Proposal of the type referred to in clause (i), any non-public information relating to the Company or any of its Subsidiaries and/or afford to any Person that has, in the absence of any material violation of Section 5.2(b) by the Company, made such an Acquisition Proposal access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries, in each case under this clause (ii) pursuant to a confidentiality agreement that is no less favorable to the Company, in the aggregate, than the Confidentiality Agreement; provided, however, that in the case of any action taken pursuant to the preceding clauses (i) or (ii), (A) the Company Board shall have determined in good faith After Consultation that the failure to take such action would reasonably be expected to be inconsistent with the fiduciary duties of directors of a Delaware corporation under Delaware Law, (B) within twenty four (24) hours following such determination, the Company gives Parent written notice of the identity of such Person and the material terms of such Acquisition Proposal including any modifications thereto (unless such Acquisition Proposal is in written form, in which case the Company shall give Parent a copy thereof including any modifications thereto) and of the Company’s intention to participate or engage in discussions or negotiations with, or furnish non-public information to, such Person, and shall in no event begin providing such information to such Person prior to providing such notice to the Parent. For purposes of this Section 5.2, it is hereby clarified that the fact that the Company and its Representatives have previously engaged in any discussions or negotiations with a Person shall not prevent by itself an Acquisition Proposal made by such Person from being considered unsolicited.
(d) In addition to the obligations of the Company set forth in Section 5.2(b), the Company shall promptly (and in any event within twenty-four (24) hours from the time at which the Company becomes aware) notify Parent in writing if the Company becomes aware of the receipt by the Company or any of its Representatives of (i) any Acquisition Proposal, (ii) any request for information that would reasonably be expected to lead to an Acquisition Proposal, or (iii) any inquiry with respect to, or which would reasonably be expected to lead to, any Acquisition Proposal, the terms and conditions of such Acquisition Proposal, request or inquiry (unless such Acquisition Proposal, request or inquiry is in written form, in which case the Company shall give Parent a copy thereof), and the identity of the Person or group making any such Acquisition Proposal, request or inquiry. The Company shall keep Parent reasonably informed of the terms and the status of any such Acquisition Proposal, request or inquiry on a prompt basis, and in any event no later than twenty-four (24) hours after the occurrence of any material changes to any such Acquisition Proposal (including the terms and conditions thereof and of any modification thereto), and any developments, discussions and negotiations concerning any such Acquisition Proposal, including furnishing copies of any written inquiries, correspondence and draft documentation, and written summaries of any material oral inquiries or discussions.
(e) The Company shall not, and shall cause its Subsidiaries and its and their respective Representatives not to, directly or indirectlyenter into any agreement with any Person subsequent to the date of this Agreement that would restrict the Company’s ability to provide to the Parent the information described in this Section 5.2, (i) solicit, initiate, knowingly facilitate or knowingly encourage and neither the submission or announcement Company nor any of any inquiries, proposals or offers that constitute or would reasonably be expected to lead its Subsidiaries is currently party to any Takeover Proposal, (ii) provide any non-public information concerning agreement that prohibits the Company or its Subsidiaries from providing the information described in this Section 5.2 to any Person or group in connection with any Takeover Proposal, or engage in any discussions or negotiations with respect to any Takeover Proposal, (iii) approve, support, adopt, endorse or recommend any Takeover Proposal, (iv) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve or agree to do any of the foregoingParent. The Company (A) except to the extent inconsistent with the fiduciary duties of directors of a Delaware corporation under applicable Delaware Law, shall not, and shall cause its Subsidiaries not to, terminate, waive, amend or modify, or grant permission under, any standstill provision in any confidentiality agreement to which it or any of its Subsidiaries is or becomes a party (other than as occurs in accordance with the terms of any such standstill provision in effect as of the date hereof), and (B) shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause use reasonable best efforts to be terminated enforce such standstill provisions if it becomes aware of any solicitation, encouragement, discussion or negotiation with material breach of any Person or groups that may be ongoing with respect to any Takeover Proposal or potential Takeover Proposal. such standstill provision by the party subject thereto.
(f) The Company shall promptly (but in no event later than two (2) Business Days after the date hereof request of this Agreement) (i) demand that each Person (if any) individual or entity that has heretofore executed a confidentiality agreement since February 27, 2014 in connection with any potential Acquisition Proposal return (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return destroy, to the Company extent permitted by the terms of the applicable confidentiality agreement) all confidential information furnished to such individual or destroy all non-public documents and materials relating to the Takeover Proposal entity by or to on behalf of the Company or any of its Subsidiaries or any of its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such the applicable confidentiality agreement. None , and (ii) revoke or withdraw access of any Person (other than Parent, Merger Sub and their Representatives) to any data room (virtual or actual) containing any non-public information with respect to the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received a bona fide, written Takeover Proposal from any Person or group that did not result from a breach of this Section 6.02, and (ii) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or could reasonably be expected to result in a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, (A) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group making such Takeover Proposal; provided, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover an Acquisition Proposal.
(d) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable Law, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e).
(g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writ
Appears in 2 contracts
Sources: Merger Agreement (Lumenis LTD), Merger Agreement (Lumenis LTD)
No Solicitation. (a) Until the earlier None of the Effective Time and the valid termination of this Agreement pursuant to Section 8.01First Charter, the Company shall not, and shall cause its Subsidiaries and or any officer, director, employee, agent or representative (including any investment banker, financial advisor, attorney, accountant or other retained representative) of First Charter or any of its and their respective Representatives not to, Subsidiaries shall directly or indirectly, indirectly (i) solicit, initiate, knowingly encourage, facilitate (including by way of furnishing information) or knowingly encourage take any other action designed to facilitate any inquiries or proposals regarding any merger, share exchange, consolidation, sale of assets, sale of shares of capital stock (including by way of a tender offer) or similar transactions involving First Charter or any of its Subsidiaries that, if consummated, would constitute an Alternative Transaction (any of the submission foregoing inquiries or announcement of any inquiries, proposals or offers that constitute or would reasonably be expected being referred to lead to any Takeover herein as an “Alternative Proposal”), (ii) provide any non-public information concerning the Company or its Subsidiaries to any Person or group in connection with any Takeover Proposal, or engage participate in any discussions or negotiations with respect to any Takeover Proposalregarding an Alternative Transaction, (iii) approve, support, adopt, endorse enter into any agreement regarding any Alternative Transaction or recommend any Takeover Proposal, (iv) take any action to make render the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the Corporation Law) Rights Agreement inapplicable to any Person other than Acquiror an Alternative Proposal or the transactions contemplated thereby. Notwithstanding the foregoing, the First Charter Board and its Affiliates or to any transactions constituting or contemplated representatives shall be permitted, before the approval of this Agreement by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve or agree to do any of the foregoing. The Company shallFirst Charter’s shareholders, and shall cause its Subsidiaries subject to compliance with the other terms of this Section 6.10 and its and their respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with any Person or groups that may be ongoing with respect to any Takeover Proposal or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed first entering into a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company or any of its Subsidiaries or any of its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the person proposing such Alternative Proposal on terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent substantially similar to, and no less favorable to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary First Charter than, those contained in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates furnish nonpublic information regarding First Charter to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received a bona fide, written Takeover Proposal from any Person or group that did not result from a breach of this Section 6.02person, and (ii) the Company Board determines to consider and participate in good faith, after consultation with its financial advisor discussions and outside legal counsel, that such Takeover Proposal constitutes or could reasonably be expected to result in a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, (A) furnish information (including non-public information) negotiations with respect to the Company and its Subsidiaries to the Person or group making such Takeover Proposal; provided, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making such Takeover bona fide Alternative Proposal regarding such Takeover Proposal; provided, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, received by First Charter and, in connection with such noticeAlternative Proposal, and subject to render inapplicable to such person the existing terms of confidentiality obligations of the Company as in place as of the date of this Rights Agreement, provide the material terms and conditions of any such inquiry, proposal, offer or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (v) to the Company has complied with extent that and so long as the other provisions of this Section 6.02, (w) the Company First Charter Board reasonably determines in good faith (after consultation with its outside legal counsel) that the failure to take such action do so would be inconsistent with the exercise of cause it to violate its fiduciary duties under applicable Law, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Lawduties.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e).
(g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writ
Appears in 2 contracts
Sources: Agreement and Plan of Merger (First Charter Corp /Nc/), Merger Agreement (First Charter Corp /Nc/)
No Solicitation. (a) Until From and after the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 8.01date hereof, the Company ▇▇▇▇ Atlantic shall not, and nor shall cause it permit any of its Subsidiaries and to, nor shall it authorize or permit any of its and their respective Representatives not officers, directors or employees or any investment banker, financial advisor, attorney, accountants or other representatives retained by it or any of its Subsidiaries to, directly or indirectlyindirectly through another person, (i) solicit, initiateinitiate or encourage (including by way of furnishing information), knowingly facilitate or knowingly encourage the submission take any other action designed to facilitate, any Alternative Transaction (as hereinafter defined) or announcement of any inquiries, proposals or offers that constitute or would reasonably be expected to lead to any Takeover Proposal, (ii) provide any non-public information concerning the Company or its Subsidiaries to any Person or group in connection with any Takeover Proposal, or engage participate in any discussions or negotiations with respect to regarding any Takeover ProposalAlternative Transaction; provided, (iii) approvehowever, supportthat if, adopt, endorse or recommend any Takeover Proposal, (iv) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve or agree to do any of the foregoing. The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with any Person or groups that may be ongoing with respect to any Takeover Proposal or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company or any of its Subsidiaries or any of its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to approval of the Acceptance TimeStock Issuance and the Certificate Amendment by the holders of ▇▇▇▇ Atlantic Common Stock, the Board of Directors of ▇▇▇▇ Atlantic determines in good faith, after receipt of advice from outside counsel, that the failure to provide such information or participate in such negotiations or discussions would result in a reasonable possibility that the Board of Directors of ▇▇▇▇ Atlantic would breach their fiduciary duties to stockholders under applicable law, ▇▇▇▇ Atlantic may, in response to any such proposal that has been determined by it to be a ▇▇▇▇ Atlantic Superior Proposal (i) the Company has received a bona fideas defined in Section 7.2(b)), written Takeover Proposal from any Person or group that was not solicited by it and that did not otherwise result from a breach of this Section 6.026.3(a), and (ii) the Company Board determines in good faith, after consultation with subject to ▇▇▇▇ Atlantic giving GTE at least two business days written notice of its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or could reasonably be expected intention to result in a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposaldo so, (Ax) furnish information (including non-public information) with respect to the Company ▇▇▇▇ Atlantic and its Subsidiaries to any person pursuant to a customary confidentiality agreement containing terms no less restrictive than the Person or group making terms of the Nondisclosure Agreement dated July 19, 1998 entered into between ▇▇▇▇ Atlantic and GTE (the "Nondisclosure Agreement"), provided that a copy of all such Takeover Proposal; providedinformation is delivered simultaneously to GTE, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, participate in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company proposal. ▇▇▇▇ Atlantic shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror GTE orally and in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives of any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from of any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, proposal in connection with such noticean Alternative Transaction, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, provide the material terms and conditions of such request or proposal (including a copy thereof, if in writing, and all other documentation and any such inquiry, proposal, offer or request related correspondence) and the nature identity of the person making such request, and thereafter the Company shall request or proposal. ▇▇▇▇ Atlantic will keep Acquiror GTE reasonably informed on a prompt and timely basis of the status and material details (including amendments or proposed amendments) of discussions such request or proposal on a current basis. ▇▇▇▇ Atlantic shall immediately cease and terminate any existing solicitation, initiation, encouragement, activity, discussion or negotiation with any persons conducted heretofore by ▇▇▇▇ Atlantic or its representatives with respect thereto, including any material changes to the terms foregoing. ▇▇▇▇ Atlantic (i) agrees not to release any Third Party (as defined below) from, or waive any provision of, or fail to enforce, any standstill agreement or similar agreements to which it is a party related to, or which could affect, an Alternative Transaction and agrees that GTE shall be entitled to enforce ▇▇▇▇ Atlantic's rights and remedies under and in connection with such agreements and (ii) acknowledges that the provisions of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, clause (i) are an important and subject to the existing terms of confidentiality obligations of the Company as in place as of the date integral part of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable Law, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law.
(f) . Nothing contained in this Agreement Section 6.3(a) or Section 7.2 shall prohibit the Company or the Company Board ▇▇▇▇ Atlantic (i) from taking and disclosing to the Company’s its stockholders a position with respect to a tender offer contemplated by a third party pursuant to Rules 14d-9 and Rule 14e-9 or Rule 14e-2(a) promulgated under the Exchange Act or (ii) from issuing making any disclosure to its stockholders if, in the good faith judgment of the Board of Directors of ▇▇▇▇ Atlantic, after receipt of advice from outside counsel, failure to disclose would result in a “stopreasonable possibility that the Board of Directors of ▇▇▇▇ Atlantic would breach its fiduciary duties to ▇▇▇▇ Atlantic's stockholders under applicable law.
(b) From and after the date hereof, look and listen” communicationGTE shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any of its officers, directors or employees or any investment banker, financial advisor, attorney, accountants or other representatives retained by it or any of its Subsidiaries to, directly or indirectly through another person, (i) solicit, initiate or encourage (including by way of furnishing information), or knowingly take any other action designed to facilitate, any Alternative Transaction (as hereinafter defined) or (ii) participate in any discussions regarding any Alternative Transaction; provided, however, that if, at any time prior to approval of this Agreement by the holders of GTE Common Stock, the Board of Directors of GTE determines in good faith, after receipt of advice from outside counsel, that the failure to provide such information or participate in such negotiations or discussions would result in a reasonable possibility that the Board of Directors of GTE would breach their fiduciary duties to stockholders under applicable law, GTE may, in response to a proposal that has been determined by it to be a GTE Superior Proposal (as defined in Section 7.2(d)), that was not solicited by it and that did not otherwise result from a breach of this Section 6.3(b), and subject to GTE giving ▇▇▇▇ Atlantic at least two business days written notice of its intention to do so, (x) furnish information with respect to GTE and its Subsidiaries to any person pursuant to a customary confidentiality agreement containing terms no less restrictive than the terms of the Nondisclosure Agreement, provided that a copy of all such information is delivered simultaneously to ▇▇▇▇ Atlantic, and (y) participate in negotiations regarding such proposal. GTE shall promptly notify ▇▇▇▇ Atlantic orally and in writing of any request for information or of any proposal in connection with an Alternative Transaction, the material terms and conditions of such request or proposal (including a copy thereof, if in writing, and all other documentation and any related correspondence) and the identity of the person making such request or proposal. GTE will keep ▇▇▇▇ Atlantic reasonably informed of the status and details (including amendments or proposed amendments) of such request or proposal on a current basis. GTE shall immediately cease and terminate any existing solicitation, initiation, encouragement, activity, discussion or negotiation with any persons conducted heretofore by GTE or its representatives with respect to the foregoing. GTE (i) agrees not to release any Third Party from, or waive any provision of, or fail to enforce, any standstill agreement or similar agreements to which it is a party related to, or which could affect, an Alternative Transaction and agrees that ▇▇▇▇ Atlantic shall be entitled to enforce GTE's rights and remedies under and in connection with such agreements and (ii) acknowledges that the provisions of clause (i) are an important and integral part of this Agreement. Nothing contained in this Section 6.3(b) or in Section 7.2 shall prohibit GTE (i) from taking and disclosing to its stockholders a position contemplated by Rule 14d-9(f14e-9 or Rule 14e-2(a) promulgated under the Exchange Act and in accordance therewith, pending or (ii) from making any disclosure of to its position thereunder, and the issuance of any such communication shall notstockholders if, in and the good faith judgment of itselfthe Board of Directors of GTE, constitute an Adverse Recommendation Change for after receipt of advice from outside counsel, failure to disclose would result in a reasonable possibility that the Board of Directors of GTE would breach its fiduciary duties to GTE's stockholders under applicable law.
(c) For purposes of this Agreement; provided, however"Alternative Transaction" means, that no Adverse Recommendation Change whether in the form of a proposal or intended proposal, a signed agreement or completed action, as the case may be made unless the Company shall have first complied with its obligations in Section 6.02(e).
(g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreementbe, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: of (i) there shall occur a transaction or arise after series of transactions pursuant to which any person (or group of persons) other than ▇▇▇▇ Atlantic and its Subsidiaries and other than GTE and its Subsidiaries (a "Third Party") acquires or would acquire, directly or indirectly, beneficial ownership (as defined in Rule 13d-3 under the date Exchange Act) of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as more than 20% of the date outstanding shares of this Agreement and does not relate ▇▇▇▇ Atlantic or GTE, as the case may be, whether from ▇▇▇▇ Atlantic or GTE or pursuant to a tender offer or exchange offer or otherwise, (ii) any Takeover Proposal acquisition or the terms and conditions of this Agreement, which event, development or change in circumstanceproposed acquisition of, or business combination with, ▇▇▇▇ Atlantic or any material consequences thereofof its Significant Subsidiaries or GTE or any of its Significant Subsidiaries, becomes known to as the Company Board prior to case may be, by a merger or other business combination (including any so-called "merger-of-equals" and whether or not ▇▇▇▇ Atlantic or any of its Significant Subsidiaries or GTE or any of its Significant Subsidiaries, as the Acceptance Time (case may be, is the entity surviving any such material eventmerger or business combination) or (iii) any other transaction pursuant to which any Third Party acquires or would acquire, material development directly or material change in circumstances unrelated to a Takeover Proposal being referred to indirectly, control of assets (including for this purpose the outstanding equity securities of Subsidiaries of ▇▇▇▇ Atlantic or GTE, as an “Intervening Event”); providedthe case may be, however that in no event shall and any entity surviving any merger or business combination including any of them) of ▇▇▇▇ Atlantic or any of its Subsidiaries or GTE or any of its Subsidiaries, as the following constitutecase may be, for consideration equal to 20% or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume more of the fair market value of all of the outstanding shares of ▇▇▇▇ Atlantic Common Stock or all of the outstanding shares of GTE Common Stock, (y) as the reasonably foreseeable consequences of the announcement of this Agreementcase may be, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of on the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writ.
Appears in 2 contracts
Sources: Merger Agreement (Gte Corp), Merger Agreement (Bell Atlantic Corp)
No Solicitation. (a) Until From and after the earlier of the Effective Time and the valid termination date of this Agreement pursuant until such time, if any, as Bluegreen’s shareholders approve this Agreement in accordance with the MBCA, subject to Section 8.017.3(b), without the Company shall prior written consent of Woodbridge, Bluegreen will not, and shall cause will not permit its Subsidiaries and its and their respective Representatives not directors, officers, employees, investment bankers, attorneys, accountants or other Representatives, agents or Affiliates to, directly or indirectly, (i) solicit, initiate, knowingly facilitate initiate or knowingly encourage the submission or announcement of any inquiries, proposals or offers that constitute or would reasonably be expected to lead to any Takeover Proposal, (ii) provide any non-public information concerning the Company or its Subsidiaries to any Person or group in connection with any Takeover Proposal, or engage in any discussions or negotiations with respect to any Takeover Proposal, (iii) approve, support, adopt, endorse or recommend any Takeover Proposal, (iv) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve or agree to do any of the foregoing. The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with any Person or groups that may be ongoing with respect to any Takeover Proposal or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company Acquisition Proposals or any of its Subsidiaries inquiries or any of its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event inform a Person or group proposals that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received a bona fide, written Takeover Proposal from any Person or group that did not result from a breach of this Section 6.02, and (ii) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or could reasonably be expected to result in a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, (A) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group making such Takeover Proposal; provided, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover ProposalAcquisition Proposals, (ii) engage in negotiations or discussions concerning, or provide any initial request for non-public information concerning to any Person in connection with, any Acquisition Proposal or under circumstances that could reasonably be expected to result in an Acquisition Proposal or (iii) agree to, approve, recommend or otherwise endorse or support any Acquisition Proposal. As used herein, the Company term “Acquisition Proposal” shall mean any proposal relating to a possible (A) merger, consolidation, share exchange, business combination or similar transaction involving Bluegreen or any of its Subsidiaries, (B) sale, lease, exchange, transfer or other disposition (other than sales of inventory in the ordinary course of business consistent with past practices), directly or indirectly, by merger, consolidation, share exchange or otherwise (whether in one or more transactions), of all or substantially all of the assets of Bluegreen and its Subsidiaries from on a consolidated basis, (C) liquidation, dissolution, recapitalization or other similar type of transaction involving Bluegreen or any of its Subsidiaries, (D) tender offer or exchange offer for ten percent (10%) or more of the outstanding shares of Bluegreen Common Stock, or other transaction involving Bluegreen in which any Person or group who has made shall acquire or would reasonably be expected have the right to make any Takeover Proposal, acquire beneficial ownership of ten percent (10%) or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations more of the Company as outstanding shares of Bluegreen Common Stock or (E) transaction which is similar in place as of the date of this Agreementform, provide the material terms and conditions of any such inquiry, proposal, offer substance or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes purpose to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable Law, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreementtransactions; provided, however, that no Adverse Recommendation Change may be made unless the Company term “Acquisition Proposal” shall have first complied not include the Merger and the transactions contemplated hereby or related thereto (or any modification thereof or proposal relating thereto). Bluegreen will, and will direct all of its directors, officers, employees, investment bankers, attorneys, accountants and other Representatives, agents and Affiliates to, immediately cease any and all existing activities, discussions or negotiations with its obligations in Section 6.02(e).
(g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate parties conducted heretofore with respect to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writAcquisition Proposal.
Appears in 2 contracts
Sources: Merger Agreement (BFC Financial Corp), Merger Agreement (Bluegreen Corp)
No Solicitation. (a) Until On the earlier of the Effective Time and the valid termination date of this Agreement pursuant to Section 8.01Agreement, the Company shall not, and shall cause its Subsidiaries and its and their respective Representatives not to, directly or indirectly, (i) solicit, initiate, knowingly facilitate or knowingly encourage the submission or announcement of any inquiries, proposals or offers that constitute or would reasonably be expected to lead to any Takeover Proposal, (ii) provide any non-public information concerning the Company or its Subsidiaries to any Person or group in connection with any Takeover Proposal, or engage in any discussions or negotiations with respect to any Takeover Proposal, (iii) approve, support, adopt, endorse or recommend any Takeover Proposal, (iv) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve or agree to do any of the foregoing. The Company shall, and shall cause each of its Subsidiaries and each of its and their its Subsidiaries’ respective Representatives toofficers, directors, employees, consultants, agents, advisors, Affiliates and other representatives (collectively, “Representatives”) to (i) immediately cease and cause to be terminated any solicitation, encouragement, discussion discussions or negotiation negotiations with any Person or groups Persons that may be ongoing with respect to any Takeover Proposal or potential a Takeover Proposal, and (ii) request such Person to promptly return or destroy all confidential information concerning the Company and the Company’s Subsidiaries. The Except as permitted by this Section 5.2, the Company shall promptly after and shall cause each of its Subsidiaries and Representatives not to, from the date hereof request each Person of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article VII, directly or indirectly, (if anyA) solicit, initiate or knowingly facilitate or encourage (including by way of furnishing non-public information) any inquiries regarding, or the making of any proposal or offer that has heretofore executed constitutes, or could reasonably be expected to lead to, a confidentiality agreement Takeover Proposal, (B) engage in, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any other than party information in connection with or for the Confidentiality Agreement) relating to purpose of encouraging or facilitating, a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company or any of its Subsidiaries or any of its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall (C) enter into any confidentiality letter of intent, agreement subsequent or agreement in principle with respect to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this AgreementProposal.
(b) Notwithstanding anything to the contrary contained in this Agreementherein, if at any time on or after the date of this Agreement and prior to the Acceptance Time, (i) obtaining the Company has received Stockholder Approval, the Company or any of its Representatives receives a bona fide, written Takeover Proposal from any Person Person, which Takeover Proposal was made or group renewed on or after the date of this Agreement and that did not result from a any breach of this Section 6.025.2, and (ii) if the Board of Directors of the Company Board determines in good faith, after consultation with its independent financial advisor advisors and outside legal counsel, that failure to take such action would be inconsistent with the directors’ fiduciary duties under applicable Law and that such Takeover Proposal constitutes or could is reasonably be expected to result in lead to a Superior Proposal, then the Company mayand its Representatives may (x) furnish, upon receipt of pursuant to an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover ProposalAgreement, (A) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group making of Persons who has made such Takeover Proposal; provided, provided that (x) the Company shall substantially concurrently promptly provide to Acquiror Parent any material non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and given such access which was not previously provided to Acquiror Parent or its Representatives; and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company engage in or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage otherwise participate in discussions or negotiations with the Person or group of Persons making such Takeover Proposal regarding such Takeover Proposal; provided, however, further that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall promptly provide written notice to Acquiror Parent (and in any event within 48 hours) (i) a copy of such determination of any Takeover Proposal made in writing provided to the Company Board as provided for in clause (ii) aboveor any of its Subsidiaries, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) and the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or and (ii) a written summary of the material terms of any initial request for non-public information concerning such Takeover Proposal not made in writing. From and after the date hereof, the Company shall not grant any waiver, amendment or its Subsidiaries from release under any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to standstill agreement without the existing terms prior written consent of confidentiality obligations of Parent. For the Company as in place as of the date purposes of this Agreement, provide the material terms “Acceptable Confidentiality Agreement” means any confidentiality and conditions of any such inquiry, proposal, offer or request and the nature of such request, and thereafter standstill agreement that contains provisions that are no less favorable to the Company shall keep Acquiror reasonably informed on a prompt and timely basis of than those contained in the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Confidentiality Agreement, it being understood that such confidentiality agreements need not prohibit the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies submission of all written inquiries, requests, proposals Takeover Proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification amendments thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement Board of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”)Directors.
(e) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable Law, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e).
(g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writ
Appears in 2 contracts
Sources: Merger Agreement (Aeroways, LLC), Merger Agreement (Cke Restaurants Inc)
No Solicitation. (a) Until No Solicitation or Negotiation. From and after the earlier of the Effective Time and the valid termination date of this Agreement until March 31, 2003, unless earlier terminated pursuant to Section 8.011.2 hereof (the "Exclusivity Period"), and except as set forth in this Section 1.1, the Company shall not, nor shall it authorize or permit any of its subsidiaries or any of its or its subsidiaries' respective directors, officers, investment bankers, attorneys, accountants or other advisors or representatives retained by them (such directors, officers, employees, investment bankers, attorneys, accountants, other advisors and shall cause its Subsidiaries and its and their respective Representatives not torepresentatives, collectively, "Representatives") to directly or indirectly, :
(i) solicit, initiate, knowingly facilitate or knowingly encourage or induce the submission or announcement making of any inquiriesAcquisition Proposal (as defined in Section 1.1(e)), proposals including without limitation to amend or offers that constitute grant any waiver or would reasonably be expected to lead release under any standstill or similar agreement with respect to any Takeover Proposal, equity securities of the Company; or
(ii) provide any non-public information concerning the Company enter into, continue or its Subsidiaries to any Person or group in connection with any Takeover Proposal, or engage otherwise participate in any discussions or negotiations regarding, furnish to any person any information with respect to any Takeover Proposalto, (iii) approve, support, adopt, endorse or recommend any Takeover Proposal, (iv) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiationseffort by any person with respect to, or (vi) resolve or agree otherwise cooperate in any way with, any Acquisition Proposal. Notwithstanding the foregoing, during the Exclusivity Period, the Company may, to do any the extent required by the fiduciary obligations of the foregoing. The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with any Person or groups that may be ongoing with respect to any Takeover Proposal or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to board of directors of the Company or destroy all non-public documents and materials relating to (the Takeover Proposal or to the "Company or any of its Subsidiaries or any of its and their respective businessesBoard"), operations or affairs heretofore furnished as determined in good faith by the Company or its Subsidiaries or any of their respective Representatives Board after consultation with outside counsel, in response to such Person or group or any of such Person’s or group’s Representatives a Superior Proposal (as defined in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(b1.1(e)) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received a bona fide, written Takeover Proposal from any Person or group that did not result from a breach by Company of this Section 6.021.1, and (ii) the Company Board determines in good faith, after consultation subject to compliance with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or could reasonably be expected to result in a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover ProposalSection 1.1(c), (Ax) furnish information (including non-public information) with respect to the Company to the person making such Superior Proposal and its Subsidiaries Representatives pursuant to a customary confidentiality agreement not less restrictive of the Person or group making other party than the Confidentiality Agreement (as defined in Section 1.1(e)), provided that any such Takeover Proposal; provided, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and Parent shall be concurrently provided to Parent as well, (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage participate in discussions or negotiations with the Person making such Takeover Proposal person and its Representatives regarding such Takeover Proposal; provided, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable Law, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the enter into a definitive agreement or other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) documents with respect to such Superior Proposal; providedProposal with such person after complying with all applicable obligations of the Company set forth in Article II hereof. Without limiting the foregoing, further, that in the event that there it is any material amendment to the terms of any Superior Proposal (provided, agreed that any revision violation of the restrictions set forth in this Section 1.1(a) by any Representative of the Company or any of its subsidiaries, whether or not such person is purporting to act on behalf of the amountCompany or otherwise, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror breach of such material revision in compliance with this Section 6.02(c1.1(a) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e).
(g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writ
Appears in 2 contracts
Sources: Exclusivity and Right of First Refusal Agreement (Vari L Co Inc), Exclusivity and Right of First Refusal Agreement (Sirenza Microdevices Inc)
No Solicitation. (a) Until the earlier of the Effective Time and the valid termination of Except as expressly permitted by this Agreement pursuant to Section 8.015.3, the Company shall notshall, and shall cause each of its Subsidiaries Affiliates and its and their respective officers, directors and employees to, and shall use reasonable best efforts to cause the agents, financial advisors, investment bankers, attorneys, accountants and other representatives (collectively “Representatives”) of the Company or any of its Affiliates to: (A) immediately cease any ongoing solicitation, knowing encouragement, discussions or negotiations with any persons that may be ongoing with respect to a Takeover Proposal, and promptly instruct (to the extent it has contractual authority to do so and has not already done so prior to the date of this Agreement) or otherwise request, any person that has executed a confidentiality or non-disclosure agreement within the 24-month period prior to the date of this Agreement in connection with any actual or potential Takeover Proposal to return or destroy all such information or documents or material incorporating confidential information in the possession of such person or its Representatives not toand (B) until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article VII, not, directly or indirectly, (i1) solicit, initiate, initiate or knowingly facilitate or knowingly encourage (including by way of furnishing any non-public information) any inquiries regarding, or the submission or announcement making of any inquiriesproposal or offer that constitutes, proposals or offers that constitute or would could reasonably be expected to lead to any to, a Takeover Proposal, (ii2) provide engage in, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any other person any non-public information concerning in connection with or for the purpose of encouraging or facilitating, a Takeover Proposal (other than, solely in response to an unsolicited inquiry, to refer the inquiring person to this Section 5.3 and to limit its conversation or other communication exclusively to such referral), or (3) approve, recommend or enter into, or propose to approve, recommend or enter into, any letter of intent or similar document, agreement, commitment, or agreement in principle (whether written or oral, binding or nonbinding) with respect to a Takeover Proposal (an “Alternative Acquisition Agreement”). Except to the extent necessary to take any actions that the Company or any third party would otherwise be permitted to take pursuant to this Section 5.3 (and in such case only in accordance with the terms hereof), (A) the Company and its Subsidiaries to shall not release any Person or group in connection with any Takeover Proposalthird party from, or engage waive, amend or modify any provision of, or grant permission under, (1) any standstill provision in any discussions agreement to which the Company or negotiations any of its Subsidiaries is a party or (2) any confidentiality provision in any agreement to which the Company or any of its Subsidiaries is a party other than, with respect to this clause (2), any waiver, amendment, modification or permission under a confidentiality provision that does not, and would not be reasonably likely to, facilitate, encourage or relate in any way to a Takeover Proposal, (iii) approve, support, adopt, endorse or recommend any Takeover Proposal, (iv) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, Proposal or a third party becoming an “interested stockholder” under, Section 203 of potential Takeover Proposal and (B) the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve or agree to do any of the foregoing. The Company shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to enforce the confidentiality and standstill provisions of any such agreement, and the Company shall, and shall cause its and Subsidiaries to, immediately take all steps within their power necessary to terminate any waiver that may have been heretofore granted, to any person other than Parent or any of Parent’s Affiliates, under any such provisions; provided that the Company shall be permitted not to enforce any standstill or similar provision of any agreement if (i) the counterparty to such agreement has approached the Company on an unsolicited basis with a Takeover Proposal other than in connection with or as a result of a breach of this Section 5.3 by the Company, its Affiliates or its or their respective Representatives toand (ii) the Company Board of Directors has determined in good faith, immediately cease after consultation with its outside financial advisors and cause legal counsel, that the failure to take such action would reasonably be likely to be terminated any solicitation, encouragement, discussion or negotiation inconsistent with any Person or groups that may be ongoing with respect to any Takeover Proposal or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company or any Board of its Subsidiaries or any of its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this AgreementDirectors’ fiduciary duties under applicable Law.
(b) Notwithstanding anything to the contrary contained in this AgreementSection 5.3(a), if at any time from and after the date of this Agreement and prior to the Acceptance Time, (i) obtaining the Company has received Shareholder Approval, the Company, directly or indirectly receives a bona fide, unsolicited written Takeover Proposal from any Person or group person that did not result from a breach of this Section 6.025.3 by the Company, its Affiliates and (ii) the Company’s and its Affiliates’ Representatives and if the Company Board of Directors determines in good faith, after consultation with its outside financial advisor advisors and outside legal counsel, that such Takeover Proposal constitutes or could would reasonably be expected to result in lead to a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person directly or group making such Takeover Proposalindirectly, (A) furnish furnish, pursuant to an Acceptable Confidentiality Agreement, information (including non-public information) with respect to the Company and its Subsidiaries Subsidiaries, and afford access to the Person or group making business, properties, assets, employees, officers, Contracts, books and records of the Company and its Subsidiaries, to the person that has made such Takeover ProposalProposal and its Representatives and potential sources of funding; provided, that (x) the Company shall substantially concurrently with the delivery to such person provide to Acquiror Parent any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company or any of its Subsidiaries from any Person that is provided or group who has made or would reasonably be expected available to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, person or its Representatives unless such non-public information has been previously provided or their respective Representatives, in each case relating made available to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, Parent and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to engage in or otherwise participate in discussions or negotiations with the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any person making such Takeover Proposal and each material modification theretoits Representatives regarding such Takeover Proposal (including, as a part thereof, making counterproposals). “Acceptable Confidentiality Agreement” means any customary confidentiality agreement that contains provisions that are no less favorable to the Company than those applicable to Parent that are contained in the Confidentiality Agreement (including standstill restrictions), (vi) withhold or fail to include provided that such confidentiality agreement shall not prohibit compliance by the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of with any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable Law, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law5.3.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e).
(g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writ
Appears in 2 contracts
Sources: Merger Agreement (Alcoa Inc.), Merger Agreement (Rti International Metals Inc)
No Solicitation. (a) Until the earlier Each of the Effective Time Parent and the valid termination of this Agreement pursuant to Section 8.01, the Company shall and their respective Subsidiaries will not, and shall Parent and the Company will direct and use their respective best efforts to cause its Subsidiaries and its their and their Subsidiaries' respective Representatives officers, directors, employees, investment bankers, consultants, attorneys, accountants, agents and other representatives not to, directly or indirectly, (i) take any action to solicit, initiate, knowingly encourage or facilitate or knowingly encourage the submission or announcement making of any inquiriesAcquisition Proposal (including without limitation by amending, proposals or offers that constitute granting any waiver under, the Parent Rights Agreement or would reasonably be expected to lead to any Takeover Proposal, (ii) provide any non-public information concerning the Company Rights Agreement, as applicable) or its Subsidiaries to any Person or group in connection with any Takeover Proposal, or engage in any discussions or negotiations inquiry with respect to any Takeover Proposal, (iii) approve, support, adopt, endorse thereto or recommend any Takeover Proposal, (iv) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve or agree to do any of the foregoing. The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with any Person or groups that may be ongoing with respect to any Takeover Proposal or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company or any of its Subsidiaries or any of its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received a bona fide, written Takeover Proposal from any Person or group that did not result from a breach of this Section 6.02, and (ii) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or could reasonably be expected to result in a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, (A) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group making such Takeover Proposal; provided, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including or disclose any material changes nonpublic information or afford access to the terms of properties, books or records to, any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its SubsidiariesPerson that has made, or its or their respective Representativesto such party's knowledge, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter intois considering making, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable Law, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law.
(f) . Nothing contained in this Agreement shall prohibit prevent the Company Board of Directors of Parent or the Company Board from taking and disclosing to the Company’s stockholders a position complying with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated Rule 14e-2 under the Exchange Act with regard to an Acquisition Proposal; provided that the Board of Directors of such party shall not recommend that the stockholders of such party tender their shares in connection with a tender offer or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e).
(g) Notwithstanding anything exchange offer except to the contrary contained in this Section 6.02 or elsewhere in this Agreementextent that, the Company after receiving a Superior Proposal, such Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time Directors of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board party determines in its good faithfaith judgment, after consultation with its financial advisor and receiving the advice of outside legal counsel, that, in light of such Intervening EventSuperior Proposal, the failure to make an Adverse Recommendation Change such a recommendation would be reasonably likely to be inconsistent with fulfilling the exercise fiduciary duties of the Board of Directors to such party's stockholders under applicable law and such party shall have complied with the procedure set forth in Section 5.2 or 6.4, to the extent applicable. Notwithstanding anything to the contrary in this Agreement, prior to the date of approval of this Agreement and the Merger by the stockholders of Parent or the Company, as applicable, Parent or the Company may (A) furnish information and access to a third party, but only in response to a request for information or access, to any Person making an Acquisition Proposal to the board of directors of Parent or the Company, as applicable, after the date hereof which was not knowingly encouraged, solicited or initiated by Parent or the Company, as applicable, or any of its fiduciary duties affiliates or any director, employee, representative or agent of Parent or the Company, as applicable, or any of its respective Subsidiaries (including, without limitation, any investment banker, attorney or accountant retained by Parent or the Company or any of its Subsidiaries) on or after the date hereof and (B) may participate in discussions and negotiate with such Person concerning any such Acquisition Proposal, if and only if, in any such case set forth in clause A or B of this paragraph, (i) the Board of Directors of Parent or Company, as applicable, concludes in good faith, after receipt of the advice of a financial advisor of nationally recognized reputation and outside legal counsel, that such Acquisition Proposal is reasonably likely to result in a Superior Proposal with respect to Parent or the Company, as applicable, (ii) the Company or Parent, as applicable, complies with all of its obligations under applicable Law; this Agreement, and (viii) the board of directors of Parent or the Company, as applicable, receives from the Person making such an Acquisition Proposal an executed confidentiality agreement the material terms of which are (without regard to the terms of such Acquisition Proposal) in all material respects (x) no Adverse Recommendation Change has been made for three less favorable to the Company or Parent, as applicable, and (3y) Business Days no less restrictive to the Person making such Acquisition Proposal than those contained in the Confidentiality Agreement.
(b) Any party receiving an Acquisition Proposal will (A) promptly (and in no event later than 48 hours after receipt of any Acquisition Proposal) notify (which notice shall be provided orally and in writing and shall identify the Person making such Acquisition Proposal and set forth the material terms thereof) the other party to this Agreement after receipt of any Acquisition Proposal, any indication of which such party has knowledge that any Person is considering making an Acquisition Proposal, or any request for nonpublic information relating to such party or any Subsidiary of such party or for access to the properties, books or records of such party or any Subsidiary of such party by Acquiror any Person that has made, or to such party's knowledge may be considering making, an Acquisition Proposal, and (B) will keep the other party to this Agreement informed of the status and material terms of (including all changes to the status or material terms of) any such Acquisition Proposal or request. Each of Parent and the Company (x) shall, and shall cause their respective Subsidiaries to, immediately cease and cause to be terminated and shall use reasonable best efforts to cause its and their officers, directors, employees, investment bankers, consultants, attorneys, accountants, agents and other representatives to, immediately cease and cause to be terminated, all discussions and negotiations, if any, that have taken place prior to the date hereof with any Persons with respect to any Acquisition Proposal and (y) shall promptly request each Person, if any, that has executed a writconfidentiality agreement within the 9 months prior to the date hereof in connection with its consideration of any Acquisition Proposal to return or destroy all confidential information heretofore furnished to such Person by or on behalf of it or any of its Subsidiaries.
Appears in 2 contracts
Sources: Merger Agreement (Texaco Inc), Merger Agreement (Chevron Corp)
No Solicitation. (a) Until the earlier of the Effective Time and the valid termination Subject to Section 9 of this Agreement pursuant to Section 8.01Agreement, the Company shall not, from and shall cause its Subsidiaries and its and their respective Representatives not to, directly or indirectly, (i) solicit, initiate, knowingly facilitate or knowingly encourage the submission or announcement of any inquiries, proposals or offers that constitute or would reasonably be expected to lead to any Takeover Proposal, (ii) provide any non-public information concerning the Company or its Subsidiaries to any Person or group in connection with any Takeover Proposal, or engage in any discussions or negotiations with respect to any Takeover Proposal, (iii) approve, support, adopt, endorse or recommend any Takeover Proposal, (iv) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve or agree to do any of the foregoing. The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with any Person or groups that may be ongoing with respect to any Takeover Proposal or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed until the Expiration Date, the Shareholder, in his or her capacity as a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal shareholder of Company, shall not, nor shall such Shareholder authorize any advisor or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company representative of such Shareholder or any of its Subsidiaries his or any of its and their respective businesses, operations or affairs heretofore furnished by the Company her or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives affiliates, other than Company in accordance with the terms of the Merger Agreement, to (and, to the extent applicable to the Shareholder, such confidentiality agreement. None Shareholder shall use reasonable best efforts to cause each of his or her advisors or representatives or affiliates, other than Company in accordance with the terms of the Merger Agreement, not to) (a) solicit, initiate or knowingly encourage any inquiry with respect to a Company Acquisition Proposal, (b) participate or its Subsidiaries shall engage in any negotiations with any person regarding, or furnish any nonpublic information relating to, a Company Acquisition Proposal, (c) engage or participate in any discussions with any person regarding a Company Acquisition Proposal, (d) enter into any confidentiality agreement, agreement subsequent in principle or letter of intent with respect to any Company Acquisition Proposal, (e) solicit proxies or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the date hereof which prohibits Exchange Act) with respect to any Company Acquisition Proposal (other than the Company Merger Agreement) or otherwise encourage or assist any party in taking or planning any action that would compete with, restrain or otherwise serve to interfere with or inhibit the timely consummation of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to Merger in accordance with the contrary contained in this terms of the Merger Agreement, the (f) initiate a shareholders’ vote or action by consent of Company’s shareholders with respect to any Company and its Representatives may in any event inform a Person Acquisition Proposal, or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date (g) except by reason of this Agreement, terminate and be become a member of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision a “group” (as such term is used in Section 13(d) of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received a bona fide, written Takeover Proposal from any Person or group that did not result from a breach of this Section 6.02, and (ii) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or could reasonably be expected to result in a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, (A) furnish information (including non-public informationExchange Act) with respect to the any voting securities of Company and its Subsidiaries to the Person or group making such Takeover Proposal; provided, that (x) the takes any action in support of any Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Acquisition Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable Law, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e).
(g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writ
Appears in 2 contracts
Sources: Voting Agreement (Eastern Bankshares, Inc.), Voting Agreement (Eastern Bankshares, Inc.)
No Solicitation. (a) Until Hereafter until the earlier Expiration Date, to the extent that the Company is prohibited from taking such action under Section 5.03 of the Effective Time and Merger Agreement the valid termination of this Agreement pursuant to Section 8.01, the Company Stockholder shall not, and nor shall cause such Stockholder authorize or permit any general partner, officer, director, advisor or representative of such Stockholder (collectively, “Representatives”) or any Controlled Affiliates of such Stockholder to, in its Subsidiaries and its and or their respective Representatives not tocapacity as a stockholder, directly or indirectly, (i) solicit, initiate, knowingly encourage or take any other action to knowingly facilitate any inquiry, discussion, offer or knowingly encourage the submission or announcement of any inquiriesrequest that constitutes, proposals or offers that constitute or would reasonably be expected to lead to any to, a Company Takeover Proposal, (ii) provide enter into any non-public information concerning the Company agreement, letter of intent, memorandum of understanding or its Subsidiaries to any Person or group in connection with any Takeover Proposal, or engage in any discussions or negotiations other similar instrument with respect to any Company Takeover Proposal, (iii) approveenter into, supportcontinue, adoptconduct, endorse engage or recommend otherwise participate in any discussions or negotiations regarding, or furnish to any Person any non-public information with respect to, or for the purpose of encouraging or facilitating, any Company Takeover Proposal, (iv) take solicit proxies or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act) with respect to a Company Takeover Proposal (other than the Merger Agreement or a Superior Company Proposal) or otherwise knowingly encourage or assist any party in taking or planning any action that would reasonably be expected to make compete with, restrain or otherwise serve to interfere with or inhibit the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 timely consummation of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover ProposalMerger in accordance with the terms of the Merger Agreement, (v) otherwise cooperate initiate a stockholders’ vote or action by consent of the Company’s stockholders with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiationsrespect to a Company Takeover Proposal, or (vi) resolve or agree to do any except by reason of this Agreement, become a member of a “group” (as such term is used in Section 13(d) of the foregoingExchange Act) with respect to any voting securities of the Company that takes any action in support of a Company Takeover Proposal (other than the Merger Agreement or a Superior Company Proposal). The Company Stockholder shall, and shall cause instruct its Subsidiaries Representatives and its and their respective Representatives Affiliates that the Stockholder can control to, immediately cease and cause to be terminated any solicitationall existing discussions and negotiations, encouragementif any, discussion or negotiation with any Person or groups that may be ongoing conducted heretofore with respect to any Takeover Proposal or potential Company Takeover Proposal. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company or any of its Subsidiaries or any of its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives Nothing in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event inform a Person 4 or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received a bona fide, written Takeover Proposal from any Person or group that did not result from a breach of this Section 6.02, and (ii) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or could reasonably be expected to result in a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, (A) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group making such Takeover Proposal; provided, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable Law, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law.
(f) Nothing contained otherwise in this Agreement shall prohibit the Company in any way impede or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of prevent any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e).
(g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as Representative of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to Stockholder that is a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any member of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions Board of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting Directors of the Company Board at which it will consider from exercising and determine whether such Intervening Event may require performing his duties as a director of the Company to make an Adverse Recommendation Change, in accordance with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writlaw.
Appears in 2 contracts
Sources: Voting Agreement (Independence Realty Trust, Inc), Voting Agreement (Independence Realty Trust, Inc)
No Solicitation. (a) Until Prior to the earlier Expiration Date, each Stockholder (in its or his capacity as a stockholder of the Effective Time and the valid termination of this Agreement pursuant to Section 8.01, the Company Company) shall not, shall cause each of its or his controlled Affiliates not to, and shall use reasonable best efforts to cause its Subsidiaries and its and their respective Representatives each person that controls such Stockholder (each, a “Representative”) not to, directly or indirectly, (i) solicit, initiate, knowingly facilitate encourage or knowingly encourage facilitate any inquiries regarding, or the submission or announcement making of any inquiriesproposal or offer that constitutes, proposals or offers that constitute or would could reasonably be expected to lead to any to, a Company Takeover Proposal, (ii) provide engage in, continue or otherwise participate in any non-public information concerning the Company discussions or its Subsidiaries negotiations that could reasonably be expected to lead to, or furnish to any Person or group other person any information in connection with or for the purpose of encouraging or facilitating, a Company Takeover Proposal (other than, solely in response to an unsolicited inquiry, to refer the inquiring person to this Section 2.1 and/or Section 5.3 of the Merger Agreement and to limit its or his conversation or other communication exclusively to such referral), or (iii) approve, recommend or enter into, or propose to approve, recommend or enter into, any letter of intent or similar document, agreement, commitment, or agreement in principle (whether written or oral, binding or nonbinding) with respect to a Company Takeover Proposal, ; provided that nothing herein shall prohibit any Stockholder or engage any of its or his controlled Affiliates or Representatives from participating in any discussions or negotiations with respect to any a possible stockholders’ consent or voting agreement in connection with a Company Takeover Proposal, Proposal in the event that the Company becomes permitted to taken the actions set forth in clause (iiiA) approve, support, adopt, endorse or recommend any Takeover Proposal, clause (ivB) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 5.3(c) of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve or agree to do any of the foregoing. The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with any Person or groups that may be ongoing Merger Agreement with respect to any Takeover Proposal or potential such Company Takeover Proposal. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company or any of its Subsidiaries or any of its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received a bona fide, written Takeover Proposal from any Person or group that did not result from a breach of this Section 6.02, and (ii) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or could reasonably be expected to result in a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, (A) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group making such Takeover Proposal; provided, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date For purposes of this Agreement, provide the material terms and conditions term “Affiliate” shall have the meaning assigned to it in the Merger Agreement, but shall not include any entity whose equity securities are registered under the Exchange Act (or are publicly traded in a foreign jurisdiction), solely by reason of the fact that one or more nominees or representatives of any such inquiry, proposal, offer or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details Stockholders serves as a member of discussions with respect theretoits board of directors or similar governing body, including any material changes to unless the terms of any Stockholders or their Affiliates otherwise control such inquiry, proposal, offer or requestentity. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date For purposes of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable Law, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror an Affiliate of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e).
(g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writStockholders.
Appears in 2 contracts
Sources: Voting and Support Agreement (Dollar Tree Inc), Voting and Support Agreement (Levine Howard R)
No Solicitation. (a) Until The Company shall not, and shall ---------------- not authorize or permit any officer, director or employee of, or any investment banker, attorney or other advisor or representative (collectively, "Representatives") of, the earlier of Company to, (i) directly or indirectly solicit, ---------------- initiate or encourage the Effective Time and the valid submission of, any Company Takeover Proposal (as defined in Section 5.02(e)), (ii) except in connection with a termination of this Agreement pursuant to Section 8.018.01(e), the enter into any agreement with respect to any Company shall notTakeover Proposal or (iii) directly or indirectly participate in any discussions or negotiations regarding, and shall cause its Subsidiaries and its and their respective Representatives not or furnish to any person any information with respect to, directly or indirectly, (i) solicit, initiate, knowingly take any other action designed to facilitate any inquiries or knowingly encourage the submission or announcement making of any inquiriesproposal that constitutes, proposals or offers that constitute or would may reasonably be expected to lead to to, any Company Takeover Proposal; provided, (ii) provide any non-public information concerning -------- however, that prior to the acceptance for payment of shares of Company Common ------- Stock pursuant to the Offer the Company or its Subsidiaries to any Person or group in connection with any Takeover Proposalmay, or engage in any discussions or negotiations with respect to any Takeover Proposal, (iii) approve, support, adopt, endorse or recommend any Takeover Proposal, (iv) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve or agree to do any of the foregoing. The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with any Person or groups that may be ongoing with respect to any Takeover Proposal or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company or any of its Subsidiaries or any of its and their respective businesses, operations or affairs heretofore furnished extent required by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None fiduciary obligations of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shallBoard, as of the date of this Agreementdetermined in good faith by it after consultation with outside counsel, terminate and be of no further force and effect solely in response to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received a bona fide, written Company Takeover Proposal from any Person made or group received after the date of this Agreement that was not solicited by the Company in breach or deemed breach of this Section 5.02(a) and that did not otherwise result from a breach or deemed breach of this Section 6.02, 5.02(a) and (ii) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or could reasonably be expected to result in a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, (A) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group making such Takeover Proposal; provided, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Board determines in good faith is reasonably likely to result in a Superior Company Proposal (after consultation as defined in Section 5.02(e)) within a reasonable period of time, and subject to compliance with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable LawSection 5.02(c), (x) furnish information with respect to the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that to the applicable person making such Company Takeover Proposal constitutes and its Representatives pursuant to a Superior Proposal customary confidentiality agreement not less restrictive of the other party than the Confidentiality Agreement (as defined in Section 6.02) and that it intends to accept or recommend such Superior Proposal, (y) participate in discussions or negotiations (including solicitation of a revised Company Takeover Proposal) with such person and its Representatives regarding any Company Takeover Proposal. Without limiting the Company shall have provided prior written notice to Acquirorforegoing, at least four (4) Business Days prior to effecting it is agreed that any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy violation of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that restrictions set forth in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e).
(g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writpreceding
Appears in 2 contracts
Sources: Merger Agreement (Diatide Inc), Merger Agreement (Schering Berlin Inc)
No Solicitation. (a) Until Except to the earlier of extent otherwise permitted by this Section 5.3, during the Effective Time and the valid termination of this Agreement pursuant to Section 8.01Pre-Closing Period, the Company shall not, and shall cause each of its Subsidiaries not to, and shall direct and shall use reasonable efforts to cause its and their respective Representatives officers, directors and employees and their respective agents, financial advisors, investment bankers, attorneys and accountants (such officers, directors, employees, agents, financial advisors, investment bankers, attorneys and accountants, collectively, “Representatives”) not to, directly or indirectlyindirectly through intermediaries, (i) solicit, initiate, knowingly facilitate encourage or knowingly encourage facilitate any inquiries regarding, or the submission or announcement making of any inquiriesproposal or offer that constitutes, proposals or offers that constitute or would could reasonably be expected to lead to any to, a Company Takeover Proposal, (ii) provide any non-public information concerning the Company engage in, continue or its Subsidiaries to any Person or group in connection with any Takeover Proposal, or engage otherwise participate in any discussions or negotiations with respect regarding, or furnish to any other person any information in connection with or for the purpose of soliciting, initiating, knowingly encouraging or knowingly facilitating, a Company Takeover ProposalProposal (other than, solely in response to an unsolicited inquiry, to refer the inquiring person to this Section 5.3 and to limit its conversation or other communication exclusively to such referral), or (iii) approve, supportrecommend or enter into, adoptor propose to approve, endorse recommend or recommend enter into, any Takeover Proposalletter of intent, (iv) take any action to make the provisions memorandum of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation understanding, agreement (including any transaction underan acquisition agreement, merger agreement or joint venture agreement) or similar document, agreement, commitment or agreement in principle (whether written, oral, binding or non-binding) with respect to a third party becoming Company Takeover Proposal (other than an Acceptable Confidentiality Agreement entered into in accordance with Section 5.3(c)) (an “interested stockholder” under, Section 203 of the Corporation LawAlternative Acquisition Agreement”).
(b) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve or agree to do any of the foregoing. The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion promptly request that each Person that has executed a confidentiality or negotiation non-disclosure agreement in connection with any Person actual or groups that may be ongoing with respect to any potential Company Takeover Proposal that remains in effect as of the date of this Agreement to return or potential Takeover Proposaldestroy all confidential information in the possession of such person or its Representatives. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed a confidentiality not, and shall cause its Subsidiaries not to, release any third party from, or waive, amend or modify any provision of, or grant permission under or fail to enforce, any standstill provision in any agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to which the Company or any of its Subsidiaries or any of its and their respective businessesis a party; provided that, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding notwithstanding anything to the contrary contained in this Agreement, if the Company and Board of Directors determines in good faith, after consultation with its Representatives outside legal counsel that the failure to take such action would be inconsistent with the directors’ fiduciary duties under applicable Law, the Company may in waive any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all such standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect provision solely to the extent necessary to allow Acquiror permit a third party to effect make, on a confidential basis to the transactions contemplated or Company Board of Directors, a Company Takeover Proposal, conditioned upon such third party agreeing that the Company shall not be prohibited from providing any information to Parent (including regarding any such Company Takeover Proposal) in accordance with, and otherwise complying with, this Section 5.3. Except to the extent otherwise permitted by this Agreement; provided that no provision the proviso in the foregoing sentence, the Company shall, and shall cause its Subsidiaries to, enforce the confidentiality and standstill provisions of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreementsuch agreement.
(bc) Notwithstanding anything to the contrary contained in this Agreement, if if, at any time after the date of this Agreement and prior to the Acceptance Time, (i) earlier of the time that the Company has received Stockholder Approval is obtained or this Agreement is terminated in accordance with Section 7.1 (the “Cut-off Time”), the Company or any of its Representatives receives a bona fide, unsolicited written Company Takeover Proposal from any Person or group person that did not result from a knowing or intentional breach of this Section 6.02, and (ii) 5.3 by the Company or any of its Subsidiaries or their respective Representatives that the Company Board of Directors determines in good faith, after consultation with its independent financial advisor and outside legal counsel, that such Takeover constitutes a Company Superior Proposal constitutes or could would reasonably be expected to result in a Company Superior ProposalProposal and the Company Board of Directors determines in good faith, after consultation with its outside legal counsel, that the failure to take such action would be inconsistent with the directors’ fiduciary duties under applicable Law, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, and its Representatives may (Ai) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person person who has made such Company Takeover Proposal if the Company receives from such person an executed confidentiality agreement containing terms that are not less restrictive to the other party than those contained in the Confidentiality Agreement (it being understood and agreed that such confidentiality agreement need not contain a standstill provision or group otherwise prohibit the making such or amendment of a Company Takeover Proposal) (such confidentiality agreement, an “Acceptable Confidentiality Agreement”); provided, provided that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, that prior to or concurrently with the Company taking delivery to such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice person make available to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, in Parent any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company or any of its Subsidiaries from that is provided or made available to such person or its Representatives that has not been previously provided to Parent and (ii) engage in or otherwise participate in discussions or negotiations with the person making such Company Takeover Proposal and its Representatives regarding such Company Takeover Proposal. The Company shall promptly (and in any Person event within forty-eight (48) hours) notify Parent and Merger Sub if the Company commences furnishing non-public information and/or commences discussions or group who has made negotiations as provided in this Section 5.3(c).
(d) The Company shall promptly (and in no event later than forty-eight (48) hours after receipt) notify Parent in writing in the event that the Company or would reasonably be expected any of its Representatives receives a Company Takeover Proposal or a request for information relating to make the Company or any of its Subsidiaries that contemplates a Company Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to including the existing terms of confidentiality obligations identity of the person making the Company as in place as of the date of this Agreement, provide Takeover Proposal and the material terms and conditions of any such inquiry, proposal, offer or request and the nature thereof (including an unredacted copy of such requestCompany Takeover Proposal or, and thereafter where such Company Takeover Proposal is not in writing, a description of the terms thereof). The Company shall keep Acquiror Parent reasonably informed informed, on a prompt and timely basis of reasonably current basis, as to the status and material details of discussions with respect thereto, or negotiations relating to such Company Takeover Proposal (including any material changes by promptly (and in no event later than forty-eight (48) hours after receipt) providing to the terms Parent copies of any correspondence, proposals, indications of interest, and/or draft agreements relating to such inquiry, proposal, offer or requestCompany Takeover Proposal). Without limiting the generality of the foregoing, The Company agrees that it and subject its Subsidiaries will not enter into any agreement with any person subsequent to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, Agreement that prohibits the Company shall promptly (and, from providing any information to Parent in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiariesaccordance with, or its or their respective Representativesotherwise complying with, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in this Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”)5.3.
(e) Notwithstanding anything to the contrary set forth in this Agreement, if, at any time prior to the Acceptance Cut-off Time, the Company Board may effect an Adverse Recommendation Change in response to or any of its Representatives receives a Superior bona fide written Company Takeover Proposal if and only if: (v) the Company has complied with the other provisions from any person that did not result from a knowing or intentional breach of this Section 6.02, (w) 5.3 by the Company or any of its Subsidiaries or their respective Representatives that the Company Board of Directors determines in good faith (faith, after consultation with its independent financial advisor and outside legal counsel, constitutes a Company Superior Proposal and the Company Board of Directors determines in good faith, after consultation with its outside legal counsel) , that the failure to take terminate this Agreement in order to enter into a definitive Alternative Acquisition Agreement with respect to such action Company Superior Proposal would be inconsistent with the exercise of its directors’ fiduciary duties under applicable Law, (x) then the Company Board determines of Directors may terminate this Agreement in good faith accordance with Section 7.1(h) but only if: (after consultation with its outside legal counsel and financial advisorsi) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends prior to accept or recommend taking any such Superior Proposalaction, (y) the Company shall have provided prior written notice to Acquiror, at least provides Parent with no fewer than four (4) Business Days Days’ prior to effecting any Adverse Recommendation Change, written notice of its intent intention to take such action, specifying the reasons therefor and including attaching a copy of the proposed acquisition agreement and any other documents related to such Company Superior Proposal or any proposed Alternative Acquisition Agreement and a copy of any related financing commitments in the Company’s possession (or, where no such copy is available, a “Notice description of Intended Recommendation Change”such Company Superior Proposal or proposed Alternative Acquisition Agreement), and during the four (z4) if requested in writing by AcquirorBusiness Day period, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives toto negotiate, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith with Parent during such notice period, to the four extent Parent wishes to negotiate, concerning any revisions to the terms of this Agreement proposed by Parent and either (4A) Business Day period after such Notice of Intended Recommendation Change Parent shall not have irrevocably proposed revisions to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; providedor (B) if Parent within such period shall have proposed irrevocable revisions to the terms and conditions of this Agreement, furtherthe Company Board of Directors determines in good faith, after consultation with its independent financial advisor and outside legal counsel, that the Company Board shall have considered in good faith any amendments Takeover Proposal remains a Company Superior Proposal with respect to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (Parent’s revised proposal and, after consultation with its outside legal counsel and financial advisors) counsel, that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) and accept such Company Superior Proposal would be inconsistent with the exercise of its directors’ fiduciary duties under applicable Law; provided, that, in the event of any change to any of the financial terms (including the form, amount and timing of payment of consideration or any financing contingencies) of such Company Takeover Proposal, the Company shall, in each case, have delivered to Parent an additional notice consistent with the notice described in clause (i) above and the four (4) Business Days’ notice period referred to in clause (i) above shall be extended for an additional two (2) Business Days after notification of such change to Parent to the extent Parent wishes to negotiate; (ii) prior to or substantially simultaneously with such termination the Company shall have entered into a definitive Alternative Acquisition Agreement with respect to such Company Superior Proposal; and (iii) immediately prior to or concurrently with such termination the Company shall have paid Parent the Termination Fee pursuant to Section 7.3(a)(iv).
(f) Nothing contained in this Agreement The Company Board of Directors shall prohibit not (i) (A) fail to include the Company or Recommendation in the Company Board from taking and disclosing Proxy Statement/Prospectus when disseminated to the Company’s stockholders stockholders, (B) change, qualify, withhold, withdraw or modify (or authorize or publicly propose to change, qualify, withhold, withdraw or modify), in any such case in a position manner adverse to Parent, the Company Recommendation, (C) publicly make any recommendation in connection with respect to a tender offer by or exchange offer other than a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act recommendation against such offer or from issuing a temporary “stop, look and listen” communication, as defined in communication by the Company Board of Directors of the type contemplated by Rule 14d-9(f) promulgated under the Exchange Act and Act, (D) adopt, approve or recommend, or publicly propose to adopt, approve or recommend to stockholders of the Company a Company Takeover Proposal, or (E) other than with respect to a tender offer or exchange offer covered by Section 5.3(e)(i)(C), if a Company Takeover Proposal shall have been publicly announced or disclosed, fail to recommend against such Company Takeover Proposal or fail to reaffirm the Company Recommendation, in accordance therewitheither case on or prior to the later of (x) the second (2nd) Business Day prior to the date of the Company Stockholder Meeting (or any adjournment or postponement thereof), pending disclosure or (y) the tenth (10th) Business Day after the Company Takeover Proposal shall have been publicly announced or disclosed, but in any event at least one (1) Business Day prior to the Company Stockholder Meeting, as applicable) (any action described in this clause (i) being referred to as a “Company Adverse Recommendation Change”), or (ii) authorize, cause or permit the Company or any of its position thereunder, and the issuance of Subsidiaries to enter into any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Alternative Acquisition Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e).
(g) Notwithstanding anything to the contrary contained in this Agreement, prior to the Cut-off Time, but not after, if (x) an Intervening Event shall have occurred or (y) a bona fide written Company Takeover Proposal is received from any person that did not result from a knowing or intentional breach of this Section 6.02 or elsewhere 5.3 that the Company Board of Directors has determined in this Agreementgood faith, after consultation with its independent financial adviser and outside legal counsel, constitutes a Company Superior Proposal and, in each case of (x) and (y), the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board Directors determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the that failure to make an a Company Adverse Recommendation Change would be inconsistent with the exercise of its directors’ fiduciary duties under applicable Law, then the Company Board of Directors may make a Company Adverse Recommendation Change; provided, however, that, prior to taking such action, (vi) no the Company has given Parent at least four (4) Business Days’ prior written notice of its intention to take such action, including, (A) if the Company Adverse Recommendation Change is due to an Intervening Event, a description of such Intervening Event and the reasons for the proposed Company Adverse Recommendation Change, and (B) if the Company Adverse Recommendation Change is in connection with a purported Company Superior Proposal, the terms and conditions of, and the identity of the person making, any such Company Superior Proposal and a copy of the Company Superior Proposal or any proposed Alternative Acquisition Agreement and a copy of any related financing commitments in the Company’s possession (or, in each case, if not provided in writing to the Company, a written summary of the terms thereof), (ii) the Company has been made negotiated, and has caused its Representatives to negotiate, in good faith with Parent during such notice period, to the extent Parent wishes to negotiate, concerning any revisions to the terms of this Agreement proposed by Parent, and (iii) following the end of such notice period, the Company Board of Directors shall have determined, after consultation with its independent financial advisor and outside legal counsel, and giving due consideration to the revisions to the terms of this Agreement to which Parent has irrevocably committed in writing, that (A) if such proposed Company Adverse Recommendation Change is in response to an Intervening Event, the failure to make a Company Adverse Recommendation Change would be inconsistent with the directors’ fiduciary duties under applicable Law and (B) if such proposed Company Adverse Recommendation Change is in response to a purported Company Superior Proposal, the Company Superior Proposal would nevertheless continue to constitute a Company Superior Proposal (assuming the revisions committed to by Parent were to be given effect) and that the failure to make a Company Adverse Recommendation Change would be inconsistent with the directors’ fiduciary duties under applicable Law, and (iv) if such proposed Company Adverse Recommendation Change is in response to a purported Company Superior Proposal, in the event of any change to any of the financial terms (including the form, amount and timing of payment of consideration) of such Company Superior Proposal, the Company shall, in each case, have delivered to Parent an additional notice consistent with that described in clause (i) above of this proviso and the four (4) Business Days’ notice period referred to in clause (i) above of this proviso shall be extended for three an additional two (32) Business Days after receipt by Acquiror notification of such change to Parent.
(h) Nothing contained in this Section 5.3 shall prohibit the Company or the Company Board of Directors from complying with its disclosure obligations under applicable Law with regard to a writCompany Takeover Proposal, including (i) taking and disclo
Appears in 2 contracts
Sources: Merger Agreement (Endologix Inc /De/), Merger Agreement (TriVascular Technologies, Inc.)
No Solicitation. (a) Until the earlier of the Effective Time and the valid termination of Except as otherwise provided in this Agreement pursuant to Section 8.016.5, the Company GFI shall not, and nor shall cause it authorize or permit any of the GFI Subsidiaries or any of its Subsidiaries and its and their Subsidiaries' respective Representatives not to, directly or indirectly, indirectly (i) solicit, initiate, solicit or knowingly facilitate or knowingly encourage any inquiry or the submission or announcement making of any inquiries, proposals or offers proposal that constitute or would reasonably be expected to lead to any constitutes a Takeover Proposal, (ii) provide adopt, or publicly propose to adopt, or allow GFI or any GFI Subsidiary to execute or enter into, any binding or non-public information concerning the Company binding letter of intent, agreement in principle, memorandum of understanding, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or its Subsidiaries to any Person other agreement, commitment, arrangement, undertaking, or group understanding in connection with or relating to any Takeover ProposalProposal (other than confidentiality agreements permitted under Section 6.5(b)(i)) or (iii) other than with CME, Merger Sub 1, Merger Sub 2 or engage their respective Representatives or other than informing third parties of the existence of this Section 6.5, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person any information or data in connection with respect to or relating to, any Takeover Proposal, (iii) approve, support, adopt, endorse or recommend any Takeover Proposal, (iv) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve or agree to do any of the foregoing. The Company GFI shall, and GFI shall cause its the GFI Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitationexisting activities, encouragement, discussion discussions or negotiation negotiations with any Person Persons or groups that may be ongoing their Representatives conducted prior to the date of this Agreement with respect to any Takeover Proposal and shall request the prompt return or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company or destruction of any of its Subsidiaries or any of its and their respective businesses, operations or affairs heretofore confidential information previously furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives Persons in connection therewith in accordance with the terms of such any applicable confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreementforegoing, if at any time prior to receipt of the Acceptance TimeGFI Stockholder Approval, GFI and the Board of Directors of GFI (iupon the recommendation of the Special Committee) the Company has received may (directly or through their Representatives), in response to a bona fide, fide written Takeover Proposal from any Person or group that was first received after the date hereof and did not otherwise result from a breach of this Section 6.026.5, and subject to compliance with Section 6.5(d) (ii) the Company Board determines Change in good faith, after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or could reasonably be expected to result in a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, Recommendation):
(Ai) furnish information (including non-public information) with respect to GFI and the Company and its GFI Subsidiaries to the Person or group making such Takeover Proposal; provided, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making such Takeover Proposal and its Representatives pursuant to and in accordance with a confidentiality agreement containing provisions no less favorable in the aggregate to GFI than those contained in the Confidentiality Agreement then in effect; provided that such confidentiality agreement (A) shall be provided to CME promptly after its execution, (B) shall not contain any provisions that would prevent GFI from complying with its obligation to provide the required disclosure to CME pursuant to this Section 6.5 (No Solicitation) and (C) need not contain a standstill or similar provision that prohibits such Person from making a Takeover Proposal; provided, further, that a copy of all such information provided to such Person has previously been provided to CME or its Representatives or is provided to CME substantially concurrently with the time it is provided to such Person; and
(ii) participate in discussions or negotiations with such Person or its Representatives regarding such Takeover Proposal; provided, howeverin each case, that prior to or concurrently with the Company taking such actions as described in clauses Board of Directors of GFI (A) and/or (B) above, upon the Company shall provide written notice to Acquiror of such determination recommendation of the Company Board as provided for Special Committee) determines in clause good faith (iiafter consultation with its outside legal counsel and its independent financial advisor) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making that such Takeover Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes Proposal is or could reasonably be expected to lead to a Superior Proposal.
(c) As promptly as reasonably practicable after the receipt, directly or indirectly, by GFI of any Takeover Proposal or any inquiry with respect to, or that could reasonably be expected to lead to, any Takeover Proposal, and in any case within 24 hours after the receipt thereof, GFI shall provide oral and written notice to CME of (i) such Takeover Proposal or any initial request for non-public information concerning inquiry, (ii) the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations identity of the Company as in place as of the date of this Agreement, provide Person making any such Takeover Proposal or inquiry and (iii) the material terms and conditions of any such inquiryTakeover Proposal or inquiry (including a copy of any such written Takeover Proposal and any amendments or modifications thereto). Commencing upon the provision of any notice referred to above and continuing until such Takeover Proposal is withdrawn or the Board of Directors of GFI (upon the recommendation of the Special Committee) has provided written notice to CME that it is prepared to effect a Change in Recommendation pursuant to Section 6.5(d) (Change in Recommendation), proposal, offer or request and the nature of such request(A) once, and thereafter the Company shall keep Acquiror not more than once, each day at mutually reasonably informed on agreeable times, GFI (or its outside legal counsel) shall, in person or by telephone, provide CME (or its outside legal counsel) a prompt and timely basis summary of the status of such Takeover Proposal and the material details resolved or unresolved issues (including the stated positions of discussions with respect the parties to such negotiations on such issues) related thereto, including any material changes amendments or proposed amendments as to the price and other material terms of any such inquiryTakeover Proposal and (B) GFI shall, proposalpromptly upon receipt or delivery thereof, offer provide CME (or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24its outside legal counsel) hours) provide Acquiror with unredacted copies of all written inquiriesdrafts and final versions (and any comments thereon) of agreements (including schedules and exhibits thereto) relating to such Takeover Proposal exchanged between GFI or any of its Representatives, requests, proposals or offers, including proposed agreementson the one hand, and oral summaries the person making such Takeover Proposal or any of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that on the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposalother hand.
(d) Neither the Company Board of Directors of GFI nor any committee thereof shall (iincluding the Special Committee) withdraw shall, directly or rescind (or modify or qualify indirectly, effect a Change in a manner adverse Recommendation. Notwithstanding the foregoing, at any time prior to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub)receipt of the GFI Stockholder Approval, the Company Board Recommendation or of Directors of GFI (upon the findings or conclusions recommendation of the Company Special Committee) may, in response to a Superior Proposal or an Intervening Event, effect a Change in Recommendation; provided that the Board referred to in Section 4.03(b), of Directors of GFI (ii) approve or recommend upon the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any recommendation of the foregoing actions, Special Committee) determines in good faith (vafter consultation with its outside legal counsel and its independent financial advisor) following that the date any Takeover Proposal (other than any tender or exchange offer relating failure to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given do so would reasonably be likely to be inconsistent with its fiduciary duties to the stockholders of GFI under applicable Law; provided, further, that the Company or received by Board of Directors of GFI may not effect such a Change in Recommendation unless (i) the Company, fail to issue a press release publicly Board of Directors of GFI (A) reaffirming its upon the recommendation of this Agreementthe Special Committee) shall have first provided prior written notice to CME that it is prepared to effect a Change in Recommendation in response to a Superior Proposal or an Intervening Event, which notice shall, in the Offer case of a Superior Proposal, attach the most current version of any written agreement relating to the transaction that constitutes such Superior Proposal, and, in the case of an Intervening Event, attach information specifying such Intervening Event in reasonable detail and any other information related thereto reasonably requested by CME, it being understood and agreed that the Mergerdelivery of such notice shall not, in and of itself, be deemed a Change in Recommendation, and (Bii) rejecting CME does not make, within four Business Days after receipt of such notice a proposal that the Board of Directors of GFI (upon the recommendation of the Special Committee) determines in good faith (after consultation with its outside legal counsel and not recommending its independent financial advisor) would cause the proposal previously constituting a Superior Proposal to no longer constitute a Superior Proposal or obviates the need for a Change in Recommendation as a result of the Intervening Event, as the case may be. GFI agrees that, during the four Business Day period prior to its effecting a Change in Recommendation, GFI and its Representatives shall, if requested by CME, negotiate in good faith with CME and its Representatives (so long as CME and its Representatives are negotiating in good faith) regarding any revisions to the terms of the Transactions proposed by CME intended to cause such Takeover Proposal within five (5) to no longer constitute a Superior Proposal or to obviate the need for a Change in Recommendation as a result of an Intervening Event. Any material amendment to the terms of such Superior Proposal or material change to the facts and circumstances that are the basis for such Intervening Event occurring or arising prior to the making of a Change in Recommendation shall require GFI to provide to CME a new notice and a new negotiation period of two Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement instead of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) four Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”Days).
(e) Notwithstanding anything Nothing contained in this Section 6.5 shall prohibit GFI or the Board of Directors of GFI (upon the recommendation of the Special Committee) from taking and disclosing any position contemplated by Rule 14e-2 promulgated under the Exchange Act or making any statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9 promulgated under the Exchange Act in respect of any Takeover Proposal or making any disclosure to the contrary in this Agreement, at any time prior to stockholders of GFI if the Acceptance Time, Board of Directors of GFI (upon the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (vrecommendation of the Special Committee) the Company has complied with the other provisions of this Section 6.02, (w) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take make such action disclosure would reasonably be likely to be inconsistent with the exercise of its fiduciary duties to the stockholders of GFI under applicable Law, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation neither the Board of Directors of GFI nor any committee thereof (including the Special Committee) shall, except as expressly permitted by Section 6.5(d) (Change may be made unless the Company shall have first complied with its obligations in Section 6.02(eRecommendation), effect a Change in Recommendation.
(gf) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions For purposes of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writ:
Appears in 2 contracts
Sources: Merger Agreement (Jersey Partners Inc.), Merger Agreement (Jersey Partners Inc.)
No Solicitation. (a) Until Subject to Section 6.1(b) hereof, from the earlier of Agreement Date until the Effective Time and Acceptance Time, or, if earlier, the valid termination of this Agreement pursuant to in accordance with Section 8.017.1 hereof, the Company shall not, and the Company shall cause its Subsidiaries and its and their respective Representatives officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents and advisors (collectively, “Representatives”) not to, directly or indirectly, :
(i) solicit, initiate, knowingly facilitate initiate or knowingly encourage (including by way of providing non-public information) the submission or announcement of any inquiries, proposals or offers that constitute or would reasonably be expected to lead to any Takeover result in an Acquisition Proposal, ;
(ii) provide any non-public information concerning the Company or any of its Subsidiaries to any Person or group in connection with any Takeover or in response to an Acquisition Proposal, or ;
(iii) engage in any discussions or negotiations with any Person with respect to any Takeover Acquisition Proposal, ;
(iiiiv) approve, support, adopt, endorse or recommend any Takeover Acquisition Proposal; or
(v) enter into any agreement, (iv) take letter of intent or similar document or any action Contract contemplating or otherwise relating to make any Acquisition Transaction or enter into any agreement, letter of intent or similar document requiring the provisions of Company to exempt any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of from the Corporation Law) inapplicable restrictions contained in any state takeover or similar Laws or otherwise cause such restrictions not to any Person other than Acquiror and its Affiliates apply to such third party or to any transactions constituting or contemplated by a Takeover Acquisition Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve or agree to do any of the foregoing. The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with any Person or groups that may be ongoing with respect to any Takeover Proposal or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company or any of its Subsidiaries or any of its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained in Section 6.1(a) hereof or any other provisions of this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received a bona fide, fide written Takeover Acquisition Proposal from any Person or group (other than an Acquisition Proposal that did not arises as a result from of a breach of this any of the provisions set forth in Section 6.026.1(a) hereof) that is reasonably likely to result in a Superior Proposal, and (ii) the Company Board determines in good faith, after consultation having consulted with its financial advisor and outside legal counsel, that the failure to take such Takeover action would be inconsistent with its fiduciary obligations to the Company Shareholders and other stakeholders of the Company under applicable Law, (iii) prior to furnishing or making available any non-public information to, or entering into discussions or negotiations with such Person, the Company gives Parent written notice of the identity of the Person making the Acquisition Proposal constitutes and of the Company’s intention to furnish or could reasonably be expected make available non-public information to, or enter into discussions or negotiations with, such Person, and the Company receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions and use restrictions) at least as favorable to result in a Superior Proposalthe Company as the provisions of the Confidentiality Agreement, and (iv) simultaneously with furnishing or making available any non- public information to such Person, the Company makes available such non-public information to Parent (to the extent the Company has not previously made available such non-public information to Parent), then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, may (A) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group making such Takeover Proposal; provided, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, Acquisition Proposal and (B) engage in discussions or negotiations with the Person making such Takeover Acquisition Proposal regarding such Takeover Proposal; provided, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Acquisition Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four one (241) hoursBusiness Day) notify Acquiror in writing Parent in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning Subsidiary of the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make of their respective Representatives receives any Takeover Acquisition Proposal, or any initial request for discussions or negotiations related to any Takeover including the identity of the Person making such Acquisition Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, provide the material terms and conditions thereof and, if applicable, shall provide Parent with copies of any written requests, proposals or offers from the Person making such Acquisition Proposal promptly after receipt thereof. The Company shall keep Parent informed with respect to: (i) the status of any such inquiry, proposal, offer or request Acquisition Proposal; and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of (ii) the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposalmaterial modification thereto.
(d) Neither the The Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Mergershall, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and shall cause each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable Law, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms immediately cease and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed cause to be a material amendment), the Company shall notify Acquiror of such material revision in compliance terminated any solicitations or discussions with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e).
(g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board Person ongoing as of the date of this Agreement and does not relate with respect to any Takeover Proposal actual or potential Acquisition Proposal.
(e) The Company agrees not to release or permit the terms release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, non-solicitation, no hire, “standstill” or similar Contract to which the Company is a party or under which the Company has any rights to the extent permitted thereunder, and conditions will use commercially reasonable efforts to cause each such agreement to be enforced (it being understood that any automatic termination of any such provision resulting from the execution and delivery of this Agreement, which event, development Agreement shall not constitute a breach of this Section 6.1(e)). The Company also shall promptly request each Person that has executed a confidentiality agreement with the Company or change its Subsidiaries within the last 18 months in circumstance, connection with its consideration of a possible Acquisition Transaction or any material consequences thereof, becomes known a possible equity investment in the Company to return to the Company Board prior or destroy all confidential information heretofore furnished to the Acceptance Time (any such material event, material development Person by or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any on behalf of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writCompany.
Appears in 2 contracts
Sources: Tender Offer Agreement, Tender Offer Agreement (Jazz Pharmaceuticals PLC)
No Solicitation. (a) Until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 8.01, the Company shall not, and shall cause its Subsidiaries and its and their respective Representatives The Stockholder will not to, directly or indirectly, indirectly (i) solicit, initiateinitiate or encourage (or authorize any person to solicit, knowingly facilitate initiate or knowingly encourage the submission or announcement of encourage) any inquiries, proposals or offers that constitute or would reasonably be expected to lead to any Takeover Acquisition Proposal, (ii) provide participate in any non-public information concerning the Company discussion or its Subsidiaries negotiations regarding, or furnish to any other Person or group in connection any information with any Takeover Proposalrespect to, or engage otherwise cooperate in any discussions way with, or negotiations with respect participate in, facilitate or encourage any effort or attempt by any other Person to any Takeover Proposaldo or seek the foregoing, (iii) approve, support, adopt, endorse or recommend any Takeover Proposalof the foregoing, or (iv) take enter into any action letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve or agree to do any of the foregoing. The Company shallStockholder shall immediately (and in any event within 24 hours) advise the Parent and Merger Subsidiary (orally and in writing) of the terms of any communications he or any of his affiliates may receive relating to any Acquisition Proposal (including, and without limitation, the identify of the party making any such Acquisition Proposal).
(b) The Stockholder shall cause its Subsidiaries and its and their respective Representatives not, nor shall such Stockholder permit any affiliate of such Stockholder to, immediately cease and cause nor shall such Stockholder act in concert with or permit any affiliate to be terminated any solicitation, encouragement, discussion or negotiation act in concert with any Person person to make, or groups that may be ongoing in any manner participate in, directly or indirectly, a "solicitation" of "proxies" (as such terms are used in the rules of the Securities and Exchange Commission) or powers of attorney or similar rights to vote, or seek to advise or influence any person with respect to the voting of, any Takeover Proposal shares of Company Common Stock in connection with any vote or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other action on any matter, other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company or any of its Subsidiaries or any of its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None recommend that Stockholders of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained vote in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge favor of the Company, is considering making, a Takeover Proposal Merger and the Merger Agreement and otherwise as expressly provided by Article One of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(bc) Notwithstanding anything Such Stockholder shall not, nor shall such Stockholder permit any affiliate of such Stockholder to, nor shall such Stockholder act in concert with or permit any affiliate to the contrary contained act in this Agreementconcert with any person to, if at deposit any time prior to the Acceptance Time, (i) the shares of Company has received a bona fide, written Takeover Proposal from any Person or group that did not result from a breach of this Section 6.02, and (ii) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or could reasonably be expected to result Common Stock in a Superior Proposal, then the voting trust or subject any shares of Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person Common Stock to any arrangement or group making such Takeover Proposal, (A) furnish information (including non-public information) agreement with any person with respect to the Company and its Subsidiaries to the Person or group making such Takeover Proposal; provided, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure voting of such information in the context shares of considering Takeover ProposalsCompany Common Stock, and (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board except as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date by Article One of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither the Company Board nor Nothing herein shall prohibit any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions action permitted by Section 6.4 of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, Merger Agreement from being taken by any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification party thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable Law, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e).
(g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writ
Appears in 2 contracts
Sources: Stockholder Voting and Option Agreement (Interlott Technologies Inc), Stockholder Voting and Option Agreement (Gtech Holdings Corp)
No Solicitation. (a) Until the earlier of the Effective Time and the valid termination of Except as provided in this Agreement pursuant to Section 8.015.2(a), the Company shall not, and shall cause not permit or authorize any of its Subsidiaries and or any director, officer, employee, investment banker, financial advisor, attorney, accountant or other advisor, agent or representative (collectively, “Representatives”) of the Company or any of its and their respective Representatives not toSubsidiaries, directly or indirectly, to (i) solicit, initiate, knowingly facilitate endorse, or knowingly encourage or facilitate any inquiry, proposal or offer with respect to, or the submission making or announcement of completion of, any inquiriesAcquisition Proposal, proposals or offers any inquiry, proposal or offer that constitute or would is reasonably be expected likely to lead to any Takeover Acquisition Proposal, (ii) provide enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person any non-public information concerning the Company or its Subsidiaries to any Person or group in connection data with any Takeover Proposalrespect to, or engage otherwise cooperate in any discussions or negotiations with respect to way with, any Takeover Acquisition Proposal, (iii) subject to Section 5.2(b), approve, supportrecommend, adoptagree to or accept, endorse or recommend publicly propose to approve, recommend, agree to or accept, any Takeover Proposal, Acquisition Proposal or (iv) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction underresolve, or a third party becoming an “interested stockholder” under, Section 203 of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve publicly propose or agree to do any of the foregoing. The Company shall, and shall cause each of its Subsidiaries and the Representatives of the Company and its and their respective Representatives Subsidiaries to, (A) immediately cease and cause to be terminated any solicitation, encouragement, discussion all existing discussions or negotiation negotiations with any Person or groups that may be ongoing conducted heretofore with respect to any Takeover Acquisition Proposal, (B) request and confirm the prompt return or destruction of all confidential information previously furnished with respect to any Acquisition Proposal and (C) not terminate, waive, amend, release or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company or modify any provision of its Subsidiaries or any of its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality or standstill agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror it or any of its Affiliates or Representatives is a party with respect to take any action contemplated this Agreement.
(b) Acquisition Proposal, and shall enforce the provisions of any such agreement. Notwithstanding anything to the contrary contained in this Agreementforegoing, if at any time following the date of this Agreement and prior to obtaining the Acceptance TimeStockholder Approval, (i1) the Company has received receives a written Acquisition Proposal that the Company Board believes in good faith to be bona fide, written Takeover (2) such Acquisition Proposal from any Person or group that was unsolicited and did not otherwise result from a breach of this Section 6.025.2, and (ii3) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, faith that such Takeover Acquisition Proposal constitutes or could is reasonably be expected likely to result in a Superior ProposalProposal and (4) the Company Board determines in good faith (and after consultation with outside counsel) that the failure to take the actions referred to in clause (x) or (y) would be reasonably likely to constitute a breach of its fiduciary duties to the stockholders of the Company under applicable Law, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, may (Ax) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group making such Takeover Acquisition Proposal; provided, provided that (x) prior to furnishing any such information the Company shall have first received from the Person making such Acquisition Proposal an executed confidentiality agreement containing terms substantially concurrently provide similar to, and not materially less favorable to Acquiror the Company than, those set forth in the Confidentiality Agreement (as defined below); provided that any non-public information (provided to any Person given such access shall have been previously provided to Parent or access) concerning shall be provided to Parent prior to or concurrently with the Company or its Subsidiaries that time it is provided to (or access which is given to) any such Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage participate in discussions or negotiations with the Person making such Takeover Acquisition Proposal regarding such Takeover Proposal; provided, however, that prior to Acquisition Proposal or concurrently with take the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for specified in clause (iiC) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposalpreceding sentence.
(cb) The Company shall promptly (andExcept as provided in this Section 5.2(b), in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither neither the Company Board nor any committee thereof shall (i) (A) withdraw or rescind (or modify or qualify in a any manner adverse to Acquiror Parent or Merger Sub)) the approval, recommendation or declaration of advisability by the Company Board or any such committee of this Agreement, the Merger or any of the other transactions contemplated hereby, (B) adopt, approve, recommend, endorse or otherwise declare advisable the adoption of any Acquisition Proposal, (C) resolve, agree or publicly propose to withdraw take any such actions or rescind (or modify or qualify D) submit this Agreement to its stockholders without recommendation (each such action set forth in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board this Section 5.2(b)(i) being referred to in Section 4.03(b), herein as an “Adverse Recommendation Change”) or (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iiiA) cause or permit the Company to execute enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or enter intoother Contract (other than a confidentiality agreement pursuant to and consistent with the terms of Section 5.2(a)) (each, an “Alternative Acquisition Agreement”) constituting or related to, or which is intended to or is reasonably likely to lead to, any Acquisition AgreementProposal or (B) resolve, (iv) agree or publicly propose or announce an intention to take any of such actions. Notwithstanding the foregoing actionsforegoing, (v) if at any time following the date any Takeover Proposal of this Agreement and prior to obtaining the Stockholder Approval, (other than any tender or exchange offer relating to securities of 1) the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue receives a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and written Acquisition Proposal that has not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include been withdrawn that the Company Board Recommendation believes in the Schedule 14D-9 when disseminated good faith to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i)be bona fide, (ii), (iii), (iv), (v), (vi2) or (vii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to such Acquisition Proposal was unsolicited and did not otherwise result from a Superior Proposal if and only if: (v) the Company has complied with the other provisions breach of this Section 6.025.2, (w3) the Company Board determines in good faith (after consultation with outside counsel and its outside legal counselfinancial advisor) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable Law, Acquisition Proposal constitutes a Superior Proposal and (x4) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisorscounsel) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends failure to accept take the actions referred to in clause (x) or recommend such Superior Proposal, (y) would be reasonably likely to constitute a breach of its fiduciary duties to the stockholders of the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquirorunder applicable Law, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it Board may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) effect an Adverse Recommendation Change or (y) terminate this Agreement pursuant to Section 7.1(d)(2) in order to enter into a definitive binding agreement with respect to such Superior Proposal; provided, furtherhowever, that the Company may not take either of the actions described in clause (x) or (y) above unless (I) the event Company promptly notifies Parent in writing at least five Business Days before taking that there is action of its intention to do so, and specifying the reasons therefor, including the terms and conditions of, and the identity of any material Person making, such Superior Proposal, and contemporaneously furnishing a copy of the relevant Alternative Acquisition Agreement and any other relevant transaction documents (it being understood and agreed that any amendment to the financial terms of or any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result other material term of such Superior Proposal shall be deemed to be require a material amendment), new written notice by the Company shall notify Acquiror and a new five Business Day period) and (II) prior to the expiration of such material revision five Business Day period, Parent does not make a proposal to adjust the terms and conditions of this Agreement that the Company Board determines in compliance good faith (after consultation with Section 6.02(coutside counsel and its financial advisor) and that the failure to take such action is no longer reasonably likely to constitute a breach of its fiduciary duties to the stockholders of the Company under applicable Law. During the five Business Day period during which prior to its effecting an Adverse Recommendation Change or terminating this Agreement as referred to above, the Company shall, and shall cause its financial and legal advisors to, negotiate with Parent in good faith (to the extent Parent seeks to negotiate) regarding any revisions to the terms of the transactions contemplated by this Agreement proposed by Parent.
(c) In addition to the obligations of the Company set forth in Section 5.2(a) and (b), the Company promptly, and in any event within 24 hours of receipt, shall advise Parent in writing in the event the Company or any of its Subsidiaries or Representatives receives (i) any Acquisition Proposal or indication by any Person that it is considering making an Acquisition Proposal, (ii) any request for information, discussion or negotiation that is reasonably likely to lead to or that contemplates an Acquisition Proposal or (iii) any inquiry, proposal or offer that is reasonably likely to lead to an Acquisition Proposal, in each case together with the terms and conditions of such Acquisition Proposal, request, inquiry, proposal or offer and the identity of the Person making any such Acquisition Proposal, request, inquiry, proposal or offer, and shall furnish Parent with a copy of such Acquisition Proposal (or, where such Acquisition Proposal is not in writing, with a description of the material terms and conditions thereof). The Company shall keep Parent informed in all material respects on a timely basis of the status and details (including, within 24 hours after the occurrence of any material amendment, modification, development, discussion or negotiation) of any such Acquisition Proposal, request, inquiry, proposal or offer, including furnishing copies of any written inquiries, correspondence and draft documentation. Without limiting any of the foregoing, the Company shall promptly (and in any event within 24 hours) notify Parent orally and in writing if it determines to begin providing non-public information or to engage in discussions or negotiations concerning an Acquisition Proposal pursuant to Section 5.2(a) or (b) and shall in no event begin providing such information or engaging in such discussions or negotiations prior to providing such notice.
(d) The Company agrees that any material violation of the restrictions set forth in this Section 5.2 by any Representative of the Company or any of its Subsidiaries, whether or not such Person is purporting to act on behalf of the Company or any of its Subsidiaries or otherwise, shall be deemed to be a material breach of this Agreement by the Company.
(e) The Company shall not, and shall cause its Subsidiaries not to, enter into any confidentiality agreement with any Person subsequent to the date of this Agreement that would restrict the Company’s ability to comply with any of the terms of this Section 5.2, and represents that neither it nor any of its Subsidiaries is a party to any such agreement.
(f) Except in connection with effecting an Adverse Recommendation Change pursuant to Section 5.2(b), the Company shall not take any action to exempt any Person (other than Parent, Merger Sub and their respective directorsAffiliates) from the restrictions on “business combinations” or any similar provision contained in any Takeover Law or otherwise cause such restrictions not to apply, officersor agree to do any of the foregoing.
(g) Notwithstanding anything herein to the contrary, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior be permitted to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation comply with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules Rule 14d-9 and 14e-2(a) Rule 14e-2 promulgated under the Exchange Act Act; provided, however, that compliance with such rules will in no way limit or from issuing modify the effect that any action pursuant to such rules would otherwise have under this Agreement (it being understood, however, that a customary “stop, look and listen” communication, as defined in communication by the Company Board or any committee thereof pursuant to Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, not constitute an Adverse Recommendation Change for Change).
(h) For purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e).
(g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writ:
Appears in 2 contracts
Sources: Merger Agreement (Green Bancorp, Inc.), Merger Agreement (Green Bancorp, Inc.)
No Solicitation. (a) Until Prior to the earlier Expiration Date, each Stockholder (in its capacity as a stockholder of the Effective Time and the valid termination of this Agreement pursuant to Section 8.01, the Company Company) shall not, shall cause each of its controlled Affiliates not to, and shall use reasonable best efforts to cause its Subsidiaries and its and their respective Representatives each person that controls such Stockholder (each, a “Representative”) not to, directly or indirectly, (i) solicit, initiate, knowingly facilitate encourage or knowingly encourage facilitate any inquiries regarding, or the submission or announcement making of any inquiriesproposal or offer that constitutes, proposals or offers that constitute or would could reasonably be expected to lead to any to, a Company Takeover Proposal, (ii) provide engage in, continue or otherwise participate in any non-public information concerning the Company discussions or its Subsidiaries negotiations that could reasonably be expected to lead to, or furnish to any Person or group other person any information in connection with or for the purpose of encouraging or facilitating, a Company Takeover Proposal (other than, solely in response to an unsolicited inquiry, to refer the inquiring person to this Section 2.1 and/or Section 5.3 of the Merger Agreement and to limit its conversation or other communication exclusively to such referral), or (iii) approve, recommend or enter into, or propose to approve, recommend or enter into, any letter of intent or similar document, agreement, commitment, or agreement in principle (whether written or oral, binding or nonbinding) with respect to a Company Takeover Proposal, ; provided that nothing herein shall prohibit any Stockholder or engage any of its controlled Affiliates or Representatives from participating in any discussions or negotiations with respect to any a possible stockholders’ consent or voting agreement in connection with a Company Takeover Proposal, Proposal in the event that the Company becomes permitted to taken the actions set forth in clause (iiiA) approve, support, adopt, endorse or recommend any Takeover Proposal, clause (ivB) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 5.3(c) of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve or agree to do any of the foregoing. The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with any Person or groups that may be ongoing Merger Agreement with respect to any Takeover Proposal or potential such Company Takeover Proposal. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company or any of its Subsidiaries or any of its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received a bona fide, written Takeover Proposal from any Person or group that did not result from a breach of this Section 6.02, and (ii) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or could reasonably be expected to result in a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, (A) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group making such Takeover Proposal; provided, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date For purposes of this Agreement, provide the material terms and conditions term “Affiliate” shall have the meaning assigned to it in the Merger Agreement, but shall not include any entity whose equity securities are registered under the Exchange Act (or are publicly traded in a foreign jurisdiction), solely by reason of the fact that one or more nominees or representatives of any such inquiry, proposal, offer or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details Stockholders serves as a member of discussions with respect theretoits board of directors or similar governing body, including any material changes to unless the terms of any Stockholders or their Affiliates otherwise control such inquiry, proposal, offer or requestentity. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date For purposes of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable Law, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror an Affiliate of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e).
(g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writStockholders.
Appears in 2 contracts
Sources: Voting and Support Agreement (Dollar Tree Inc), Voting and Support Agreement (Trian Fund Management, L.P.)
No Solicitation. (a) Until From the execution and delivery of this Agreement and until the earlier to occur of the Effective Time and the valid termination of this Agreement pursuant to Section 8.017.1 hereof, the Company Seagate and its Subsidiaries shall not, and they shall cause its Subsidiaries and its and their respective Representatives officers, directors, affiliates or employees or any investment banker, attorney or other advisor or representative retained by any of them not to, directly or indirectly, indirectly (i) solicit, initiate, knowingly facilitate encourage or knowingly encourage induce the making, submission or announcement of any inquiriesSeagate Acquisition Proposal (as defined in Section 5.4(b) hereof), proposals (ii) participate in any discussions or offers negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitute constitutes or would may reasonably be expected to lead to to, any Takeover Proposal, (ii) provide any non-public information concerning the Company or its Subsidiaries to any Person or group in connection with any Takeover Proposal, or engage in any discussions or negotiations with respect to any Takeover Seagate Acquisition Proposal, (iii) engage in discussions with any person with respect to any Seagate Acquisition Proposal, (iv) subject to the terms of Section 5.2(c) hereof, approve, support, adopt, endorse or recommend any Takeover Seagate Acquisition Proposal, (iv) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise cooperate with relating to any Seagate Acquisition Transaction (as defined in Section 5.4(b) hereof); provided, however, that until the date on which this Agreement is approved by the requisite vote of the stockholders of Seagate, the terms of this Section 5.4(a) shall not prohibit Seagate from furnishing information regarding Seagate and its Subsidiaries to, entering into a confidentiality or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiationsnon-disclosure agreement with, or entering into discussions with, any person or group in response to a Seagate Superior Offer submitted by such person or group (viand not withdrawn) resolve if (a) neither Seagate nor any agents or agree to do representative of Seagate and its Subsidiaries shall have violated any of the foregoing. The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with any Person or groups that may be ongoing with respect to any Takeover Proposal or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company or any of its Subsidiaries or any of its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives restrictions set forth in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement5.4(a), the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received a bona fide, written Takeover Proposal from any Person or group that did not result from a breach Board of this Section 6.02, and (ii) the Company Board determines Directors of Seagate concludes in good faith, after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or could reasonably be expected action is necessary in order for the Board of Directors of Seagate to result in a Superior Proposalcomply with its fiduciary obligations to the stockholders of Seagate under applicable Law, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by (c) Seagate receives from such Person person or group making such Takeover Proposal, (A) furnish information (including an executed confidentiality or non-disclosure agreement containing customary limitations on the use and disclosure of all non-public information) written and oral information furnished to such person or group by or on behalf of Seagate and containing terms no less favorable to the disclosing party than the terms of the Confidentiality Agreement (including with respect to any standstill arrangements, unless the Company standstill arrangements in the Confidentiality Agreement are waived and its Subsidiaries (d) prior to the Person or group making furnishing any such Takeover Proposal; provided, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (to such person or access) concerning the Company group, or its Subsidiaries that is provided to (entering into negotiations or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiariesdiscussions, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure Seller notifies Purchaser promptly of such inquiries, proposals or offers received by, any such information in the context of considering Takeover Proposalsrequested from, and (B) engage in or any such discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; providedsought to be initiated or continued with, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror any of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, andrepresentatives indicating, in connection with such notice, and subject to the existing terms of confidentiality obligations name of the Company as in place as of person and the date of this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreementsand furnishes such non-public information to Veritas to the extent such information has not been previously furnished to Veritas. Seagate and its subsidiaries shall immediately cease any and all existing activities, and oral summaries of discussions or negotiations with any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers parties conducted heretofore with respect to any Person or group making a Takeover Seagate Acquisition Proposal.
(db) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions For all purposes of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of and under this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to term "SEAGATE ACQUISITION PROPOSAL" shall mean any such Takeover Proposal and each material modification thereto), (vi) withhold offer or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company proposal (other than the Offer), fail an offer or proposal by Veritas) relating to issue a press release publicly announcing within ten (10) Business Days any Seagate Acquisition Transaction. For all purposes of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of under this Agreement, "SEAGATE ACQUISITION TRANSACTION" shall mean any transaction or series of related transactions, other than the Offer and transactions contemplated by this Agreement or the Merger (any action described in clause OD Documents, involving: (i), (ii), (iii), (iv), (v), (vi) any acquisition or (vii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the contrary in this Agreement, at purchase from Seagate by any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable Law, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept person or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period "group" (as it may be extended pursuant to the following provisodefined under Section 13(d) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and the rules and regulations promulgated thereunder) of more than fifteen percent (15%) in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e).
(g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as interest of the date total outstanding voting securities of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstanceSeagate, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time tender offer or exchange offer that if consummated would result in any person or "group" (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any defined under Section 13(d) of the following constituteExchange Act and the rules and regulations promulgated thereunder) beneficially owning more than fifteen percent (15%) of the total outstanding voting securities of Seagate, or be taken into account in determining any merger, consolidation, business combination or similar transaction involving Seagate pursuant to which the existence of, an Intervening Event: stockholders of Seagate immediately preceding such transaction would hold less than fifteen percent (x15%) of the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement equity interests in the market price surviving or trading volume resulting entity of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stocksuch transaction; (ii) no director had knowledgeany sale, as lease (other than in the ordinary course of business), exchange, transfer, license (other than in the ordinary course of business), acquisition or disposition of more than fifteen percent (15%) of the date assets and properties of this Agreement, that such Intervening Event was reasonably foreseeable Seagate; or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faithany liquidation or dissolution of Seagate, after consultation with its financial advisor and outside legal counsel, thatexcluding, in light all cases any disposition of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with assets covered by the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writOD Documents.
Appears in 2 contracts
Sources: Merger Agreement (Veritas Software Corp /De/), Agreement and Plan of Merger and Reorganization (Seagate Technology Inc)
No Solicitation. (a) Until the earlier Each of the Effective Time Parent and the valid termination of this Agreement pursuant to Section 8.01, the Company agrees that it shall not, and shall cause its respective Subsidiaries not to, and shall use its reasonable best efforts to direct its and its and their respective Subsidiaries’ Representatives not to, directly or indirectly, (i) solicit, initiate, knowingly facilitate encourage, or knowingly encourage the submission or announcement of any inquiriesfacilitate, proposals or offers that constitute or would reasonably be expected to lead to any Takeover ProposalProposal or the making, announcement or consummation thereof, (ii) provide enter into or otherwise participate in any non-public information concerning discussions (except to notify a Person of the Company existence of the provisions of this Section 5.4) or its Subsidiaries negotiations regarding, or furnish to any Person any information (regardless of whether such information is material or group already publicly available) in connection with any Takeover Proposalwith, or engage in any discussions or negotiations with respect to furtherance of, any Takeover Proposal, (iii) approvewaive, supportterminate, adopt, endorse modify or recommend fail to enforce any Takeover Proposalprovision of any confidentiality or “standstill” or similar obligation of any Person (other than the other party hereto) with respect to a party or any of its Subsidiaries, (iv) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” approve, adopt or other similar anti-takeover statute or regulation (including any transaction underrecommend, or a third party becoming an “interested stockholder” underpublicly propose to approve, Section 203 adopt or recommend, any Takeover Proposal or submit to the vote of its shareholders any Takeover Proposal before the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposaltermination of this Agreement, (v) otherwise cooperate with enter into, or knowingly assist approve or participate recommend or publicly propose to approve or recommend the entering into of any letter of intent, memorandum of understanding, amalgamation or merger agreement or other agreement, arrangement or understanding relating to any Takeover Proposal before the termination of this Agreement (other than a confidentiality agreement referred to in any such inquiries, proposals, offers, discussions or negotiationsthe proviso to the last sentence of this Section 5.4(a)), or (vi) resolve authorize any of, or commit or agree to do any of of, the foregoing. The Each of Parent and the Company (A) shall, and shall cause its respective Subsidiaries to, and shall use its reasonable best efforts to direct its and its and their respective Subsidiaries’ Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion all existing discussions or negotiation negotiations with any Person or groups that may be ongoing (other than the other party hereto and its Representatives) conducted heretofore with respect to any Takeover Proposal and (B) shall immediately take all steps necessary to terminate any approval under any confidentiality or potential “standstill” or similar provision that may have been heretofore given by Parent or the Company under any such provisions authorizing any Person to make a Takeover Proposal. The Company shall promptly after Notwithstanding the date hereof request each Person foregoing, the restrictions in clauses (if anyi), (ii), (iii) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return and, to the Company extent applicable thereto, (vi) of the first sentence of this Section 5.4(a) shall not prohibit Parent or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company or any of its Subsidiaries and Representatives, on the one hand, or any of its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries and Representatives, on the other hand, at any time before obtaining the Parent Share Issuance Vote or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of the Company Merger Vote, as the case may be, from participating in any discussions or its Subsidiaries shall enter into negotiations regarding, furnishing to any Person any information with respect to, or waiving, modifying or electing not to enforce any confidentiality agreement subsequent to the date hereof which prohibits the Company or “standstill” or similar obligation of any Person in respect of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely (including with respect to the extent necessary following proviso) that has been publicly announced or otherwise communicated to allow Acquiror to effect the transactions contemplated its officers or permitted by this Agreement; provided that no provision its board of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreementdirectors, if at any time prior to the Acceptance Time, its board of directors (ior an authorized and empowered committee thereof) the Company has received a bona fide, written Takeover Proposal from any Person or group that did not result from a breach of this Section 6.02, and (ii) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counselcounsel and financial advisor, that such Takeover Proposal constitutes or could would reasonably be expected likely to result in lead to a Superior Proposal; provided that (I) before a party furnishing any information to, then the Company mayor negotiating with, upon receipt of an Acceptable Confidentiality Agreement executed by such any Person or group making such with respect to a Takeover Proposal, such party shall have entered into a confidentiality agreement with such Person containing confidentiality terms and “standstill” or similar obligations not less restrictive in the aggregate to such Person and its Representatives than the provisions of the Confidentiality Agreement are to Parent and its Representatives (Ain the case of the Company furnishing information to, or negotiating with, any Person) furnish or the Company and its Representatives (in the case of Parent furnishing information to, or negotiating with, any Person), and (including non-public informationII) with respect all such information has previously been made available to the Company and its Subsidiaries Representatives (in the case of Parent furnishing information to any Person) or Parent and its Representatives (in the Person or group making such Takeover Proposal; provided, that (x) case of the Company shall furnishing information to any Person) or will be so made available substantially concurrently provide to Acquiror any non-public information (or access) concerning concurrent with the Company or its Subsidiaries that time it is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover ProposalPerson.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(db) Neither the board of directors of Parent or the Company Board nor any committee thereof shall (i) withdraw or rescind (or withhold, withdraw, modify or qualify the Parent Recommendation (in the case of Parent) or the Company Recommendation (in the case of the Company) in a manner adverse to Acquiror the Company or Merger Sub)Parent, as applicable, (ii) fail to include the Parent Recommendation (in the case of Parent) or the Company Recommendation (in the case of the Company) in the Joint Proxy Statement/Prospectus, or (iii) recommend or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (viiiii) being referred to as a “Recommendation Withdrawal”); provided, however, that (A) the delivery by a party, its board of directors or an authorized and empowered committee thereof of any notice specified in Section 5.4(d) shall not be deemed to be or constitute a Recommendation Withdrawal, (B) the provision of factual information by a party to its shareholders shall not be deemed to be or constitute a Recommendation Withdrawal so long as the disclosure through which such factual information is conveyed, taken as a whole, is not contrary to or materially inconsistent with the Parent Recommendation (in the case of Parent) or the Company Recommendation (in the case of the Company), and (C) for purposes of the definition of Recommendation Withdrawal, (I) in the case of Parent, the term “Adverse Parent Recommendation” shall refer only to the recommendation by the board of directors of Parent in respect of the Parent Share Issuance Vote and (II) in the case of the Company, the term “Company Recommendation” shall refer only to the recommendation by the board of directors of the Company in respect of the Company Merger Vote.
(c) Notwithstanding anything to the contrary contained in this Agreement and subject to compliance with Section 5.4(d): (i) at any time before obtaining the Company Merger Vote, the Company’s board of directors (or an authorized and empowered committee thereof) may make a Recommendation ChangeWithdrawal (A) in response to, or as a result of, a material event, development, occurrence, or change in circumstances or facts, occurring after the date hereof (which event, development, occurrence, circumstances or facts was not known to be reasonably likely to occur by the Company’s board of directors (or applicable authorized and empowered committee thereof) as of the date hereof) (a “Company Intervening Event”) or (B) in response to a Takeover Proposal that the Company’s board of directors (or applicable authorized and empowered committee thereof) shall have determined in good faith, after consultation with its outside legal counsel and financial advisor, constitutes a Superior Proposal, in each case, if the Company’s board of directors (or applicable authorized and empowered committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure to take such action would be reasonably likely to violate its fiduciary (or similar) duties under applicable Law; and (ii) at any time before obtaining the Parent Share Issuance Vote, the board of directors of Parent (or an authorized and empowered committee thereof) may make a Recommendation Withdrawal in response to, or as a result of, a material event, development, occurrence, or change in circumstances or facts, occurring after the date hereof (which event, development, occurrence, circumstances or facts was not known to be reasonably likely to occur by Parent’s board of directors (or applicable authorized and empowered committee thereof) as of the date hereof) (a “Parent Intervening Event”) if such Parent’s board of directors (or applicable authorized and empowered committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure to take such action would be reasonably likely to violate its fiduciary (or similar) duties under applicable Law. Notwithstanding anything to the contrary contained in this Agreement, (x) no event, development, occurrence, circumstance or fact that affects or relates to Parent or any of its Subsidiaries shall be deemed to be, or contribute to, any Company Intervening Event unless such event, development, occurrence, circumstance or fact also affects or relates to the Company and/or any of its Subsidiaries, and, in such case, the board of directors of the Company (or applicable authorized and empowered committee thereof) shall only consider the extent to which such event, development, occurrence, circumstance or fact affects or relates to the Company and its Subsidiaries (not including any effect on Parent and its Subsidiaries) in determining whether a Recommendation Withdrawal is appropriate in response to such Company Intervening Event, (y) no event, development, occurrence, circumstance or fact that affects or relates to the Company or any of its Subsidiaries shall be deemed to be, or contribute to, any Parent Intervening Event unless such event, development, occurrence, circumstance or fact also affects or relates to Parent and/or any of its Subsidiaries, and, in such case, the board of directors of Parent (or applicable authorized and empowered committee thereof) shall only consider the extent to which such event, development, occurrence, circumstance or fact affects or relates to Parent and its Subsidiaries (not including any effect on the Company and its Subsidiaries) in determining whether a Recommendation Withdrawal is appropriate in response to such Parent Intervening Event and (z) with respect to Parent, no Takeover Proposal shall be deemed to be a Parent Intervening Event unless (1) such Takeover Proposal is bona fide and in writing, (2) such Takeover Proposal has not been obtained in breach of Section 5.4 and (3) the board of directors of Parent (or applicable authorized and empowered committee thereof) has determined, in the good faith exercise of its fiduciary (or similar) duties, that it shall recommend such Takeover Proposal to its shareholders. For purposes of this Section 5.4(c), each reference to “10% or more” in the definition of “Takeover Proposal” shall be deemed to be a reference to “more than 50%.” For the avoidance of doubt, no increase in the share price of Parent or Company from the date hereof shall be deemed to be a Parent Intervening Event or Company Intervening Event, respectively, provided that this limitation shall not prevent or otherwise affect a determination that any material event, development, occurrence, or change in circumstances or facts underlying such increase in share price has resulted in a Parent Intervening Event or Company Intervening Event.
(d) Notwithstanding anything to the contrary contained in this Agreement, neither party’s board of directors (nor any authorized and empowered committee thereof) shall be entitled to make a Recommendation Withdrawal under Section 5.4(c), unless (i) such party shall have provided to the other party at least three Business Days before taking such action written notice that it intends to make a Recommendation Withdrawal and specifying the reasons therefor (and, if applicable, the information required by Section 5.4(f)), (ii) during such three Business Day period, if requested by the other party, the party delivering such written notice shall have engaged in good faith negotiations with the other party regarding any amendment or waiver to this Agreement proposed by the other party which shall be kept confidential by such party (except to the extent required to be disclosed under applicable Law), (iii) such party has not materially breached its obligations under this Section 5.4 and (iv) solely in the case of a Recommendation Withdrawal by the Company’s board of directors (or an authorized and empowered committee thereof) in response to a Takeover Proposal, the Company’s board of directors (or an authorized and empowered committee thereof) shall have determined, after taking into account all amendments and waivers to this Agreement made in response to such Takeover Proposal, and after consultation with its outside legal counsel and financial advisor, that such Takeover Proposal continues to constitute a Superior Proposal. The parties agree that any amendment to the financial terms (which shall include any change in (x) the form of consideration or (y) the percentage or allocation of form of consideration) or other material terms and conditions of a Takeover Proposal described in clause (i) above shall require a party to provide new written notification and shall commence a new three Business Day period under this Section 5.4(d).
(e) Notwithstanding anything to the contrary contained in this Agreement, at any time prior to the Acceptance Time, obligation of each of Parent and the Company Board may effect an Adverse to call, give notice of, convene and hold the Parent Shareholder Meeting (in the case of Parent) and the Company Shareholder Meeting (in the case of the Company) and to hold a vote of its shareholders for purposes of obtaining the Required Parent Vote or the Required Company Vote, as applicable, shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission to it of any Takeover Proposal (whether or not a Superior Proposal) or by a Recommendation Change in response Withdrawal made by it. If a party makes a Recommendation Withdrawal under Section 5.4(c), (i) such party shall nevertheless submit the matters contemplated by the Required Parent Vote or the Required Company Vote, as applicable, to a Superior Proposal if vote of its shareholders and only if: (vii) the Company has complied with the other provisions of this Section 6.02, (w) Joint Proxy Statement/Prospectus or the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable LawShareholder Materials, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend such Superior Proposalas applicable, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it all accompanying materials may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) include appropriate disclosure with respect to such Superior Proposal; provided, further, that Recommendation Withdrawal in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance accordance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (Law after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Lawcounsel.
(f) Each party shall as promptly as practicable (and in any event within 24 hours after receipt) advise the other party orally and in writing of (i) any Takeover Proposal (or any withdrawal thereof), (ii) any request for information that would reasonably be expected to lead to a Takeover Proposal and (iii) any inquiry with respect to, or which would reasonably be expected to lead to, any Takeover Proposal, such notice to include the material terms and conditions of any such Takeover Proposal, request or inquiry (including a copy of any such written Takeover Proposal, request or inquiry and any amendments or modifications thereto or if oral, a written summary thereof) and the identity of the Person making the Takeover Proposal, request or inquiry. Each of Parent and the Company shall keep the other fully informed on a reasonably current basis of the status of any such Takeover Proposal, request or inquiry, including any changes to the material terms and conditions thereof. Each party shall as promptly as practical (and in any event within 24 hours after becoming aware thereof) advise the other party orally and in writing of events, developments, occurrences or changes in circumstance that resulted in a Company Intervening Event or Parent Intervening Event, as applicable, in sufficient detail as to allow the other party to analyze and (if appropriate) respond to such event.
(g) Nothing contained in this Agreement Section 5.4 shall prohibit the Company a party or the Company Board its board of directors from (i) taking and disclosing to the Company’s stockholders its shareholders a position with respect to a tender offer contemplated by a third party pursuant to Rules 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act or from issuing making a statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9 under the Exchange Act (including a “stop, look and listen” communication, as defined in communication to Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e).
(gAct) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as making any disclosure to its shareholders if its board of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board directors determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, that the failure to make an Adverse Recommendation Change such disclosure would be reasonably likely to be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writprovided that any such action tak
Appears in 2 contracts
Sources: Merger Agreement (ALTERRA CAPITAL HOLDINGS LTD), Merger Agreement (Markel Corp)
No Solicitation. (a) Until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 8.01, the Company Such Stockholder shall not, not and shall cause its Subsidiaries and its and their respective Representatives not to, to directly or indirectly, if and to the extent prohibited by Section 5.3 of the Merger Agreement (assuming for this purpose that such Stockholder is the “Company”, as such term is defined in the Merger Agreement): (i) solicit, initiate, knowingly facilitate or knowingly encourage the submission (including by way of furnishing nonpublic information) any Competing Proposal or announcement of any inquiries, proposals or offers that constitute or would reasonably be expected to lead to any Takeover ProposalCompeting Inquiry, (ii) provide any non-public information concerning the Company engage in, continue or its Subsidiaries to any Person or group in connection with any Takeover Proposal, or engage otherwise participate in any discussions or negotiations with respect regarding, or furnish to any Takeover Proposalother Person any information or afford to any other Person access to the business, properties, assets, books, records or any personnel of the Company or its Subsidiaries, in each case in connection with or for the purpose of encouraging or facilitating, a Competing Proposal or Competing Inquiry, (iii) approve, supportendorse, adoptrecommend, endorse execute or recommend enter into, or publicly propose to approve, endorse, recommend, execute or enter into any Takeover ProposalAlternative Acquisition Agreement, (iv) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation Takeover Statute (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the Corporation LawDGCL) or any applicable anti-takeover provision in the Company’s organizational documents inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Competing Proposal, (v) otherwise cooperate with except at the written request of Parent, terminate, amend, release, modify, waive or knowingly assist fail to enforce any provision of the Company Rights Agreement or participate in exempt any such inquiriesPerson not affiliated with Parent from the definition of Acquiring Person thereunder, proposals, offers, discussions or negotiations, or (vi) resolve terminate, amend, release, modify or agree knowingly fail to do enforce any provision of, or grant any permission, waiver or request under, any standstill, confidentiality or similar contract entered into by the Company in respect of the foregoing. The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with any Person or groups that may be ongoing with respect to any Takeover in contemplation of a Competing Proposal or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company or any of its Subsidiaries or any of its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received a bona fide, written Takeover Proposal from any Person or group that did not result from a breach of this Section 6.02, and (ii) the Company Board determines in good faith, after consultation with its the Company’s independent financial advisor advisors and outside legal counsel, that failure to take any such Takeover Proposal constitutes or could actions would be reasonably be expected likely to result in a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, (A) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group making such Takeover Proposal; provided, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption breach of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would otherwise be inconsistent with the exercise of with, its fiduciary duties under applicable Law) or (vii) propose, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends resolve or agree to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting do any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal foregoing. Such Stockholder shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, not and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate not to directly or indirectly knowingly engage in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing conduct prohibited by Acquiror prior to 8:00 p.m. New York time on the last day Section 5.3 of the applicable period(s) described above Merger Agreement (assuming for this purpose that such Stockholder is the “Company”, as such term is defined in the Merger Agreement). Such Stockholder represents and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) warrants that such Stockholder has reviewed the failure terms of Section 5.3 of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Merger Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from taking and disclosing outside counsel to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e).
(g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writ
Appears in 2 contracts
Sources: Merger Agreement (GigPeak, Inc.), Tender and Support Agreement (Integrated Device Technology Inc)
No Solicitation. (a) Until the earlier of Prior to the Effective Time and the valid termination of this Agreement pursuant to Section 8.01Time, the Company shall notagrees that neither it, and shall cause any of its respective Subsidiaries and its and their or affiliates, nor any of the respective Representatives not todirectors, executive officers, agents or representatives of the foregoing, will, directly or indirectly, (i) solicit, initiate, knowingly facilitate initiate or knowingly encourage (including by way of furnishing information) any inquiries or the submission or announcement making of any inquiriesproposal with respect to any merger, proposals consolidation or offers that constitute other business combination involving the Company or would any Subsidiary of the Company or the acquisition of all or any significant part of the assets or capital stock (including but not limited to a majority voting interest) of the Company or any Subsidiary of the Company (an "Acquisition Transaction") or (ii) negotiate or otherwise engage in discussions with any person (other than Holdings and its representatives) with respect to any Acquisition Transaction, or which may reasonably be expected to lead to any Takeover Proposal, (ii) provide any non-public information concerning the Company or its Subsidiaries to any Person or group in connection with any Takeover Proposala proposal for an Acquisition Transaction, or engage enter into any agreement, arrangement or understanding (including any letter of intent, agreement in any discussions principle or negotiations similar agreement) with respect to any Takeover Proposalsuch Acquisition Transaction; provided, however, that, the Company may, in response to a proposal or inquiry unsolicited after the Original Execution Date, furnish information to, negotiate or otherwise engage in discussions with any person (iiipursuant to a customary confidentiality agreement) approve, support, adopt, endorse which makes or recommend any Takeover Proposal, (iv) take any action indicates in writing an intention or desire to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve or agree to do any of the foregoing. The Company shallmake, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with any Person or groups that may be ongoing with respect to any Takeover Proposal or potential Takeover Proposal. The Company shall promptly after whom the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company or any Board of its Subsidiaries or any of its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None Directors of the Company or has concluded in good faith after consultation with its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any financial advisor is reasonably capable of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Superior Proposal (as herein defined), if the Board of Directors of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received a bona fide, written Takeover Proposal from any Person or group that did not result from a breach of this Section 6.02, and (ii) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or could reasonably be expected to result in a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, (A) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group making such Takeover Proposal; provided, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties of the Board of Directors of the Company under applicable Lawlaw and such proposed Acquisition Transaction was not solicited by it in, (x) or did not otherwise result from a, breach of this Section 6.2 and subject to compliance with the other provisions of this Section 6.2; and provided further that notwithstanding anything to the contrary herein contained, the Board of Directors of the Company Board determines in good faith (after consultation may take and disclose to the Company's stockholders a position contemplated by Rule 14e-2 promulgated under the Exchange Act, comply with its outside legal counsel Rule 14d-9 thereunder and financial advisors) that the make all other disclosures required by applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy law. Any of the proposed acquisition agreement and any other documents related foregoing to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquirorthe contrary notwithstanding, the Company may engage in discussions with or provide information to any person or group that has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, made a proposal unsolicited after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) Original Execution Date with respect to an Acquisition Transaction for the limited purpose of determining whether such proposal is, or could lead to, a Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal .
(provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive b) Except as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties of the Company's Board of Directors under applicable Law.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e).
(g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreementlaw, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledgeagrees that, as of the date Original Execution Date, it, its Subsidiaries and affiliates, and the respective directors, executive officers, agents and representatives of this Agreementthe foregoing, that shall immediately cease and cause to be terminated any existing activities, discussions or negotiations with any person (other than Holdings and its representatives) conducted heretofore with respect to any Acquisition Transaction. The Company agrees to promptly advise Holdings, its Subsidiaries or affiliates, of any inquiries or proposals received by, any such Intervening Event was reasonably foreseeable information requested from, or reasonably likely any negotiations or discussions sought to occur be initiated or arise after continued with, the date Company, its Subsidiaries or affiliates, or any of this Agreement; the respective directors, executive officers, agents or representatives of the foregoing, in each case from a person (iiiother than Holdings and its representatives) with respect to an Acquisition Transaction, and a reasonable summary of the terms thereof, including the identity of such third party (unless disclosing the identity of such third party would violate the terms of any confidentiality or similar agreement binding on the Company provides Acquiror, at least two (2) Business Days and entered into on or prior to September 19, 1997), including any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Changefinancing arrangement or commitment in connection therewith, with a written notice specifying the date and time of such meetingand, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change except as otherwise would be inconsistent with the exercise of its fiduciary duties of the Company's Board of Directors under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writlaw, to update on an ongoing basis or upon Holdings' reasonable request, the status thereof, as well as any actions taken or other developments pursuant to this Section 6.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Hochberg Larry J), Agreement and Plan of Merger (Sportmart Inc)
No Solicitation. (a) Until the earlier Subject to Section 9, each of the Effective Time and the valid termination of this Agreement pursuant to Section 8.01, the Company TK Parties shall not, not and shall use its reasonable best efforts to cause its Subsidiaries Affiliates and its and their respective Representatives not to, directly or indirectly, : (ia) solicit, initiate, or knowingly facilitate any inquiries, proposal or knowingly encourage offer or the submission making, submission, modification or amendment or announcement of any inquiries, proposals or offers that constitute or would reasonably be expected to lead to any Takeover Proposal, (ii) provide any non-public information concerning the Company or its Subsidiaries to any Person or group in connection with any Takeover Proposal, or engage in any discussions or negotiations with respect to any Takeover Proposal, (iii) approve, support, adopt, endorse or recommend any Takeover Proposal, (iv) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve or agree to do any of the foregoing. The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with any Person or groups that may be ongoing with respect to any Takeover Proposal or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company or any of its Subsidiaries or any of its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received a bona fide, written Takeover Proposal from any Person or group that did not result from a breach of this Section 6.02, and (ii) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or could reasonably be expected to result in a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, (A) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group making such Takeover Proposal; provided, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that which constitutes or could would be reasonably be expected to lead to a Partnership Competing Proposal; (b) participate in or engage in any Takeover Proposalnegotiations or discussions (other than to state that it is not permitted to have discussions) regarding, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers furnish to any Person any nonpublic information relating to the Partnership in connection with, any inquiry, proposal or group making offer which constitutes or would be reasonably expected to lead to a Takeover Partnership Competing Proposal.
; (c) publicly support or recommend any Partnership Competing Proposal, (d) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once except with respect to any such Takeover Partnership Competing Proposal and each material modification thereto)that is the subject of a Partnership Change of Recommendation made in accordance with Section 5.2(d) of the Merger Agreement, (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) to, following the commencement request of Parent to do so, promptly publicly and without qualification recommend against any tender Partnership Competing Proposal, or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”).
(e) enter into any letter of intent or other document or agreement relating to, or any agreement or commitment providing for, any Partnership Competing Proposal. Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Timeforegoing, the Company Board TK Parties may effect an Adverse Recommendation Change (and may permit their Affiliates and their and their Affiliates’ Representatives to) participate in response to discussions and negotiations with any Person making a Superior Proposal if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable Law, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Partnership Competing Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused or its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (xRepresentatives) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Partnership Competing Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e).
(g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur the Partnership or arise after the date of this Agreement a material event, material development General Partner is engaging in discussions or material change in circumstances that was not known by the Company or the Company Board as negotiations with such Person pursuant to Section 5.2(b) of the date of this Merger Agreement and does has not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any breached Section 5.2 of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Merger Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; and (ii) no director had knowledgethe TK Parties’ negotiations and discussions are in conjunction with and ancillary to the Partnership’s or the General Partner’s discussions and negotiations. Each of TKC and TFL shall immediately cease, as and cause its directors, officers and employees to cease, and shall use its reasonable best efforts to cause its Representatives to immediately cease, any and all existing discussions or negotiations with any parties (or provision of any nonpublic information to any parties) conducted heretofore with respect to any Partnership Competing Proposal or Partnership Inquiry existing on the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writhereof.
Appears in 2 contracts
Sources: Voting and Support Agreement (Teekay LNG Partners L.P.), Voting and Support Agreement (Teekay Corp)
No Solicitation. (a) Until During the earlier of Pre-Closing Period, except in connection with the Effective Time and the valid termination of this Agreement pursuant to Section 8.01Transactions, the Company Seller shall not, and shall cause its Subsidiaries the other Seller Parties and its and their respective Affiliates and Representatives not to, directly or indirectly, (ia) solicitsolicit or initiate or induce or encourage, initiateor take any other action to facilitate, knowingly facilitate any Alternative Transaction or knowingly encourage the submission any inquiry or announcement of any inquiries, proposals or offers proposal that constitute or would reasonably be expected to lead to any Takeover Proposalan Alternative Transaction, (iib) provide any non-public information concerning the Company enter into, continue or its Subsidiaries to any Person or group in connection with any Takeover Proposal, or engage otherwise participate in any discussions or negotiations with respect regarding, furnish to any Takeover Proposal, (iii) approve, support, adopt, endorse or recommend person any Takeover Proposal, (iv) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction underinformation in furtherance of, or a third party becoming an “interested stockholder” under, Section 203 of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiriesway in furtherance of, proposals, offers, discussions or negotiations, or (vi) resolve or agree to do any of the foregoing. The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with any Person or groups that may be ongoing with respect to any Takeover Proposal or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company Alternative Transaction or any of its Subsidiaries inquiry or any of its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event inform a Person or group proposal that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received a bona fide, written Takeover Proposal from any Person or group that did not result from a breach of this Section 6.02, and (ii) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or could would reasonably be expected to result in a Superior Proposallead to an Alternative Transaction, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, (A) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group making such Takeover Proposal; provided, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (andapprove, endorse, recommend, execute or enter into any Contract, letter of intent, memorandum of understanding, agreement in principle, joint venture agreement, partnership agreement or merger, acquisition or similar agreement constituting, contemplating or otherwise relating to any event, within twenty-four (24) hours) notify Acquiror in writing in the event Alternative Transaction or any inquiry or proposal that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to an Alternative Transaction. For the avoidance of doubt, it is understood and agreed that the foregoing shall not prohibit any Takeover Proposal, of the Seller Parties or any initial request for non-public information concerning the Company their respective Affiliates or its Subsidiaries Representatives from responding to inquiries by any Person about a possible Alternative Transaction in order to inform such Person of the existence of the obligations contained in this Section 7.15; provided, that Seller shall promptly notify Buyer of the receipt by any of the Seller Parties or, to Seller’s Knowledge, their respective Affiliates or group who has made Representatives, of any inquiry or would reasonably be expected proposal relating to make any Takeover Proposalan Alternative Transaction in respect of the Purchased Assets or the Brand, which notice shall identify the Purchased Assets that are the subject of such inquiry or any initial request for discussions or negotiations related to any Takeover Proposalproposal, and, in connection with such notice, and subject to the existing terms of extent not prohibited by a confidentiality obligations of the Company as agreement in place as of on or before the date hereof, Seller shall (x) promptly notify Buyer of this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer or request thereof and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis identity of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person person or group making a Takeover Proposal.
(d) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable Law, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend such Superior Proposalinvolved, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including promptly furnish Buyer with a copy of the proposed acquisition agreement and any written inquiry, proposal or other documents related information relating to such Superior Proposal (a “Notice of Intended Recommendation Change”)Alternative Transaction, and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing keep Buyer informed on a current basis of any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect modifications to such Superior Proposal; providedinquiry, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e).
(g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings proposal or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writinformation.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Constellation Brands, Inc.), Asset Purchase Agreement (Constellation Brands, Inc.)
No Solicitation. (a) Until From the date of this Agreement until the earlier of (i) the Effective Time and (ii) the valid date of the termination of this Agreement pursuant to Section 8.01the Merger Agreement, the Company each Shareholder agrees that it shall not, and shall cause each of its Subsidiaries Affiliates, and its and their respective Representatives not to, directly or indirectly, indirectly (iA) solicit, initiate, knowingly facilitate initiate or knowingly encourage the submission or announcement making of any inquiries, proposals proposal that constitutes or offers that constitute or would is reasonably be expected likely to lead to any a Takeover Proposal, (iiB) provide enter into, continue or otherwise participate in any non-public information concerning discussions or negotiations regarding, or furnish to any person any of the Company Company’s or its Subsidiaries to any Person or group in connection Subsidiaries’ confidential information with respect to, any Takeover Proposal, or engage in (C) enter into any discussions or negotiations Takeover Proposal Documentation with respect to any Takeover Proposal, (iii) approve, support, adopt, endorse or recommend any Takeover Proposal, (iv) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve or agree to do any of . Notwithstanding the foregoing. The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with any Person or groups that may be ongoing with respect to any Takeover Proposal or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company or any of its Subsidiaries or any of its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received a bona fide, written Takeover Proposal from any Person or group that did not result from a breach of this Section 6.02, and (ii) the Company Board determines in good faithof Directors has determined, after consultation with its financial advisor and outside legal counsel, that such an unsolicited bona fide written Takeover Proposal constitutes or could reasonably be expected to result in a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, (A) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group making such Takeover Proposal; provided, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could would reasonably be expected to lead to any Takeover a Superior Proposal, or any initial request for non-public information concerning if the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposalis participating in discussions and negotiations with, or any initial furnishing information to the person making such Takeover Proposal pursuant to and in compliance with Section 6.06 of the Merger Agreement, then, notwithstanding clauses (A) and (B) above, such Shareholder, its Affiliates and their respective Representatives may also participate in discussions and negotiations with, and furnish information to, the person making such Takeover Proposal at the request for and direction of the Special Committee of the Company Board of Directors. Each Shareholder and its Affiliates, and its and their respective Representatives, shall immediately cease and cause to be terminated all discussions or negotiations related with any person conducted heretofore (other than with Parent) with respect to any Takeover Proposal, and, in connection with such notice, and subject except to the existing extent any discussions or negotiations by and among the parties to the A&R SSCSA are required pursuant to the terms of confidentiality obligations of the Company such agreement as in place effect as of the date of this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposalhereof.
(db) Neither For the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub)avoidance of doubt, or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), for the Company Board Recommendation or the findings or conclusions purposes of the Company Board referred to in this Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of4.04, any Takeover Proposalofficer, (iii) cause director, employee, agent or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities advisor of the Company (other than the Offer)in each case, in their capacities as such) or any material modification thereto is first made public or sent or given shall be deemed not to the stockholders be a Representative of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company Shareholder (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to directors as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable Law, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments are party to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior or a trustee of a party to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e).
(g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writ
Appears in 2 contracts
Sources: Voting and Support Agreement (Shapiro Steven A.), Voting and Support Agreement (Protective Insurance Corp)
No Solicitation. (a) Until Except as permitted by this Section 5.3, during the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 8.01, Pre-Closing Period the Company shall not, and shall cause its Subsidiaries officers and directors not to, and shall use reasonable best efforts to cause its and their respective other Representatives not to, directly or indirectly, (i) continue any solicitation, knowing encouragement, discussions or negotiations with any Persons that may be ongoing with respect to an Acquisition Proposal; (ii) (A) solicit, initiate, initiate or knowingly facilitate or knowingly encourage (including by way of furnishing non-public information) any inquiries regarding, or the submission or announcement making of any inquiriesproposal or offer that constitutes, proposals or offers that constitute or would reasonably be expected to lead to, an Acquisition Proposal (other than discussions solely to clarify the terms and conditions of such proposal or offer), (B) engage in, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Takeover Proposal, (ii) provide other Person any non-public information concerning the Company or its Subsidiaries to any Person or group in connection with any Takeover Proposalwith, or engage in for the purpose of soliciting or knowingly encouraging or facilitating, an Acquisition Proposal or any discussions proposal or negotiations with respect offer that would reasonably be expected to any Takeover Proposallead to an Acquisition Proposal (other than to state that the terms of this provision prohibit such discussion), (iiiC) approve, support, adopt, endorse or recommend or enter into any Takeover Proposalletter of intent, acquisition agreement, agreement in principle or similar agreement with respect to an Acquisition Proposal or any proposal or offer that would reasonably be expected to lead to an Acquisition Proposal (ivother than an Acceptable Confidentiality Agreement) or (D) take any action to make exempt any Person (other than Parent and its Subsidiaries) from the restrictions on “business combinations” or any similar provision contained in applicable Takeover Laws or the Company’s organizational and other governing documents; (iii) waive or release any Person from, forebear in the enforcement of, or amend any standstill agreement or any standstill provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, Contract; or (viiv) resolve or agree to do any of the foregoing. The As promptly as reasonably practicable (and in any event within two business days) following the date hereof, the Company shallshall discontinue electronic or physical data room access granted, and shall cause request the prompt return or destruction (to the extent provided for by the applicable confidentiality agreement) of all information or documents previously furnished to any Person (other than Parent, its Subsidiaries and its Affiliates and their respective Representatives toRepresentatives) that has made, immediately cease has indicated an intention to make an Acquisition Proposal and cause to be terminated all material incorporating such information created by any solicitation, encouragement, discussion such Person.
(b) If at any time on or negotiation with any Person or groups that may be ongoing with respect to any Takeover Proposal or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return of this Agreement and prior to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to Offer Acceptance Time the Company or any of its Subsidiaries or any of its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received receives a bona fide, fide written Takeover Acquisition Proposal from any Person or group that of Persons, which Acquisition Proposal was made on or after the date of this Agreement and did not result from a material breach of this Section 6.025.3, and (ii) the Company Board of Directors determines in good faith, after consultation with its financial advisor and outside legal counsel, that such Takeover Acquisition Proposal constitutes or could would reasonably be expected to result in a Superior ProposalOffer and that the failure to take such action described in clauses (x) and (y) below would be inconsistent with its fiduciary duties under applicable Legal Requirements, then then, notwithstanding anything in Section 5.3(a) to the contrary, the Company mayand its Representatives may (x) furnish, upon receipt of pursuant to an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover ProposalAgreement, (A) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group making of Persons who has made such Takeover Acquisition Proposal; provided, provided that (x) the Company shall substantially concurrently as promptly as practicable (and in any event within 36 hours) provide to Acquiror Parent any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which to the extent access to such information was not previously provided to Acquiror Parent or its Representatives; and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company engage in or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage otherwise participate in discussions or negotiations with the Person or group of Persons making such Takeover Proposal regarding such Takeover Acquisition Proposal; provided, howeverin the case of clauses (x) and (y), that at or prior to or concurrently with the first time that the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice furnishes any information to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, participates in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to with any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer Person on or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of after the date of this Agreement, the Company shall provide written notice to Parent of such determination in good faith of the Board of Directors as provided for above.
(c) During the Pre-Closing Period, the Company shall (i) promptly (and, and in any event, event within twenty-four (24) 36 hours) provide Acquiror with unredacted copies of all written notify Parent orally and in writing if any inquiries, requests, proposals or offersoffers with respect to, including proposed agreementsor that would reasonably be expected to lead to, and oral summaries of any oral inquiries, requests, proposals or offers, an Acquisition Proposal are received by the CompanyCompany or any of its Representatives and provide to Parent a copy of any written Acquisition Proposal (including any proposed term sheet, its Subsidiariesletter of intent, acquisition agreement or its other agreement or their respective Representativesother supporting materials with respect thereto) and a summary of any material unwritten terms and conditions thereof (and indicate the identity of such Person), and (ii) keep Parent reasonably informed of any material developments, discussions or negotiations regarding any Acquisition Proposal on a prompt basis (and in each case relating to a Takeover Proposalany event within 36 hours of such material development, discussion or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposalnegotiation).
(d) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the contrary Nothing in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable Law, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept 5.3 or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law.
(f) Nothing contained elsewhere in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party of the Company any “stop, look and listen” communication pursuant to Rules 14d-9 and 14e-2(aRule 14d-9(f) promulgated under the Exchange Act or from issuing a “stoptaking and disclosing such other position or disclosure as is required under Rule 14e-2(a), look and listen” communication, as defined in Rule 14d-9(f14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of or from taking any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreementaction necessary to comply with applicable Legal Requirements; provided, however, that no that, the Board of Directors shall not effect a Company Adverse Change Recommendation Change may be made unless the Company shall have first complied except in accordance with its obligations in Section 6.02(e6.1(b).
(ge) Notwithstanding anything to The Company agrees that in the contrary contained in event any Representative of the Company acting on behalf of the Company takes any action that, if taken by the Company, would constitute a breach of this Section 6.02 or elsewhere in this Agreement5.3, the Company Board may, at any time prior shall be deemed to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date be in breach of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writSection 5.3.
Appears in 2 contracts
Sources: Merger Agreement (Forty Seven, Inc.), Merger Agreement (Gilead Sciences Inc)
No Solicitation. (a) Until From the date hereof until the earlier of the Effective Time and or the valid termination of this Agreement pursuant to Section 8.01Agreement, the Company shall notnot and will not authorize or permit any of its officers, and shall cause its Subsidiaries and its and their respective Representatives not todirectors, directly employees, financial advisors, representatives or indirectly, agents to (i) solicit, seek, initiate, knowingly facilitate or knowingly encourage the submission any inquiries or announcement of any inquiriesproposals that constitute, proposals or offers that constitute or would be reasonably be expected likely to lead to, a proposal or offer for a merger, consolidation, business combination, sale of substantial assets of Company and its Subsidiaries, taken as whole (other than the sale of inventory or obsolete property in the ordinary course of business), sale of shares of its capital stock (including without limitation by way of a tender offer) or similar transaction involving such party or any of its Subsidiaries, other than the transactions contemplated by this Agreement (any of the foregoing inquiries or proposals being referred to any Takeover Proposalin this Agreement as an "ACQUISITION PROPOSAL"), (ii) engage in negotiations or discussions with any Person other than Parent or its affiliates (a "THIRD PARTY") concerning, or provide any non-public information concerning the Company or its Subsidiaries to any Person relating to, any Acquisition Proposal, or group (iii) agree to or recommend any Acquisition Proposal; PROVIDED, HOWEVER, that nothing contained in this Agreement shall prevent Company or the Company Board or the Special Committee from (A) furnishing nonpublic information to, or entering into discussions or negotiations with, any Person in connection with any Takeover Proposal, an unsolicited bona fide written Acquisition Proposal by such Person or engage in any discussions modifying or negotiations withdrawing its recommendation with respect to any Takeover Proposal, (iii) approve, support, adopt, endorse the transactions contemplated hereby or recommend any Takeover Proposal, (iv) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming recommending an “interested stockholder” under, Section 203 of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve or agree to do any of the foregoing. The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with any Person or groups that may be ongoing with respect to any Takeover Proposal or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover unsolicited bona fide written Acquisition Proposal to promptly return to the Company or destroy all non-public documents Shareholders, if and materials relating to the Takeover Proposal or to the Company or any of its Subsidiaries or any of its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely only to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received a bona fide, written Takeover Proposal from any Person or group that did not result from a breach of this Section 6.02, and (ii1) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or could reasonably be expected to result in a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, (A) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group making such Takeover Proposal; provided, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Board determines Special Committee believes in good faith (after consultation with its financial and legal advisors) that such Acquisition Proposal is reasonably capable of being completed on the terms proposed and would, if consummated, result in a transaction more favorable to the Shareholders than the transactions contemplated by this Agreement, and the Company Board or the Special Committee determines in good faith after consultation with outside legal counsel) counsel that the failure to take such action would is required for the Company Board or the Special Committee to comply with its fiduciary duties to the Shareholders under applicable law and (2) prior to furnishing such non-public information to, or entering into discussions or negotiations with, such Person, the Company Board or the Special Committee receives from such Person an executed confidentiality and standstill agreement with terms no less favorable to Company than those contained in the Confidentiality Agreement, dated April 12, 1999 between Parent and Company (the "CONFIDENTIALITY AGREEMENT"); or (B) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Company agrees not to release any Third Party from, or waive any provision of, any standstill agreement to which it is a party or any confidentiality agreement between it and another Person who has made, or who may reasonably be inconsistent considered likely to make, an Acquisition Proposal, unless the Company Board or the Special Committee determines in good faith after consultation with outside legal counsel that such action is necessary for the Company Board or the Special Committee to comply with its fiduciary duties to its Shareholders under applicable law.
(b) Company shall notify Parent immediately after receipt by Company (or its advisors) of any Acquisition Proposal or any request for nonpublic information in connection with an Acquisition Proposal or for access to its properties, books or records by any Person that informs Company that it is considering making, or has made, an Acquisition Proposal. Such notice shall be made orally and in writing and shall indicate in reasonable detail the terms and conditions of such proposal, inquiry or contact (including, without limitation, the identity of the Person making the Acquisition Proposal). Company shall continue to keep Parent informed, on a current basis, of the status of any such discussions or negotiations and the terms being discussed or negotiated.
(c) Neither the Company Board nor the Special Committee shall withdraw, modify or change, or propose to withdraw, modify or change, in a manner adverse to Parent, the approval or recommendation by the Company Board or the Special Committee, as the case may be, of the Offer, this Agreement or the Merger unless the Company Board or the Special Committee, as the case may be, determines, in the exercise of its fiduciary duties under applicable Lawduties, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends is necessary to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law.
(f) do so. Nothing contained in this Agreement shall Section 6.3(c) will prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders Shareholders a position with respect to a tender offer contemplated by a third party pursuant to Rules 14d-9 and 14e-2(a) Rule 14e-2 promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e)Act.
(g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writ
Appears in 2 contracts
Sources: Merger Agreement (Funco Inc), Merger Agreement (Electronics Boutique Holdings Corp)
No Solicitation. (a) Until the earlier None of the Effective Time and the valid termination of this Agreement pursuant to Section 8.01Target, the Company shall not, and shall cause its Subsidiaries and or any officer, director, employee, agent or representative (including any investment banker, financial advisor, attorney, accountant or other retained representative) of Target or any of its and their respective Representatives not to, Subsidiaries shall directly or indirectly, indirectly (i) solicit, initiate, knowingly encourage, facilitate (including by way of furnishing information) or knowingly encourage take any other action designed to facilitate any inquiries or proposals regarding any merger, share exchange, consolidation, sale of assets, sale of shares of capital stock (including by way of a tender offer) or similar transaction involving Target or any of its Subsidiaries that, if consummated, would constitute an Alternative Transaction (any of the submission foregoing inquiries or announcement of any inquiries, proposals or offers that constitute or would reasonably be expected being referred to lead to any Takeover herein as an “Alternative Proposal”), (ii) provide any non-public information concerning the Company or its Subsidiaries to any Person or group in connection with any Takeover Proposal, or engage participate in any discussions or negotiations with respect to any Takeover Proposalregarding an Alternative Transaction, (iii) approve, support, adopt, endorse enter into any agreement regarding any Alternative Transaction or recommend any Takeover Proposal, (iv) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or render a third party becoming an “interested stockholder” under, Section 203 of the Corporation Law) rights agreement inapplicable to any Person other than Acquiror and its Affiliates an Alternative Proposal or to any the transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve or agree to do any of the foregoingthereby. The Company Target shall, and shall cause each of the Subsidiaries and representatives of Target and its Subsidiaries and its and their respective Representatives to, (A) immediately cease and cause to be terminated any solicitation, encouragement, discussion all existing discussions or negotiation negotiations with any Person or groups that may be ongoing person conducted heretofore with respect to any Takeover Proposal Alternative Proposal, (B) request the prompt return or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person destruction of all confidential information previously furnished in connection therewith and (if anyC) that has heretofore executed a not terminate, waive, amend, release or modify any provision of any confidentiality or standstill agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover any Alternative Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company which it or any of its Subsidiaries or is a party, and shall enforce the provisions of any of its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of Notwithstanding the Company or its Subsidiaries shall enter into foregoing, if at any confidentiality agreement subsequent to time after the date hereof which prohibits but before approval of this Agreement by Target’s shareholders, (1) Target receives an unsolicited written Alternative Proposal that the Company or any of its Subsidiaries from providing to Acquiror the information required Target Board believes in good faith to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to bona fide, (2) such Alternative Proposal was not the contrary contained in this Agreement, the Company and its Representatives may in any event inform result of a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions violation of this Section 6.02. The Company 6.9, (3) the Target Board determines in good faith (after consultation with outside counsel and Acquiror hereby agree its financial advisor) that all standstill such Alternative Proposal constitutes or is reasonably likely to lead to a Superior Proposal and (4) the Target Board determines in good faith (after consultation with outside counsel) that the failure to take the actions referred to in clause (x) or (y) below would be reasonably likely to violate its fiduciary duties under applicable law, then Target may (and may authorize its Subsidiaries and representatives to) (x) furnish nonpublic information regarding Target and its Subsidiaries to the person making such Alternative Proposal (and its representatives) pursuant to a customary confidentiality agreement containing terms substantially similar provisions to, and no less favorable to Target than, those contained in the Confidentiality Agreement shall(provided, as of the date of this Agreement, terminate and be of no further force and effect solely that any nonpublic information provided to the extent necessary any person given such access shall have been previously provided to allow Acquiror to effect the transactions contemplated Buyer or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed provided to limit Buyer before or concurrently with the ability of Acquiror or any of its Affiliates time it is provided to take any action contemplated this Agreementsuch person), and (y) participate in discussions and negotiations with the person making such Alternative Proposal.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received a bona fide, written Takeover Proposal from any Person or group that did not result from a breach of this Section 6.02, and (ii) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or could reasonably be expected to result in a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, (A) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group making such Takeover Proposal; provided, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board Except as provided for in clause (ii) aboveotherwise below, together with (subject to neither the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither the Company Target Board nor any committee thereof shall may (ii)(A) withdraw or rescind (or modify or qualify in a any manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)Buyer) or any material modification thereto is first made public or sent or given refuse to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation recommend approval of this Agreement, the Offer and the Merger, and Agreement to Target’s shareholders or (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (oradopt, if earlierapprove, prior to recommend, endorse or otherwise declare advisable the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement adoption of any tender or exchange offer relating to securities of the Company Alternative Proposal (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of each such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of action set forth in this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (viiSection 6.9(b)(i) being referred to as an “Adverse Recommendation Change”).
, or (eii) cause or permit Target or any of its Subsidiaries to enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other agreement constituting or related to, or that is intended to or is reasonably likely to lead to, any Alternative Proposal (other than a confidentiality agreement permitted by Section 6.9(a)). Notwithstanding anything to the contrary in this Agreementforegoing, at any time prior to before obtaining approval of the Acceptance TimeMerger by Target’s shareholders, the Company Target Board may effect an Adverse Recommendation Change in response to a Superior Proposal may, if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Target Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action do so would be inconsistent with the exercise of reasonably likely to violate its fiduciary duties under applicable Lawlaw, taking into account all adjustments to the terms of this Agreement that may be offered by Buyer under this Section 6.9(b), make an Adverse Recommendation Change; provided, that Target may not make any Adverse Recommendation Change in response to an Alternative Proposal unless (x) the Company Target shall not have breached this Section 6.9 in any respect and (y):
(i) The Target Board determines in good faith (after consultation with its outside legal counsel and its financial advisorsadvisor) that the applicable Takeover such Alternative Proposal constitutes is a Superior Proposal and such Superior Proposal has been made and has not been withdrawn and continues to be a Superior Proposal after taking into account all adjustments to the terms of this Agreement that it intends may be offered by Buyer under this Section 6.9(b);
(ii) Target has given Buyer at least four business days’ prior written notice of its intention to accept or recommend take such action (which notice shall specify the material terms and conditions of any such Superior Proposal (including the identity of the party making such Superior Proposal, ) and has contemporaneously provided an unredacted copy of the relevant proposed transaction agreements with the person making such Superior Proposal; and
(yiii) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to Before effecting any such Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company Target has negotiated, and has caused its Subsidiaries and its and their respective Representatives torepresentatives to negotiate, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith with Buyer during such notice period to the four (4) Business Day period after such Notice of Intended Recommendation Change extent Buyer wishes to amend negotiate, to enable Buyer to revise the terms and conditions of this Agreement and the other agreements contemplated hereby such that the it would cause such Superior Proposal to no longer constitutes constitute a Superior Proposal and at Proposal. In the end event of any material change to the terms of such four (4) Business Day Superior Proposal, Target shall, in each case, be required to deliver to Buyer a new written notice, the notice period (as it may shall have recommenced and Target shall be extended pursuant required to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) comply with its obligations under this Section 6.9 with respect to such Superior new written notice.
(c) In addition to the obligations of Target under Sections 6.9(a) and (b), Target shall notify Buyer promptly (but in no event later than 24 hours) after receipt of any Alternative Proposal; provided, further, that in the event that there is or any material modification of or material amendment to any Alternative Proposal, or any request for nonpublic information relating to Target or any of its Subsidiaries or for access to the properties, books or records of Target or any Subsidiary by any person that informs the Target Board or any Subsidiary that it is considering making, or has made, an Alternative Proposal. Such notice to Buyer shall be made orally and in writing, and shall indicate the identity of the person making the Alternative Proposal or intending to make or considering making an Alternative Proposal or requesting nonpublic information or access to the books and records of Target or any Subsidiary, and the material terms of any such Alternative Proposal or modification or amendment to an Alternative Proposal. Target shall keep Buyer fully informed, on a current basis, of any material changes in the status and any material changes or modifications in the terms of any Superior such Alternative Proposal, indication or request. Target shall also promptly, and in any event within 24 hours, notify Buyer, orally and in writing, if it enters into discussions or negotiations concerning any Alternative Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance accordance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e6.9(a).
(gd) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere As used in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writ:
Appears in 2 contracts
Sources: Merger Agreement (Community Capital Corp /Sc/), Merger Agreement (Park Sterling Corp)
No Solicitation. (a) Until 10.2.1 Except as expressly permitted by this Clause 10.2, during the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 8.01, Relevant Period the Company and its subsidiaries shall not, and shall cause its Subsidiaries and its and their respective Representatives not to, directly or indirectly, and shall use their reasonable best endeavours to cause their Representatives not to:
(ia) solicitcontinue, initiateand shall procure the termination of, knowingly facilitate or knowingly encourage the submission or announcement of any inquiriessolicitation, proposals or offers that constitute or would reasonably be expected to lead to any Takeover Proposalknowing encouragement, (ii) provide any non-public information concerning the Company or its Subsidiaries to any Person or group in connection with any Takeover Proposal, or engage in any discussions or negotiations with respect to any Takeover Proposal, (iii) approve, support, adopt, endorse or recommend any Takeover Proposal, (iv) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve or agree to do any of the foregoing. The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with any Person or groups persons that may be ongoing with respect to any Takeover an Acquisition Proposal or potential Takeover Proposal. The and the Company shall promptly after within one (1) day of the date hereof, (i) terminate access to any third party to any data room containing confidential information of the Company and (ii) request the return or destruction of all confidential information provided to third parties prior to the date hereof request each Person (if any) that has heretofore executed a have, since 1 January 2018 entered into confidentiality agreement (other than with the Confidentiality Agreement) Company relating to a Takeover Proposal possible Acquisition Proposal;
(i) solicit, initiate or potential Takeover Proposal to promptly return to the Company knowingly facilitate or destroy all encourage (including by way of furnishing non-public documents and materials relating information) any inquiries regarding, or the making of any proposal or offer that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal;
(ii) engage in, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any other person any non-public information in connection with, or for the Takeover purpose of soliciting or knowingly encouraging or facilitating, an Acquisition Proposal or any proposal or offer that could reasonably be expected to lead to an Acquisition Proposal; or
(iii) enter into any letter of intent, implementation agreement, co-operation agreement, acquisition agreement, agreement in principle or similar agreement with respect to an Acquisition Proposal or any proposal or offer that could reasonably be expected to lead to an Acquisition Proposal; or
(c) waive or release any person from, forebear in the enforcement of, or amend any standstill agreement or any standstill provisions of any other Contract.
10.2.2 If at any time during the Relevant Period, the Company or any of its Subsidiaries or any of its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries subsidiaries or any of their respective Representatives to such Person receives an unsolicited bona fide written Acquisition Proposal from any person, which Acquisition Proposal was made or group renewed on or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to after the date hereof which prohibits the Company or any of its Subsidiaries this Agreement and did not result from a material breach of this Clause 10.2,
(a) after providing notice to Acquiror the information required to be provided to Acquiror Bidder pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreementclause 10.2.3, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect contact such person solely to clarify the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreementterms and conditions thereof; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.and
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received a bona fide, written Takeover Proposal from any Person or group that did not result from a breach of this Section 6.02, and (ii) the Company Board determines in good faith, after consultation with its financial advisor Financial Advisers and outside legal counsel, that such Takeover Acquisition Proposal constitutes or could is reasonably be expected likely to result in lead to a Superior ProposalProposal and the failure to take such action would be in breach of their fiduciary duties or would violate their obligations under the Act, then the Company and its Representatives may:
(i) furnish, upon receipt of pursuant to an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover ProposalAgreement, (A) furnish information (including non-public information) with respect to the Company and its Subsidiaries subsidiaries to the Person or group making person who has made such Takeover Acquisition Proposal; provided, provided that (x) the Company shall substantially concurrently shall, as promptly as practicable (and in any event within 24 hours), provide to Acquiror Bidder any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company and its subsidiaries that is provided to any person pursuant to this Clause 10.2.2 to the extent access to such information was not previously provided to Bidder or its Subsidiaries from any Person Representatives; and
(ii) engage in or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for otherwise participate in discussions or negotiations related with the person making such Acquisition Proposal for so long as the Company and its Representatives reasonably believe it may lead to a Superior Proposal.
10.2.3 During the Relevant Period, the Company shall: (i) promptly (and in any Takeover Proposalevent within 24 hours) notify Bidder if any inquiries, andproposals or offers with respect to an Acquisition Proposal are received by the Company or its subsidiaries, in connection with including the identity of any third party that makes such noticean inquiry proposal or offer, and subject provide to the existing terms Bidder a copy of confidentiality obligations any written Acquisition Proposal (including any proposed term sheet, letter of the Company as in place as intent, implementation agreement, co-operation agreement, acquisition agreement or similar agreement with respect thereto) and a summary of the date of this Agreement, provide the any material unwritten terms and conditions thereof; (ii) keep Bidder reasonably informed of any such inquirymaterial developments, proposal, offer discussions or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed negotiations regarding any Acquisition Proposal permitted by this Agreement on a prompt basis (and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any eventevent within 24 hours of such material development, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals discussion or offers, including proposed agreements, negotiation); and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect respond promptly to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation reasonable requests made by Bidder in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days light of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”)information.
(e) Notwithstanding anything to the contrary 10.2.4 Nothing in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable Law, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept Clause 10.2 or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law.
(f) Nothing contained elsewhere in this Agreement shall prohibit the Company or the Company Board from (i) taking and disclosing to the Company’s stockholders Company Shareholders a position with respect to a tender offer contemplated by a third party Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act, including any “stop, look and listen” communication pursuant to Rules 14d-9 and 14e-2(aRule 14d-9(f) promulgated under the Exchange Act Act, or from issuing (ii) making any disclosure to the Company Shareholders that is required by applicable Law; provided that any such disclosure (other than a “stop, look and listen” communication, as defined communication made in compliance with Rule 14d-9(f)) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an will be deemed to be a Company Adverse Change Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations Board expressly reaffirms the Company Board Recommendation in Section 6.02(e)such disclosure; provided further that this Clause 10.2.4 will not be deemed to permit the Company Board to make a Company Adverse Change Recommendation, except to the extent permitted by Clause 10.3.2.
(g) Notwithstanding anything to 10.2.5 The Company agrees that in the contrary contained in event any of its subsidiaries or any Representative of the Company or its subsidiaries takes any action which, if taken by the Company, would constitute a breach of this Section 6.02 or elsewhere in this AgreementClause 10.2, the Company Board may, at any time prior shall be deemed to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date be in breach of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writClause 10.2.
Appears in 2 contracts
Sources: Implementation Agreement, Implementation Agreement (Nightstar Therapeutics PLC)
No Solicitation. From and after the date hereof until the Expiration Date, the Shareholder, solely in his, her or its capacity as a shareholder of Seller, shall not, nor shall such Shareholder authorize any partner, officer, director, advisor or representative of, such Shareholder or any of his, her or its affiliates to (and, to the extent applicable to the Shareholder, such Shareholder shall use reasonable best efforts to prohibit any of his, her or its representatives or affiliates to), (a) Until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 8.01initiate, the Company shall not, and shall cause its Subsidiaries and its and their respective Representatives not to, directly or indirectly, (i) solicit, initiate, knowingly facilitate induce or knowingly encourage the submission or announcement of any inquiries, proposals or offers that constitute or would reasonably be expected to lead to any Takeover Proposal, (ii) provide any non-public information concerning the Company or its Subsidiaries to any Person or group in connection with any Takeover Proposalencourage, or engage in any discussions or negotiations with respect to any Takeover Proposal, (iii) approve, support, adopt, endorse or recommend any Takeover Proposal, (iv) take any action to make facilitate the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction undermaking of, or a third party becoming an “interested stockholder” under, Section 203 of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve or agree to do any of the foregoing. The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with any Person or groups that may be ongoing with respect to any Takeover Proposal or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company or any of its Subsidiaries or any of its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received a bona fide, written Takeover Proposal from any Person or group that did not result from a breach of this Section 6.02, and (ii) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or could reasonably be expected to result in a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, (A) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group making such Takeover Proposal; provided, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, offer or proposal or offer that constitutes which constitutes, or could reasonably be expected to lead to to, an Acquisition Proposal, (b) participate in any Takeover discussions or negotiations regarding any Acquisition Proposal, or furnish, or otherwise afford access, to any initial request for non-public person (other than Buyer) any information concerning the Company or data with respect to Seller or any of its Subsidiaries from or otherwise relating to an Acquisition Proposal, (c) enter into any Person agreement, agreement in principle or group who has made letter of intent with respect to an Acquisition Proposal, (d) solicit proxies or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act) with respect to an Acquisition Proposal (other than the Merger Agreement) or otherwise encourage or assist any party in taking or planning any action that would reasonably be expected compete with, restrain or otherwise serve to make any Takeover interfere with or inhibit the timely consummation of the Merger in accordance with the terms of the Merger Agreement, (e) initiate a shareholders’ vote or action by consent of Seller’s shareholders with respect to an Acquisition Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date (f) except by reason of this Agreement, provide the material terms and conditions become a member of any a “group” (as such inquiry, proposal, offer or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis term is used in Section 13(d) of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24Exchange Act) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to voting securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) Seller that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (takes any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as support of an “Adverse Recommendation Change”)Acquisition Proposal.
(e) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable Law, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e).
(g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writ
Appears in 2 contracts
Sources: Voting Agreement (Wesbanco Inc), Voting Agreement (Fidelity Bancorp Inc)
No Solicitation. (a) Until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 8.01, the The Company shall not, and shall cause its Subsidiaries not to, and shall not authorize or permit its and its Subsidiaries’ Representatives to, and their respective shall give written instructions to all such Representatives not to, directly or indirectly, (i) solicit, initiate, seek or knowingly take any action to facilitate or knowingly encourage the making, submission or announcement of any inquiriesTakeover Proposal, proposals or offers any inquiry, discussion, request, offer or proposal that constitute or would could reasonably be expected to lead to any Takeover Proposal, or, subject to Section 5.04(b): (iii) provide any non-public information concerning the Company or its Subsidiaries to any Person or group in connection with any Takeover Proposal, conduct or engage in any discussions or negotiations with, disclose any non-public information relating to the Company or any of its Subsidiaries to, afford access to the business, properties, assets, books, or records of the Company or any of its Subsidiaries to, or knowingly assist, participate in, facilitate, or encourage any effort by, any Person in connection with or in response to, or that could reasonably be expected to lead to, any Takeover Proposal; (ii) except where the Company Board determines that the failure to do so would be inconsistent with its fiduciary duties, (A) amend or grant any waiver or release under any standstill or similar agreement with respect to any Takeover Proposalclass of Equity Securities of the Company or any of its Subsidiaries, or (iiiB) approve, support, adopt, endorse or recommend any Takeover Proposal, (iv) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including approve any transaction under, or a third party any Person becoming an “interested stockholder” under, Section 203 of the Corporation LawDGCL (other than the Merger, the Transactions, Parent and Merger Sub); or (iii) inapplicable adopt, approve or enter into any agreement in principle, letter of intent, term sheet, memorandum of understanding, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement, or other Contract providing for or relating to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by Takeover Proposal (each, a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve or agree to do any of the foregoing“Company Acquisition Agreement”). The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, to cease immediately cease and cause to be terminated terminated, and shall not authorize or permit any solicitationof its or their Representatives to continue, encouragementand shall give written instructions to all such Representatives not to continue, discussion any and all existing activities, discussions, negotiations or negotiation solicitations, if any, with any Person (other than Parent or groups that may be ongoing Merger Sub) with respect to any Takeover Proposal or potential Takeover Proposal. The Company and shall promptly after the date hereof request each use its Commercially Reasonable Efforts to cause any such Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality AgreementParent or Merger Sub) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all and its Representatives in possession of non-public documents and materials relating to the Takeover Proposal or to information in respect of the Company or any of its Subsidiaries that was furnished by or on behalf of the Company and its Subsidiaries to return or destroy (and confirm destruction of) all such information and terminate the access of any such Person (other than Parent or Merger Sub) and its Representatives to any electronic data room maintained by or on behalf of the Company or any of its and their respective businessesSubsidiaries.
(b) Notwithstanding Section 5.04(a), operations or affairs heretofore furnished by prior to the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None receipt of the Requisite Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits Vote, if the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in receives any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a bona fide written unsolicited Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received a bona fide, written Takeover Proposal from any Person or group that did not result from a material breach of this Section 6.025.04, the Company Board, directly or indirectly through any Representative, may, subject to Section 5.04(c): (i) contact the Person who made such bona fide written unsolicited Takeover Proposal for the purpose of clarifying such Takeover Proposal and the material terms and conditions and likelihood of consummation thereof in order to determine whether such Takeover Proposal constitutes or would reasonably be expected to result in a Superior Proposal and (ii) if the Company Board determines in good faith, after consultation with its financial advisor and outside legal counseland financial advisors, that such Takeover Proposal constitutes or could would reasonably be expected to result in a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, thereafter (A) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the such Person or group making such Takeover Proposal; provided, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning relating to the Company or any of its Subsidiaries pursuant to an executed confidentiality agreement that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and constitutes an Acceptable Confidentiality Agreement; (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, make a Company Adverse Recommendation Change and (C) take any action that prior to or concurrently with any court of competent jurisdiction orders the Company taking such actions as described to take (which order remains unstayed), but in each case referred to in the foregoing clauses (A) and/or through (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger SubC), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, only if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Board determines in good faith (faith, after consultation with its outside legal counsel) and financial advisors, that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable Law. Nothing contained herein shall prevent the Company Board from disclosing to the Company’s stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act with regard to a Takeover Proposal, if the Company determines that failure to disclose such position would constitute a violation of applicable Law.
(xc) The Company Board shall not take any of the actions referred to in clauses (i) or (ii) of Section 5.04(b) unless the Company shall have delivered to Parent at least five Business Days’ prior written notice advising Parent that it intends to take such action and stating the factors taken into account by the Company Board in determining that any such Takeover Proposal constitutes or would reasonably be expected to result in a Superior Proposal. The Company shall notify Parent promptly (but in no event later than 24 hours after Knowledge of the Company’s (or any of its Subsidiaries or any of its or their Representatives) receipt ) of any Takeover Proposal, any inquiry or request that could reasonably be expected to lead to a Takeover Proposal, any request for non-public information relating to the Company or any of its Subsidiaries or for access to the business, properties, assets, books, or records of the Company or any of its Subsidiaries by any Person (other than Parent or Merger Sub). In such notice, the Company shall identify the Person making, and details of the material terms and conditions of, any such Takeover Proposal, indication or request. The Company shall keep Parent reasonably informed, on a prompt basis, of the status and material terms of any such Takeover Proposal, indication or request, including any material amendments or proposed amendments as to price and other material terms thereof. The Company shall promptly provide Parent with a list of any non-public information concerning the Company’s and any of its Subsidiary’s business, present or future performance, financial condition, or results of operations, provided to any Person, and, to the extent such information has not been previously provided to Parent, copies of such information. The Company will not, and will not cause or permit any Subsidiary of the Company to, enter into any Contract with any Person, or otherwise take any action, that would prohibit or restrict in any way the Company or such Subsidiary from providing any information to Parent hereunder.
(d) Except as expressly permitted by this Section 5.04, the Company Board shall not effect a Company Adverse Recommendation Change or enter into (or permit any Subsidiary to enter into) a Company Acquisition Agreement. Notwithstanding the foregoing, at any time prior to the receipt of the Requisite Company Vote, the Company Board may effect a Company Adverse Recommendation Change or enter into (or permit any Subsidiary to enter into) a Company Acquisition Agreement, if: (i) the Company Board determines promptly notifies Parent, in good faith writing, at least five Business Days (after consultation the “Superior Proposal Notice Period”) before making a Company Adverse Recommendation Change or entering into (or causing a Subsidiary to enter into) a Company Acquisition Agreement, of its intention to take such action with its outside legal counsel and financial advisors) respect to a Superior Proposal, which notice shall state expressly that the applicable Company has received a Takeover Proposal constitutes Proposal, that the Company Board intends to declare a Superior Proposal and that it the Company Board intends to accept effect a Company Adverse Recommendation Change and/or the Company intends to enter into (or recommend such Superior Proposal, permit any Subsidiary to enter into) a Company Acquisition Agreement; (yii) the Company shall have provided prior written attaches to such notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy most current version of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (zwhich version shall be updated promptly after material amendment thereto) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that identity of the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to Person making such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(ciii) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, during the Superior Proposal Notice Period, negotiate with Parent in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides to make such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered adjustments in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e).
(g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this AgreementAgreement so that such Takeover Proposal ceases to constitute a Superior Proposal, which eventif Parent, development or change in circumstanceits discretion, or proposes to make such adjustments (it being agreed that in the event that, after commencement of the Superior Proposal Notice Period, there is any material consequences thereof, becomes known revision to the Company Board prior terms of a Superior Proposal, including, any revision in price, the Superior Proposal Notice Period shall be extended, if applicable, to ensure that at least five Business Days remain in the Superior Proposal Notice Period subsequent to the Acceptance Time (time the Company notifies Parent of any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”revision); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counseland financial advisors, that, that such Takeover Proposal continues to constitute a Superior Proposal after taking into account any adjustments made by Parent during the Superior Proposal Notice Period in light the terms and conditions of such Intervening Event, the this Agreement and that failure to make an a Company Adverse Recommendation Change or enter into (or permit any Subsidiary to enter into) a Company Acquisition Agreement would continue to be inconsistent with the exercise of its fiduciary duties under applicable Law; .
(ve) no Notwithstanding anything to the contrary in the foregoing, in response to an Intervening Event that has occurred after the date of this Agreement but prior to the receipt of the Requisite Company Vote, the Company Board may effect a Company Adverse Recommendation Change has been made for three if: (3i) prior to effecting the Company Adverse Recommendation Change, the Company promptly notifies Parent, in writing, at least five Business Days (the “Intervening Event Notice Period”) before taking such action of its intent to consider such action (which notice shall not, by itself, constitute a Company Adverse Recommendation Change), and which notice shall include a reasonably detailed description of the underlying facts giving rise to, and the reasons for taking, such action; (ii) the Company shall, and shall cause its Representatives to, during the Intervening Event Notice Period, negotiate with Parent in good faith to make such adjustments in the terms and conditions of this Agreement so that the underlying facts giving rise to, and the reasons for taking such action, ceases to constitute an Intervening Event, if Parent, in its discretion, proposes to make such adjustments (it being agreed that in the event that, after receipt commencement of the Intervening Event Notice Period, there is any material development in an Intervening Event, the Intervening Event Notice Period shall be extended, if applicable, to ensure that at least five Business Days remain in the Intervening Event Notice Period subsequent to the time the Company notifies Parent of any such material development); and (iii) the Company Board determines in good faith, after consultation with its outside legal and financial advisors, that the failure to effect such Company Adverse Recommendation Change, after taking into account any adjustments made by Acquiror of a writParent during the Intervening Event Notice Period, would continue to be inconsistent with its fiduciary duties under applicable Law. The Company acknowledges and hereby agrees that any Company Adverse Recommendation Change effected (or proposed to be effected) in response to or in connection with any Takeover Proposal may be made solely and exclusively pursuant to Section 5.04(d) only, and may not be made pursuant to this Section 5.04(e), and any Company Adverse Recommendation Change may only be made pursuant to this Section 5.04 and for no other reason.
Appears in 2 contracts
Sources: Merger Agreement (Ormat Technologies, Inc.), Merger Agreement (Us Geothermal Inc)
No Solicitation. (a) Until a. During the earlier of the Effective Time and the valid termination term of this Agreement pursuant to Section 8.01letter agreement, the Company shall Stockholder Party hereby agrees that it will not, and shall it will cause its Subsidiaries and its and their respective Representatives (including any investment or operating professionals of TPG Capital and/or TPG Growth) not to, directly or indirectly, (i) solicit, initiate, knowingly facilitate seek or knowingly encourage the submission or announcement facilitate or take any action to solicit, initiate or seek or knowingly encourage or facilitate any inquiry, expression of any inquiriesinterest, proposals proposal or offers offer that constitute constitutes or would reasonably be expected to lead to any Takeover an Acquisition Proposal, (ii) provide enter into, participate in, maintain or continue any discussions or negotiations relating to, any Acquisition Proposal with any Person other than Parent or Merger Sub, or (iii) furnish to any Person other than Parent or Merger Sub any non-public information concerning that the Company Stockholder Party or Representative believes or should reasonably expect would be used for the purposes of formulating any Acquisition Proposal.
b. Without limiting the generality of Section 4(a), during the term of this letter agreement, the Stockholder Party hereby agrees that it will not, and it will cause its Subsidiaries to any Person or group in connection with any Takeover Proposal, or engage in any discussions or negotiations with respect to any Takeover Proposal, (iii) approve, support, adopt, endorse or recommend any Takeover Proposal, (iv) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation Representatives (including any transaction underinvestment or operating professionals of TPG Capital and/or TPG Growth) not to, directly or indirectly, (a) solicit proxies or become a third party becoming an “interested stockholder” underparticipant in a solicitation (as such terms are defined in Rule 14a-1 under the Exchange Act (disregarding Rule 14a-1(l)(2)(iv) thereunder), Section 203 including any otherwise exempt solicitation pursuant to Rule 14a-2(b) under the Exchange Act), in opposition to or competition with the consummation of the Corporation Law) inapplicable Offer or the Merger or otherwise encourage, advise or assist any party in taking or planning any action which would reasonably be expected to any Person other than Acquiror and its Affiliates compete, impede or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate interfere with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve or agree to do any the consummation of the foregoing. The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion Offer or negotiation with any Person or groups that may be ongoing with respect to any Takeover Proposal or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company or any of its Subsidiaries or any of its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives Merger in accordance with the terms of the Merger Agreement, (b) directly or indirectly encourage, initiate, or cooperate in a stockholder’s vote or action by consent of the Company’s stockholders (whether by means of voting shares of capital stock or executing any written consent thereof or otherwise) in opposition to or in competition with the consummation of the Offer or the Merger, (c) become a member of a “group” (as such confidentiality agreement. None term is used in Rule 13d-5 under the Exchange Act) with respect to any voting securities of the Company for the purpose of opposing or competing with the consummation of the Offer or the Merger or (d) unless required by applicable Law, make any press release, public announcement or other non-confidential communication with respect to the business or affairs of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality AgreementParent, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received a bona fide, written Takeover Proposal from any Person or group that did not result from a breach of this Section 6.02, and (ii) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or could reasonably be expected to result in a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, (A) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group making such Takeover Proposal; provided, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreementletter agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable Law, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements transactions contemplated hereby such that and thereby, without the Superior Proposal no longer constitutes a Superior Proposal and at the end prior written consent of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable LawParent.
c. NOTWITHSTANDING ANYTHING CONTAINED IN THIS LETTER AGREEMENT TO THE CONTRARY, NOTHING IN THIS LETTER AGREEMENT SHALL IN ANY WAY (fA) Nothing contained in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(aRESTRICT OR LIMIT ANY DESIGNEE OR REPRESENTATIVE OF THE STOCKHOLDER PARTY WHO IS A DIRECTOR OR OFFICER OF THE COMPANY FROM TAKING (OR OMITTING TO TAKE) promulgated under the Exchange Act or from issuing a “stopANY ACTION IN HIS OR HER CAPACITY AS A DIRECTOR OR OFFICER OF THE COMPANY TAKEN IN ORDER TO FULFILL HIS OR HER FIDUCIARY OBLIGATIONS, look and listen” communicationOR (B) RESTRICT OR LIMIT (OR REQUIRE THE STOCKHOLDER PARTY TO ATTEMPT TO RESTRICT OR LIMIT) ANY DESIGNEE OR REPRESENTATIVE OF SUCH STOCKHOLDER PARTY WHO IS A DIRECTOR OR OFFICER OF THE COMPANY FROM ACTING IN SUCH CAPACITY OR VOTING IN SUCH CAPACITY IN THE GOOD FAITH EXERCISE OF HIS OR HER FIDUCIARY DUTIES. IT IS EXPRESSLY UNDERSTOOD THAT THE STOCKHOLDER PARTY IS NOT MAKING ANY AGREEMENT OR UNDERSTANDING HEREIN IN HIS, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewithHER OR ITS CAPACITY AS, pending disclosure of its position thereunderOR ON BEHALF OF ANY DESIGNEE OR REPRESENTATIVE OF THE STOCKHOLDER PARTY WHO IS, and the issuance of any such communication shall notA DIRECTOR OR OFFICER OF THE COMPANY. NOTWITHSTANDING THE FOREGOING, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e)THE STOCKHOLDER PARTY ACKNOWLEDGES THAT THE DIRECTORS AND OFFICERS OF THE COMPANY ARE RESTRICTED IN THE MANNER SET FORTH IN THE MERGER AGREEMENT.
(g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writ
Appears in 2 contracts
Sources: Merger Agreement (Reckitt Benckiser Group PLC), Merger Agreement (Reckitt Benckiser Group PLC)
No Solicitation. (a) Until Except as expressly permitted by Section 8.3(b), from and after the date of this Agreement until the earlier of the Effective Time and or the valid termination of date, if any, on which this Agreement is terminated pursuant to Section 8.0110.1 and except as otherwise provided for in this Agreement, the Company shall not, and shall cause its Subsidiaries not to, and shall direct its and their respective Representatives not to, directly or indirectlyindirectly through another Person, (i) solicit, initiate, initiate or knowingly facilitate or knowingly encourage the submission any Competing Proposal, (ii) participate in any negotiations regarding, or announcement of furnish to any inquiriesPerson any material non-public information with respect to, proposals any Competing Proposal or offers any inquiry or proposal that constitute or would reasonably be expected to lead to any Takeover a Competing Proposal, (iiiii) provide engage in discussions with any non-public information concerning Person with respect to any Competing Proposal or any inquiry or proposal that would reasonably be expected to lead to a Competing Proposal, (iv) approve or recommend any Competing Proposal, (v) adopt, enter into, or propose publicly to adopt or enter into, any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, alliance agreement, partnership agreement or other similar Contract relating to any Competing Proposal or (vi) terminate, waive, amend or modify any provision of, or grant permission under, any standstill, confidentiality agreement or similar Contract to which the Company or any of its Subsidiaries is a party; provided, however, that the Company or its Subsidiaries may waive, if requested by the applicable counterparty, rights under any standstill, confidentiality agreement or similar Contract to which the Company or any Person or group in connection with any Takeover Proposal, or engage in any discussions or negotiations with respect of its Subsidiaries is a party to any Takeover Proposal, (iii) approve, support, adopt, endorse or recommend any Takeover Proposal, (iv) take any action the extent necessary to enable such counterparty to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Competing Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve or agree to do any of the foregoing. The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion all existing discussions or negotiation negotiations with any Person or groups that may be ongoing conducted prior to the execution of this Agreement with respect to any Takeover Proposal Competing Proposal, request the prompt return or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating destruction of all confidential information previously furnished to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company or any of its Subsidiaries or any of its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in and immediately terminate all physical and electronic data room access previously granted to any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received a bona fide, written Takeover Proposal from any Person or group that did not result from a breach of this Section 6.02, and (ii) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or could reasonably be expected to result in a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposalits Representatives. Subject to Section 8.3(b), (A) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group making such Takeover Proposal; provided, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither neither the Company Board nor any committee thereof shall directly or indirectly (i) withdraw or rescind (or change, amend, modify or qualify in a any manner adverse to Acquiror Parent or Merger Sub), or publicly propose to withdraw or rescind (or change, amend, modify or qualify in a manner adverse to Acquiror Parent or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b)Recommendation, (ii) approve approve, adopt or recommend the adoption ofrecommend, or publicly propose to approveapprove or recommend, declare the advisability of or recommend the adoption of, any Takeover a Competing Proposal, (iii) cause or permit the Company fail to execute or enter intoannounce publicly, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any within ten Business Days after a tender offer or exchange offer relating to securities of the Company Shares (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Companyhas been commenced, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include that the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and offer, or (Biv) reaffirming its recommendation of this Agreement, take any other action or make any other proposal or public statement inconsistent with the Offer and the Merger Company Recommendation (any action described in clause clauses (i), (ii), (iii), ) through (iv), (v), (vi) or (vii) being referred to as an a “Adverse Recommendation ChangeChange of Recommendation”).
(eb) Notwithstanding anything to the contrary limitations set forth in this AgreementSection 8.3(a), if at any time after the date of this Agreement and prior to the Acceptance TimeOffer Closing, the Company Board may effect an Adverse Recommendation Change in response to receives a Superior Competing Proposal if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) that the Company Board determines in good faith (after consultation with its outside legal counselcounsel and financial advisor) that constitutes or would reasonably be expected to result in a Superior Proposal, and which Competing Proposal did not result from a breach of Section 8.3(a), then the failure Company may, subject to take compliance with this Section 8.3 in all material respects, (i) furnish non-public information to the third party making such action would be inconsistent Competing Proposal or (ii) engage in discussions or negotiations with the exercise of its fiduciary duties under applicable Lawthird party with respect to the Competing Proposal, in each case if, and only if, (x) the Company provides notice to Parent of its intent to furnish information to or enter into discussions with such person in accordance with this Section 8.3(b), (y) the Company enters into a confidentiality agreement with such Person that contains confidentiality and standstill provisions that are determined in good faith by the Company to be no less favorable in the aggregate to the Company than those contained in the Confidentiality Agreement (it being understood that such confidentiality agreement and any related agreements shall not include any provision calling for any exclusive right to negotiate with such Person or having the effect of prohibiting the Company from satisfying its obligations under this Agreement) (any such agreement, an “Acceptable Confidentiality Agreement”), and the Company promptly thereafter (but in any event within 24 hours) provides to Parent a copy of any such Acceptable Confidentiality Agreement, and (z) the Company provides to Parent any material non-public information concerning the Company or its Subsidiaries that is provided to such Person (or its Representatives) to the extent such information has not previously been provided to Parent prior to or substantially concurrent with the time it is provided to such Person (or its Representatives).
(c) Notwithstanding anything in this Agreement to the contrary, at any time prior to the Offer Closing, the Company Board may, if the Company receives a Competing Proposal after the execution of this Agreement that did not result from a breach of Section 8.3(a) and that the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisorsadvisor) that the applicable Takeover Proposal constitutes would, if consummated, constitute a Superior Proposal and after giving effect to all of the adjustments to the terms of this Agreement that it intends have been offered in writing by Parent in accordance with this Section 8.3(c), (i) effect a Change of Recommendation or (ii) terminate this Agreement in accordance with Section 10.1(g) to accept or recommend enter into a definitive agreement with respect to such Superior Proposal, in each case only if the Company Board determines in good faith (yafter consultation with its outside counsel and financial advisor) that the failure to do so would be inconsistent with its fiduciary duties under applicable Law; provided, however, that the Company Board may not effect a Change of Recommendation pursuant to the foregoing clause (i) or terminate this Agreement pursuant to the foregoing clause (ii) unless (A) the Company shall have provided prior written notice (a “Company Notice”) to AcquirorParent, at least four (4) three Business Days prior to effecting any Adverse in advance of such Change of Recommendation Changeor such termination, of its intent intention to take effect a Change of Recommendation in response to such actionSuperior Proposal or terminate this Agreement to enter into a definitive agreement with respect to such Superior Proposal, specifying which Company Notice shall specify (1) the reasons therefor identity of the party making such Superior Proposal, (2) the material terms and including conditions of such Superior Proposal and (3) a copy of the most current version of any proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (xdefinitive agreement(s) with respect to such Superior Proposal; providedProposal and (B) at or after 5:00 p.m., furtherNew York City time, on the third Business Day following the day on which Parent and Merger Sub receive the Company Notice (it being understood that in for purposes of calculating such three Business Days, the event that there is any material amendment to first Business Day will be the terms of any Superior Proposal (provided, that any revision to first Business Day after the amount, form or mix of consideration the Company’s stockholders would receive as a result date of such Superior Proposal shall be deemed to be a material amendmentreceipt), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined reaffirms in good faith (after consultation with its outside legal counsel and financial advisorsadvisor) that (1) such Competing Proposal continues to constitute a Superior Proposal and (2) the failure to make a Change of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) as a result thereof would be inconsistent with the exercise of its fiduciary duties under applicable Law.
Law (f) Nothing contained it being understood and agreed that any change in the consideration payable with respect thereto or any other material amendment to the terms and conditions of such Superior Proposal shall require a new Company Notice and a new two Business Day period (which two Business Day period shall be calculated in the same manner as the initial three Business Day period)). In determining whether to make a Change of Recommendation or terminate this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, with Section 10.1(g) and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e).
(g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreement8.3(c), the Company Board may, at will take into account any time prior changes to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date terms of this Agreement as may be proposed in writing by Parent by 5:00 p.m., New York City time, on the last Business Day of the applicable three Business Day period or two Business Day period, as applicable, in response to a material eventCompany Notice, material development or material change in circumstances that was not known and if requested by Parent, the Company or the Company Board as of the date of this Agreement shall, and does not relate to shall cause its Representatives to, engage in good faith negotiations with Parent and its Representatives regarding any Takeover Proposal or adjustments in the terms and conditions of this Agreement, which event, development or change Agreement proposed by Parent in circumstance, or response to a Company Notice.
(d) The Company will (i) keep Parent reasonably informed in all material respects and on a reasonably current basis of the status and developments (including any material consequences thereof, becomes known change to the Company Board prior terms thereof) of any Competing Proposal and (ii) provide to the Acceptance Time (Parent within 24 hours after receipt or delivery thereof all drafts of agreements relating to any such Competing Proposal and any written proposals containing any material event, material development terms of a Competing Proposal or material change in circumstances unrelated a counterproposal to a Takeover Proposal being referred to as an “Intervening Event”); providedCompeting Proposal, however that in no event shall each case exchanged between any of the following constituteCompany or any of its Subsidiaries or any of its or their Representatives, on the one hand, and the Person making any such Competing Proposal or any of its Affiliates or any of their Representatives, on the other hand. No notice or communication made by the Company to Parent pursuant to this Section 8.3(d) will be taken into account deemed to be a Company Notice unless such notice or communication complies with the provisions of Section 8.3(c).
(e) As used in determining the existence of, an Intervening Event: this Agreement,
(xi) the fact that the Company meets term “Competing Proposal” means any written bona fide proposal made by a third party (other than Parent or exceeds Merger Sub or any internal of their respective Subsidiaries) relating to any direct or published projectionsindirect (A) acquisition, forecastspurchase, estimates sale, license, lease, contribution or predictions disposition, directly or indirectly (including by way of revenuemerger, earnings consolidation, share exchange, other business combination, partnership, joint venture, sale of capital stock of or other financial or operating metrics for any period, or changes after the date of this Agreement equity interests in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting a Subsidiary of the Company Board at which it will consider and determine whether or otherwise) to such Intervening Event may require Person or group of Persons (or Affiliates thereof) of any business or assets of the Company to make an Adverse Recommendation Changeor its Subsidiaries representing or generating 15% or more of the consolidated revenues, with a written notice specifying the date and time net income or assets of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines and its Subsidiaries, taken as a whole, (B) issuance, sale or other disposition to such Person or group of Persons (or Affiliates thereof) of securities (or options, rights or warrants to purchase, or securities convertible into or exchangeable for, such securities) representing 15% or more of the combined voting power of the Shares, (C) any tender offer or exchange offer that if consummated would result in good faithany Person beneficially owning 15% or more of the combined voting power of the Shares, after consultation with (D) any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its financial advisor and outside legal counsel, thatSubsidiaries in which the other party thereto or its shareholders will own 15% or more of the combined voting power of the parent entity resulting from any such transaction or (E) combination of the foregoing, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Laweach case other than Transactions; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writand
Appears in 2 contracts
Sources: Merger Agreement (Pep Boys Manny Moe & Jack), Merger Agreement (Icahn Enterprises Holdings L.P.)
No Solicitation. (aA) Until During the earlier of period beginning on the Effective Time Date and continuing until the valid Closing or, if earlier, the termination of this Agreement pursuant to in accordance with Section 8.015.1, Acquirer agrees that neither it, the Company shall notOperating Partnership nor any Subsidiary shall, and that it shall cause its Subsidiaries and direct its and their respective Representatives not to, directly or indirectly, (i) solicit, participate in, initiate, knowingly facilitate or encourage (including by way of furnishing information), or knowingly encourage take any other action designed or reasonably likely to facilitate or encourage, any inquiries or the submission or announcement making of any inquiriesproposal that constitutes, proposals or offers that constitute or would may reasonably be expected to lead to to, any Takeover Proposal, (ii) provide any non-public information concerning the Company or its Subsidiaries to any Person or group in connection with any Takeover Proposal, or engage in any discussions or negotiations with respect to any Takeover Proposal, (iii) approve, support, adopt, endorse or recommend any Takeover Proposal, (iv) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation Competing Proposal (including by way of making any transaction under, or a third party becoming an “interested stockholder” under, Section 203 public announcement of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve or agree intention to do any of the foregoing. The Company shall), and shall cause its Subsidiaries and its and their respective Representatives to(ii) participate in any discussions or negotiations (including by way of furnishing information) regarding any Competing Proposal, immediately cease and cause to be terminated or (iii) enter into any solicitation, encouragement, discussion agreement (or negotiation with any Person or groups that may be ongoing agreement in principle) with respect to any Takeover Proposal or potential Takeover a Competing Proposal. The Company For purposes of this Agreement, a “Competing Proposal” shall promptly after the date hereof request each mean any inquiry, proposal, offer or expression of interest by any Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) Trade Street Capital and its Affiliates, whether in one transaction or a series of related transactions, relating to any (a) merger, consolidation, share exchange, business combination or similar transaction involving Acquirer, the Operating Partnership or any Subsidiary, (b) sale, exchange, transfer or other disposition, directly or indirectly, by merger, consolidation, share exchange or otherwise, of any assets of Acquirer, the Operating Partnership or any Subsidiary representing 15% or more of the consolidated total assets of Acquirer, the Operating Partnership and their Subsidiaries to a Takeover Proposal single purchaser or potential Takeover Proposal group of related purchasers, (c) issuance, sale or other disposition (including by way of merger, consolidation, share exchange or any similar transaction), other than to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company Trade Street Capital or any of its Subsidiaries Affiliates, of securities (or any options, rights or warrants to purchase, or securities convertible into or redeemable for, such securities, including FMP Units) representing 15% or more of its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance votes associated with the terms outstanding Common Stock of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance TimeAcquirer, (id) the Company has received a bona fide, written Takeover Proposal from tender offer or exchange offer in which any Person or group that did not result from a breach “group” (as such term is defined under the Securities Exchange Act of this Section 6.021934, and as amended (iithe “Exchange Act”)) shall acquire “beneficial ownership” (as such term is defined in Rule 13d 3 under the Company Board determines in good faithExchange Act), after consultation with its financial advisor and outside legal counselor the right to acquire beneficial ownership, that such Takeover Proposal constitutes of 15% or could reasonably be expected to result in a Superior Proposal, then more of the Company may, upon receipt outstanding shares of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposalany class of voting securities of Acquirer, (Ae) furnish information (including non-public information) recapitalization, restructuring, liquidation, dissolution or other similar type of transaction with respect to the Company and its Subsidiaries to the Acquirer in which a Person or group making such Takeover Proposal; provided, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company other than Trade Street Capital or its Subsidiaries that is provided to Affiliates shall acquire beneficial ownership of 15% or more of the outstanding shares of any class of voting securities of Acquirer or (or access f) transaction which is given to) similar in form, substance or purpose to any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposalforegoing transactions; provided, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, term “Competing Proposal” shall not include the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of transactions contemplated by this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable Law, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e).
(g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writ
Appears in 2 contracts
Sources: Contribution Agreement (Trade Street Residential, Inc.), Contribution Agreement (Trade Street Residential, Inc.)
No Solicitation. (a) Until From and after the date of this Agreement until the earlier of the Effective Time and the valid or termination of this Agreement pursuant to Section 8.01its terms, the Company Seller shall not, and shall cause its Subsidiaries and its and their respective Representatives not to, directly or indirectly, through any officer, director, employee, financial advisor, representative or agent of such party (i) solicit, initiate, knowingly facilitate or knowingly encourage the submission any inquiries or announcement of any inquiriesproposals that constitute, proposals or offers that constitute or would could reasonably be expected to lead to, a proposal or offer for a merger, consolidation, business combination, sale of substantial assets (other than the sale of Seller's products or used equipment in the ordinary course of business), sale of shares of capital stock (including without limitation by way of a tender offer but excluding sales pursuant to existing employee and director stock plans) or similar transaction involving Seller or any Takeover of its Subsidiaries, other than the transactions contemplated by this Agreement (any of the foregoing inquiries or proposals being referred to in this Agreement as an "Acquisition Proposal"), (ii) engage in negotiations or discussions concerning, or provide any non-public information concerning the Company or its Subsidiaries to any Person person or group in connection with entity relating to, any Takeover Acquisition Proposal, or engage in any discussions or negotiations with respect to any Takeover Proposal, (iii) approve, support, adopt, endorse agree to or recommend any Takeover Proposal, (iv) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve or agree to do any of the foregoing. The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with any Person or groups that may be ongoing with respect to any Takeover Proposal or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company or any of its Subsidiaries or any of its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received a bona fide, written Takeover Proposal from any Person or group that did not result from a breach of this Section 6.02, and (ii) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or could reasonably be expected to result in a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, (A) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group making such Takeover Proposal; provided, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Acquisition Proposal; provided, however, that prior to nothing contained in this Agreement shall prevent Seller or concurrently with the Company taking such actions as described in clauses its Board of Directors, from (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for furnishing non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposalto, or any initial request for entering into discussions or negotiations related to with, any Takeover Proposal, and, person or entity in connection with an unsolicited bona fide written Acquisition Proposal by such notice, and subject person or entity or agreeing to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions (with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and agreement being subject to the existing terms of confidentiality obligations of the Company as in place as of the date termination of this Agreement, the Company shall promptly (and, Agreement in any event, within twenty-four (24) hours) provide Acquiror accordance with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)Article VIII) or any material modification thereto is first made public or sent or given recommending an unsolicited bona fide written Acquisition Proposal to the stockholders of the Company or received by the CompanySeller, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: to the extent that (v1) the Company has complied with the other provisions Board of this Section 6.02, (w) the Company Board determines Directors of Seller believes in good faith (after consultation with its outside legal counselfinancial advisor) that such Acquisition Proposal is reasonably capable of being completed on the failure terms proposed and would, if consummated, result in a transaction more favorable than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being referred to take such action would be inconsistent with the exercise in this Agreement as a "Superior Proposal") and Seller's Board of its fiduciary duties under applicable Law, (x) the Company Board Directors determines in good faith (after consultation with its outside legal counsel that such action is necessary for such Board of Directors to comply with its fiduciary duties to stockholders under applicable law and financial (2) prior to furnishing such non-public information to, or entering into discussions or negotiations with, such person or entity, such Board of Directors receives from such person or entity an executed confidentiality agreement with terms no less favorable to such party than those contained in the Confidentiality Agreement; or (B) complying with Rule 14d-9 and 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal or making any disclosure to Seller's stockholders if, in the good faith judgment of Seller's Board of Directors, after consultation with outside legal counsel, such disclosure is required by applicable law.
(b) Seller shall notify Buyer within one day after receipt by Seller (or its advisors) of any Acquisition Proposal or any request for nonpublic information in connection with an Acquisition Proposal or for access to the properties, books or records of Seller by any person or entity that the applicable Takeover Proposal constitutes a Superior Proposal and informs Seller that it intends to accept is considering making, or recommend such Superior has made, an Acquisition Proposal, (y) . Such notice shall be made orally and in writing and shall indicate in reasonable detail the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy identity of the proposed acquisition agreement offeror and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and such proposal, inquiry or contact. Seller shall continue to keep Buyer informed, on a current basis, of the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror status of any such discussions or negotiations and all material revision and the Company Board terms being discussed or negotiated, which shall not make an Adverse Recommendation Change prior include, without limitation, any change to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement proposed price and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e).
(g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions form of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writpayment.
Appears in 2 contracts
Sources: Merger Agreement (Learning Co Inc), Merger Agreement (Broderbund Software Inc /De/)
No Solicitation. (a) Until the earlier of the Effective Time and the valid termination of Except as set forth in this Agreement pursuant to Section 8.016.1, the Company shall not, nor shall it authorize or permit its Subsidiary or any of its or their respective directors, officers or employees to, and it shall use reasonable best efforts to cause its Subsidiaries the Company’s and its Subsidiary’s Affiliates, investment bankers, attorneys, accountants or other advisors, agents or representatives (such directors, officers, employees, Affiliates, investment bankers, attorneys, accountants, other advisors, agents and their respective Representatives representatives, collectively, “Representatives”) not to, directly or indirectly, :
(i) solicit, initiate, propose, knowingly facilitate encourage or knowingly encourage take any other action to facilitate any inquiries or the submission or announcement making of any inquiriesproposal or offer that constitutes, proposals or offers that constitute or would could reasonably be expected to lead to to, any Takeover Acquisition Proposal, including (iiA) provide approving any nontransaction under Section 7-public information concerning 5.2-4 of the Company Rhode Island Business Combination Act, (B) approving any person becoming an “interested shareholder” under Section 7-5.2-4 of the Rhode Island Business Combination Act and (C) amending or its Subsidiaries to granting any Person waiver or group in connection with release under any Takeover Proposal, standstill or engage in any discussions or negotiations similar agreement with respect to any Takeover Proposal, Company Common Shares (iii) approve, support, adopt, endorse or recommend except for any Takeover Proposal, (iv) take any action to make the provisions portion of any “fair price,” “moratorium,” “control share acquisition,” “business combination” such standstill or other similar anti-takeover statute agreement that restricts the ability of a person to privately communicate an Acquisition Proposal to the Company, the Company Board or regulation any committee thereof); or
(including ii) enter into, continue or otherwise participate in any transaction undercommunications, discussions or a third party becoming an “interested stockholder” undernegotiations regarding, Section 203 of the Corporation Law) inapplicable furnish to any Person other than Acquiror and its Affiliates person any information or to any transactions constituting or contemplated by a Takeover Proposaldata with respect to, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions effort or negotiationsattempt by any person with respect to, or (vi) resolve or agree to do otherwise knowingly cooperate in any of the foregoing. The Company shallway with, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with any Person or groups that may be ongoing with respect to any Takeover Acquisition Proposal or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other than to advise such person of the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return Company’s obligations under this Section 6.1). Notwithstanding the foregoing, prior to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company or any of its Subsidiaries or any of its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None receipt of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to Shareholder Approval (the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement“Specified Time”), the Company and its Representatives may may, in any event inform response to a Person or group bona fide, unsolicited written Acquisition Proposal (that has not been withdrawn) made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of received after the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received a bona fide, written Takeover Proposal from any Person or group each case that did not result from a breach by the Company of this Section 6.026.1, (x) contact the person or group of persons who has made such Acquisition Proposal in order to clarify terms for the sole purpose of the Company Board informing itself about such Acquisition Proposal in order to assess whether such proposal is reasonably likely to lead to a Superior Proposal and (y) if the Company Board reasonably determines in good faith after consultation with outside counsel and the Financial Advisor or another nationally recognized independent financial advisor that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal and that the failure to take such action would be inconsistent with the fiduciary duties of the Company Board under applicable Law, (1) furnish information or data with respect to the Company to the person making such Acquisition Proposal and its Representatives pursuant to a customary confidentiality agreement not less restrictive of the other party than the Confidentiality Agreement (a copy of which shall be provided to the Parent within 48 hours of being fully executed) (provided that such confidentiality agreement shall not be required to restrict a person from privately communicating an Acquisition Proposal to the Company, the Company Board or any committee thereof, and provided further that such confidentiality agreement and any related agreements shall not include any provision calling for any exclusive right to negotiate with such party or having the effect of otherwise prohibiting the Company from complying with any provisions of this Section 6.1) and (2) participate in discussions or negotiations with such person and its Representatives regarding such Acquisition Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 6.1(a) by any director, officer or employee of the Company or its Subsidiary, whether or not such person is purporting to act on behalf of the Company or otherwise, shall be deemed to be a breach of this Section 6.1(a) by the Company.
(b) Neither the Company Board nor any committee thereof shall:
(i) except as set forth in this Section 6.1(b), withhold, withdraw, qualify or modify, or propose to any third party to withhold, withdraw, qualify or modify, in a manner adverse to the Parent or the Merger Sub, the approval or recommendation by the Company Board or any such committee of this Agreement or the Merger;
(ii) cause or permit the Company to enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement constituting or relating to, or that could reasonably be expected to lead to, any Acquisition Proposal (other than a confidentiality agreement referred to in Section 6.1(a) entered into in the circumstances referred to in Section 6.1(a)); or
(iii) adopt, approve or recommend, or propose to adopt, approve or recommend, any Acquisition Proposal. Notwithstanding the foregoing, provided the Company shall not have breached in a material respect its obligations under Section 6.1(a), the Company Board may withdraw or modify the recommendation by the Company Board or any committee thereof of this Agreement or the Merger if:
(A) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or could reasonably be expected to result in a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, (A) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group making such Takeover Proposal; provided, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer or request counsel and the nature of such requestFinancial Advisor or another nationally recognized independent financial advisor, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable Lawof the Company Board to the shareholders of the Company either (1) based upon a material development or change that impacts the Company (other than an Acquisition Proposal) that was neither known to, nor reasonably foreseeable by, the Company Board or management of the Company or its Subsidiary as of or prior to the date hereof (xit being agreed that the results of the introduction of new or modified products or the results of sales or marketing initiatives (including any increase in sales as a result thereof whether to new or existing customers) are reasonably foreseeable and shall not be considered a material development or change in circumstances) (such material development or change in circumstances, an “Intervening Event”) or (2) the Company Board determines in good faith (after consultation with its outside legal counsel and the Financial Advisor or another nationally recognized independent financial advisors) advisor that the applicable Takeover Company has received an Acquisition Proposal that constitutes a Superior Proposal Proposal, but in each case only at a time that is prior to the Specified Time and is after 11:59 pm, New York City time, on the fourth business day following the Parent’s receipt of written notice (an “Adverse Recommendation Notice”) advising the Parent that the Company Board desires to withdraw or modify the recommendation (and the manner and timing in which it intends to accept or recommend such Superior Proposaldo so, (y) and in the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, case of its intent to take such actionan Intervening Event, specifying the reasons therefor and including a copy of in reasonable detail) (such four business day period, the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation ChangePeriod”), and ; and
(zB) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated provides the Parent with Acquiror a reasonable opportunity to make adjustments in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and negotiates in good faith with the other agreements contemplated hereby such Parent with respect thereto during the Notice Period, in each case as would enable the Company Board or committee thereof to conclude that (1) the Superior Proposal Intervening Event is no longer constitutes a basis for any Company Adverse Recommendation Change or (2) the Acquisition Proposal that was determined to be a Superior Proposal and at is no longer a Superior Proposal. Any material changes to the end financial terms or any material change to other material terms of such four (4) Business Day period (as it may be extended Superior Proposal occurring prior to the Company Board’s effecting a Company Adverse Recommendation Change pursuant to the following provisothis Section 6.1(b) shall require the Company Board again makes to provide to the determinations described in clauses (w) Parent a new Adverse Recommendation Notice and (xa new Notice Period and to comply with the requirements of this Section 6.1(b) with respect to each such Superior Proposal; providedAdverse Recommendation Notice, further, except that in the event that there is any material amendment references to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal “fourth business day” shall be deemed to be to the “second business day.” Any Company Adverse Recommendation Change shall not change the approval of this Agreement or any other approval of the Company Board, including in any respect that would have the effect of causing any state (including Rhode Island) corporate takeover statute or other similar statute to be applicable to the transactions contemplated hereby or thereby, including the Merger. Nothing in this Section 6.1 (but subject to the provisions of Section 8.1(d)(ii), if applicable) shall be deemed to (A) permit the Company to take any action described in clauses (ii) or (iii) of the first sentence of this Section 6.1(b) or (B) limit the Company’s obligation to call, give notice of, convene and hold the Company Meeting, regardless of whether the Company Board has withdrawn or modified its recommendation of this Agreement and the Merger.
(c) The Company shall promptly advise the Parent orally, with written confirmation to follow within 48 hours, of any Acquisition Proposal or any request for nonpublic information in connection with any Acquisition Proposal, or any inquiry with respect to or that could reasonably be expected to lead to any Acquisition Proposal, the material terms and conditions of any such Acquisition Proposal or inquiry and the identity of the person making any such Acquisition Proposal or inquiry. The Company shall (i) keep the Parent reasonably informed, on a prompt basis, of the status and details (including any change to the terms) of any such Acquisition Proposal or inquiry and (ii) provide to the Parent as soon as practicable (and in any event within 48 hours) after receipt or delivery thereof copies of all material amendment)correspondence and other material written material sent or provided to the Company or its Representatives, including those provided by electronic mail, from any third party in connection with any Acquisition Proposal or sent or provided by the Company or its Representatives to any third party in connection with any Acquisition Proposal. Contemporaneously with providing any information to a third party in connection with any such Acquisition Proposal or inquiry, the Company shall notify Acquiror furnish a copy of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior information to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable LawParent.
(fd) Nothing contained in this Agreement shall prohibit restrict the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in communication pursuant to Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewithor taking or disclosing a position contemplated by Rules 14d-9 or 14e-2(a) under the Exchange Act, pending or otherwise making disclosure of its position thereunderto comply with applicable Law; provided, and the issuance of that any such communication shall not, in and of itself, constitute an disclosure that constitutes a Company Adverse Recommendation Change for purposes shall be subject to Section 6.1(b). For the avoidance of doubt, a factually accurate public statement that describes the receipt of an Acquisition Proposal and the operation of this Agreement with respect thereto (without including such a reaffirmation of the recommendation of the Company Board of this Agreement; provided, however, that no ) shall not be deemed a Company Adverse Recommendation Change Change.
(e) The Company shall, and shall cause its Subsidiary and its and their Representatives to, cease immediately all communications, discussions and negotiations regarding any proposal that constitutes, or may reasonably be made unless expected to lead to, an Acquisition Proposal.
(f) Except as set forth in Section 6.1(a)(i)(C), the Company agrees to enforce or cause to be enforced each confidentiality, “standstill” or similar agreement to which the Company or any Subsidiary of the Company is a party at the request of the Parent, including by seeking specific performance of, or injunctive or other equitable relief under, any such agreements, provided that any expenses incurred by the Company in connection with such enforcement shall have first complied with its obligations in Section 6.02(e)reduce the Target Cash Amounts.
(g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions For purposes of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writ:
Appears in 2 contracts
Sources: Merger Agreement (Essilor International /Fi), Merger Agreement (Costa Inc)
No Solicitation. (a) Until The Company shall and shall cause each of the earlier Company Subsidiaries and shall use its reasonable best efforts to cause its Representatives to immediately (i) cease and cause to be terminated any solicitation, encouragement, discussions or negotiations with any Persons that may be ongoing with respect to a Competing Proposal and (ii) instruct each Person that has previously executed a confidentiality agreement in connection with such Person’s consideration of a Competing Proposal to return to the Company or destroy any non-public information previously furnished to such Person or to any Person’s Representatives by or on behalf of the Company or any Company Subsidiary.
(b) From and after the date of this Agreement until the Effective Time and or, if earlier, the valid termination of this Agreement pursuant to Section 8.01in accordance with ARTICLE VII, the Company shall not, not and shall cause its each of the Company Subsidiaries and shall use its reasonable best efforts to cause its and their respective Representatives not to, directly or indirectly, (i) solicit, initiate, knowingly facilitate or knowingly encourage the submission or announcement (including by way of furnishing non-public information) any inquiries, proposals or offers that constitute or would reasonably be expected to lead to any Takeover Competing Proposal, (ii) provide engage in, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any other Person any non-public information concerning the Company or its Subsidiaries to any Person or group in connection with any Takeover Proposalor for the purpose of encouraging or facilitating, or engage in any discussions or negotiations with respect to any Takeover a Competing Proposal, (iii) approve, supportendorse, adoptrecommend, endorse execute or recommend enter into, or publicly propose to approve, endorse, recommend, execute or enter into any Takeover Proposalletter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar definitive Contract (other than an Acceptable Confidentiality Agreement) with respect to any Competing Proposal (an “Alternative Acquisition Agreement”), (iv) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation Takeover Statute (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the Corporation LawDGCL) or any applicable anti-takeover provision in the Company’s organizational documents inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Competing Proposal, (v) otherwise cooperate with terminate, amend, release, modify or knowingly assist fail to enforce any provision of, or participate grant any permission, waiver or request under, any standstill, confidentiality or similar contract entered into by the Company in respect of or in contemplation of a Competing Proposal (other than to the extent the Company Board determines in good faith, after consultation with its independent financial advisors and outside legal counsel, that failure to take any such inquiriesactions under this Section 5.3(b)(v) to the extent necessary to permit a Person to make a Competing Proposal to the Company Board, proposalswould be inconsistent with its fiduciary duties under applicable Law, offersprovided that such actions shall be conditioned upon such Person making such Competing Proposal agreeing to disclosure of such Competing Proposal to Parent and the Purchaser, discussions or negotiations, in each case as contemplated by and subject to compliance with this Section 5.3) or (vi) propose, resolve or agree to do any of the foregoing. The Company shall; provided, and however, that nothing in this Section 5.2(b) shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with any Person or groups that may be ongoing with respect to any Takeover Proposal or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company or any of its Subsidiaries or any of its and their respective businesses, operations or affairs heretofore furnished by prohibit the Company or its Subsidiaries or Representatives from contacting in writing any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this AgreementPersons who make, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of following the date of this Agreement, terminate a Competing Proposal, for the sole purpose of clarifying the terms and conditions thereof so as to determine whether such Competing Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal, and any such actions shall not be a breach of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this AgreementSection 5.2(b).
(bc) Notwithstanding anything to the contrary contained in Section 5.3(b) or any other provisions of this Agreement, if if, at any time on or after the date of this Agreement and prior to the Acceptance Time, (i) the Company, any Company has received Subsidiary or any of its Representatives receives a bona fidewritten, written Takeover bona-fide Competing Proposal from any Person or group that of Persons which did not result from a any breach by the Company, any Company Subsidiary or their Representatives of this Section 6.025.3, and (ii) the Company Board determines in good faith, after consultation with its independent financial advisor advisors and outside legal counsel, that such Takeover Competing Proposal constitutes or could reasonably be expected to result in lead to a Superior Proposal, then the Company mayand its Representatives may (A) furnish, upon receipt of pursuant to an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover ProposalAgreement, (A) furnish information (including non-public information) with respect to the Company and its the Company Subsidiaries to the Person or group making of Persons who has made such Takeover Competing Proposal; provided, that (x) the Company shall substantially concurrently promptly provide to Acquiror Parent any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for material non-public information concerning the Company or any Company Subsidiary that is provided to any Person given such access which was not previously provided to Parent or its Subsidiaries from any Representatives and (B) engage in or otherwise participate in discussions or negotiations with the Person or group who has made or would reasonably be expected to make any Takeover of Persons making such Competing Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, .
(d) From and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of after the date of this Agreement, the Company shall promptly (andpromptly, and in any eventevent within 48 hours, within twenty-four (24notify Parent in the event that any of the officers or directors of the Company or any Company Subsidiary, any of the individuals listed in Section 8.4(i) hours) provide Acquiror with unredacted copies of all written inquiriesthe Company Disclosure Schedule, requests, proposals attorneys or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals legal advisors representing the Company or offers, received by the Company, its Company Subsidiaries, or its any investment banker or their respective Representativesfinancial advisors representing the Company or the Company Subsidiaries (including the Company Financial Advisor) receives (i) any Competing Proposal or (ii) any request for discussions or negotiations regarding any Competing Proposal. In connection with such notice, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Company shall indicate the identity of the Person or group of Persons making such Competing Proposal or request and shall provide a Takeover copy of such Competing Proposal, indication, or request (or, where no such copy is available, a reasonably detailed description of such Competing Proposal, indication, or request), including any modifications thereto. Thereafter, the Company shall keep Parent informed (orally and in writing) on a current basis (and in any event at Parent’s request and otherwise no later than 48 hours after the occurrence of any material changes, developments, discussions or negotiations) of the status of any Competing Proposal, indication, or request (including the material terms and conditions thereof and of any modification thereto), and any material developments, discussions and negotiations, including furnishing copies of any revised written proposals or offers relating thereto. Neither the Company nor any Company Subsidiary will enter into any confidentiality agreement with any Person subsequent to the date hereof which prohibits the Company from providing any information to Parent in accordance with this Section 5.3.
(de) Neither From and after the date of this Agreement, except as expressly permitted by this Section 5.3(e) and subject in all respects to Section 5.3(f), neither the Company Board nor any committee thereof shall (i) withdraw withhold, withdraw, qualify or rescind (modify, or modify publicly propose to withhold, withdraw, qualify or qualify modify, in a manner adverse to Acquiror Parent or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub)the Purchaser, the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b)Recommendation, (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or 14D-9, (viiiii) following the commencement of any if a tender offer or exchange offer relating for shares of capital stock of the Company that constitutes a Competing Proposal is commenced, fail to securities publicly recommend against acceptance of such tender offer or exchange offer by the stockholders of the Company (other than taking no position with respect to the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection acceptance of such tender offer or exchange offer and by the stockholders of the Company shall constitute a failure to recommend against acceptance of such tender offer or exchange offer) within 10 Business Days after commencement thereof or fail to reaffirm the Company Board Recommendation within four Business Days after Parent so requests in writing (B) reaffirming its recommendation of this Agreementprovided that Parent shall not be entitled to request such reaffirmation more than one time, unless such Competing Proposal is amended, after which, the Offer and the Merger (any action described Company Board shall provide a reaffirmation for each such amendment in clause (iaccordance with this Section 5.3(e), (ii), (iii), (iv) adopt, approve or recommend, or publicly propose to adopt, approve or recommend, any Competing Proposal made or received after the date of this Agreement (any of the actions described in clauses (i) through (iv) of this Section 5.3(e), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”).
; provided that the delivery of a Recommendation Change Notice or a Notice of Superior Proposal shall not, in and of itself, constitute an Adverse Recommendation Change) or (ev) cause or permit the Company or any Company Subsidiary to enter into any Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to the Acceptance Time, the Company Board may shall be permitted to effect an any Adverse Recommendation Change (x) described in response clause (i) of such definition or otherwise terminate this Agreement to concurrently enter into a definitive Alternative Acquisition Agreement, in each case solely, under this clause (x), with respect to a Superior Proposal Proposal, subject in each case to compliance with Section 5.3(f) and the concurrent payment of any amount owed Parent pursuant to Section 7.2, if and only if: (v) the Company Board (A) has complied with the other provisions of this Section 6.02, (w) received a bona fide written Competing Proposal that the Company Board determines in good faith (faith, after consultation with its independent financial advisors and outside legal counsel, constitutes a Superior Proposal, after having complied with, and giving effect to all of the adjustments which may be offered by Parent and the Purchaser pursuant to Section 5.3(f) and (B) in connection with an Adverse Recommendation Change described in clause (i) of such definition, determines in good faith, after consultation with its legal advisors, that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law or (y) in response to an Intervening Event, if the exercise of Company Board determines in good faith, after consultation with its legal advisors, that failure to make an Adverse Recommendation Change would be inconsistent with its fiduciary duties under applicable Law; provided, that the Company Board may not make an Adverse Recommendation Change in response to an Intervening Event unless the Company (A) provides Parent with a written description of such Intervening Event in reasonable detail, (xB) keeps Parent reasonably informed of material developments with respect to such Intervening Event, (C) notifies Parent in writing at least four Business Days before making an Adverse Recommendation Change with respect to such Intervening Event of its intention to do so and specifying the reasons therefor (such notice, a “Recommendation Change Notice”) and (D) prior to the expiration of such four Business Day period, Parent does not make a bona fide proposal to amend the terms of this Agreement that the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that would obviate the applicable Takeover Proposal constitutes a Superior Proposal and that it intends need to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation accordance with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law.
(f) From and after the date of this Agreement, the Company Board shall not be entitled to effect an Adverse Recommendation Change or terminate this Agreement, in each case, with respect to a Superior Proposal unless (i) none of the Company, any Company Subsidiary or any of their Representatives has breached this Section 5.3 in any respect as relates to such Superior Proposal, (ii) the Company has provided written notice (a “Notice of Superior Proposal”) to Parent and the Purchaser that the Company intends to take such action, which notice includes a copy of the Superior Proposal that is the basis of such action (including the identity of the Third Party making the Superior Proposal) and copies of all relevant documents relating to such Superior Proposal (including all financing documents, if applicable, provided that the Company shall not be required to disclose any provisions of a fee letter that are customarily redacted, if so required by the Third Party making the Superior Proposal), (iii) during the four Business Days period following Parent’s and the Purchaser’s receipt of the Notice of Superior Proposal, the Company shall, and shall cause its Representatives to, negotiate with Parent and the Purchaser in good faith (to the extent Parent and the Purchaser desire to negotiate) to make such adjustments in the terms and conditions of this Agreement so that such Superior Proposal would cease to constitute a Superior Proposal and (iv) following the end of the four Business Days period, the Company Board shall have determined in good faith, after consultation with its independent financial advisors and outside legal counsel, taking into account any changes to this Agreement proposed in writing by Parent and the Purchaser in response to the Notice of Superior Proposal or otherwise, that the Superior Proposal giving rise to the Notice of Superior Proposal continues to constitute a Superior Proposal. Any amendment to the financial terms or any other material amendment of such Superior Proposal shall require a new Notice of Superior Proposal and the Company shall be required to comply again with the requirements of this Section 5.3(f); provided, however, that for purposes of this sentence, references to the four Business Day period above shall be deemed to be references to a two (2) Business Day period.
(g) Nothing contained in this Agreement shall prohibit the Company or the Company Board Board, directly or indirectly through their respective Representatives, from (i) taking and disclosing to the Company’s stockholders a position with respect to a tender or exchange offer by a third party Third Party pursuant to Rules Rule 14d-9 and 14e-2(a) promulgated or Rule 14e-2 under the Exchange Act or from issuing a (ii) making any “stop, look and listen” communication, as defined in communication to the Company’s stockholders pursuant to Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e).
(g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreement, if the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines has determined in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the that failure to make an Adverse Recommendation Change take such action would be inconsistent with reasonably likely to result in a breach of the exercise of its directors’ fiduciary duties under applicable Law; (v) no provided that, in each case, any Adverse Recommendation Change has been may only be made for three (3) Business Days after receipt by Acquiror of a writin accordance with this Section 5.3.
Appears in 2 contracts
Sources: Merger Agreement (Corning Inc /Ny), Merger Agreement (Alliance Fiber Optic Products Inc)
No Solicitation. (a) Until Subject to the remainder of this Section 5.02, from the date of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 8.01Article VII, the Company shall notnot and shall not cause or permit its Subsidiaries to, and shall cause not authorize or permit its Subsidiaries and Representatives or its and their respective Subsidiaries’ Representatives not to, directly or indirectly, to (i) solicit, initiate, knowingly facilitate initiate or knowingly encourage the submission or announcement of any inquiriesAcquisition Proposal (as defined below), proposals (ii) enter into any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or offers other similar agreement with respect to any Acquisition Proposal, (iii) solicit, knowingly encourage, participate, engage in or assist in any manner any discussions or negotiations regarding, or furnish to any person (other than Parent or its Representatives) any information with respect to, or knowingly take any other action to facilitate any inquiries or the making of any proposal that constitute constitutes, or would may reasonably be expected to lead to to, any Takeover Proposal, (ii) provide any non-public information concerning the Company Acquisition Proposal or its Subsidiaries to any Person or group in connection with any Takeover Proposal, or engage in any discussions or negotiations with respect to any Takeover Proposal, (iii) approve, support, adopt, endorse or recommend any Takeover Proposal, (iv) take any action (A) other than as contemplated by this Agreement in connection with the Merger, to make render the provisions Company Rights issued pursuant to the terms of the Company Rights Agreement inapplicable to any Acquisition Proposal or the transactions contemplated thereby, to exempt or exclude any person (other than Parent or Merger Sub) from the definition of an Acquiring Person (as defined in the Company Rights Agreement) under the terms of the Company Rights Agreement or allow the Company Rights to expire prior to their expiration date (all such actions in this subclause (A) are collectively referred to as “fair price,” “moratorium,” “control share acquisition,” Company Rights Agreement Modifications”) or (B) exempt any person (other than Parent or Merger Sub) from the restrictions on “business combinationcombinations” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, contained in Section 203 of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, DGCL (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve or agree to do any of the foregoing. The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with any Person or groups that may be ongoing with respect to any Takeover Proposal or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company or any of its Subsidiaries similar provision) or any of its and their respective businesses, operations otherwise cause or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives permit such restrictions not to apply (all such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained actions in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received a bona fide, written Takeover Proposal from any Person or group that did not result from a breach of this Section 6.02, and (ii) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or could reasonably be expected to result in a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, (A) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group making such Takeover Proposal; provided, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and subclause (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being are collectively referred to as an “Adverse Recommendation ChangeDGCL 203 Modifications”).
(eb) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, receipt of the Company Board may effect an Adverse Recommendation Change Stockholder Merger Approval, in response to an unsolicited bona fide written Acquisition Proposal received after the date of this Agreement and not the result of a Superior Proposal if and only if: (v) the Company has complied with the other provisions breach of this Section 6.025.02, (w) if the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable Law, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors, that such Acquisition Proposal constitutes or may reasonably be expected to lead to a Superior Proposal (as defined in subsection (h) below), the Company may (x) enter into a customary confidentiality agreement with the person making such Acquisition Proposal containing terms and provisions (i) substantially similar to the terms and provisions of, (ii) no less restrictive on the person making such Acquisition Proposal and (iii) no less favorable to the Company than, the Confidentiality Agreement (it being understood that such confidentiality agreement will not include any provision calling for an exclusive right to negotiate with the applicable Takeover Company or having the effect of prohibiting the Company from satisfying its obligations under this Section 5.02), (y) furnish, and authorize and permit its Representatives to furnish, information with respect to the Company and its Subsidiaries to the person making such Acquisition Proposal and its Representatives pursuant to such customary confidentiality agreement and (z) participate in discussions or negotiations with such person and its Representatives regarding any such Acquisition Proposal.
(c) The Company shall notify Parent (“Notice of Proposal”) as promptly as practicable (and in any event within 24 hours) after receipt by the Company or any of its Subsidiaries, or any of their respective Representatives, of any bona fide inquiries, proposals or offers, requests for information or requests for discussions or negotiations in connection with any Acquisition Proposal, specifying the material terms and conditions thereof and, to the extent not prohibited by any confidentiality agreement or other similar agreement in existence as of the date of the Original Agreement, the identity of the party making such inquiry, proposal, offer or request (and, in the case of an entity, the ultimate beneficial owner thereof, if known to the Company). The Company shall keep Parent reasonably informed, on a prompt basis, of the status of any such discussions or negotiations and of any modifications to such inquiries, proposals, offers or requests, and shall promptly (and in any event within 24 hours) provide to Parent a copy of all written (and a summary in reasonable detail of all oral) inquiries, proposals or offers, requests for information or requests for discussions or negotiations from any other person and all written due diligence materials or other information provided by or on behalf of the Company or any Subsidiary of the Company in connection therewith that was not previously provided to Parent.
(d) The Company Board shall not (i) withdraw, amend or modify the Company Board Recommendation in a manner adverse to Parent or Merger Sub, or publicly propose or announce an intent to, or resolve to, do any of the foregoing (any such action, an “Adverse Recommendation Change”), (ii) approve, adopt or recommend, or publicly propose to approve, adopt or recommend, any Acquisition Proposal, or (iii) cause or permit the Company or any of its Subsidiaries to execute or 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 agreement constituting or related to, or that is intended to, or may reasonably be expected to lead to, any Acquisition Proposal, other than any confidentiality agreement permitted by Section 5.02(b).
(e) Notwithstanding the foregoing, if the Company has otherwise complied with its obligations under this Section 5.02, then at any time prior to the time when the Company Stockholder Merger Approval has been obtained:
(i) upon having received an unsolicited bona fide written Acquisition Proposal that is not subsequently withdrawn and the Company Board concluding in good faith (A) after consultation with its financial advisors and outside legal counsel, that such Acquisition Proposal constitutes a Superior Proposal and (B) after consultation with its outside legal counsel that it intends taking such action is necessary to accept or recommend such Superior Proposal, (y) comply with its fiduciary duties to the Company shall have provided prior written notice Stockholders under applicable Law, the Company Board may make an Adverse Recommendation Change or publicly propose to Acquiror, at least four (4) Business Days prior to effecting any make an Adverse Recommendation Change, of its intent or approve or recommend the Superior Proposal, or terminate this Agreement pursuant to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”Section 7.01(c), and (z) if requested in writing by Acquiror, the or make Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated Rights Agreement Modifications or DGCL 203 Modifications with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant respect to the following proviso) the acquisition of Company Board again makes the determinations described in clauses (w) and (x) with respect Common Stock pursuant to such Superior Proposal; provided, furtherhowever, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to Change, approve or recommend the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change Superior Proposal or the Company to terminate this Agreement pursuant to Section 8.01(g7.01(c) would be inconsistent or make such Company Rights Agreement Modifications or DGCL 203 Modifications, unless the Company has first (x) provided notice (“Notice of Superior Proposal”) to Parent that an Acquisition Proposal described in a Notice of Proposal previously furnished to Parent constitutes a Superior Proposal, (y) given Parent three (3) Business Days following Parent’s receipt of the Notice of Superior Proposal to propose revisions to the terms of this Agreement (or make another proposal) and (z) shall have negotiated during such three Business Day period in good faith with Parent with respect to such proposed revisions or other proposal, if any, and at the exercise end of such period 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 Acquisition Proposal remains a Superior Proposal relative to the Merger, as supplemented by any counterproposals made by Parent (it being understood and agreed that any amendment to any material term of such Acquisition Proposal shall require a new Notice of Superior Proposal and a new three (3) Business Day period under clause (y).
(ii) In circumstances other than as provided in Section 5.02(e)(i) above, the Company Board may, if it determines in good faith, after consulting with outside legal counsel, that taking such action is necessary to comply with its fiduciary duties obligations under applicable Law, make an Adverse Recommendation Change, or publicly propose to make an Adverse Recommendation Change, but only after the Company has provided Parent with forty-eight (48) hours prior written notice that the Company Board is prepared to make the determination set forth in this clause (ii).
(f) Nothing contained in this Agreement Section 5.02 shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders Company Stockholders a position with respect to a tender offer contemplated by a third party pursuant to Rules Rule 14d-9 and or Rule 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under making any required disclosure to the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall notCompany Stockholders if, in and the good faith judgment of itselfthe Company Board, constitute after consultation with outside legal counsel, failure so to disclose would be inconsistent with its fiduciary obligations under applicable Law, it being understood, however, that this Section 5.02(f) shall not be deemed to permit the Company Board to make an Adverse Recommendation Change for purposes or take any of this Agreement; providedthe actions referred to in clause (iv) of Section 5.02(a) except, however, that no Adverse Recommendation Change may be made unless in each case to the Company shall have first complied with its obligations in extent permitted by Section 6.02(e5.02(e).
(g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions For purposes of this Agreement, which event“Acquisition Proposal” means any inquiry, development proposal or change in circumstance, offer from any person or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time group (any as such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any term is defined under Section 13(d) of the following constitute, Exchange Act) (other than Parent or be taken into account in determining the existence of, an Intervening Event: Merger Sub) relating to (xi) the fact that the Company meets any direct or exceeds any internal indirect acquisition or published projections, forecasts, estimates or predictions purchase of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume more than 15% of the outstanding shares of Company Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledgeany tender offer or exchange offer that, as if consummated, would result in any person or group beneficially owning more than 15% of the date outstanding shares of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this AgreementCompany Common Stock; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting direct or indirect acquisition of assets of the Company Board at which it will consider and determine whether such Intervening Event may require that generate or constitute 15% or more of the Company to make an Adverse Recommendation Changenet revenues, with a written notice specifying net income or the date and time assets (based on the fair market value thereof) of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening EventCompany; (iv) a merger, consolidation, business combination, recapitalization, restructuring, liquidation, dissolution or other similar transaction involving the Company Board determines or any Significant Subsidiary (as defined in good faith, after consultation with its financial advisor Rule 1-02(w) of Regulation S-X) of the Company; and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made any sale, lease, exchange, transfer, license, acquisition or disposition of assets of the Company or any Subsidiary of the Company (including for three (3this purpose the outstanding equity securities of the Subsidiaries of the Company) Business Days after receipt for consideration equal to 15% or more of the aggregate fair market value of all of the shares of Company Common Stock outstanding on the date prior to the date hereof, but in each case other than the transactions contemplated by Acquiror of a writthis Agreement.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (BTP Acquisition Company, LLC), Agreement and Plan of Merger (Image Entertainment Inc)
No Solicitation. (a) Until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 8.01, the Company Ashland shall not, nor shall it authorize or permit any Ashland Subsidiary to, nor shall it authorize or permit any officer, director or employee of, or any investment banker, attorney, auditor or other advisor, agent or representative (collectively, “Representatives”) of, Ashland or any Ashland Subsidiary to, and shall cause on becoming aware of it will use its Subsidiaries and its and their respective Representatives not reasonable best efforts to stop such Ashland Subsidiary or Representative from continuing to, directly or indirectly, (i) solicit, initiate, knowingly facilitate initiate or knowingly encourage the submission or announcement of any inquiriesCompeting Ashland Proposal (as defined in Section 8.02(e)), proposals (ii) enter into any agreement with respect to any Competing Ashland Proposal or offers (iii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or cooperate with or take any other action knowingly to facilitate any inquiries or the making of any proposal that constitute constitutes, or would reasonably be expected to lead to any Takeover Proposal, (ii) provide any non-public information concerning the Company or its Subsidiaries to any Person or group in connection with any Takeover Proposal, or engage in any discussions or negotiations with respect to any Takeover Proposal, (iii) approve, support, adopt, endorse or recommend any Takeover Proposal, (iv) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve or agree to do any of the foregoing. The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with any Person or groups that may be ongoing with respect to any Takeover Proposal or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company or any of its Subsidiaries or any of its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received a bona fide, written Takeover Proposal from any Person or group that did not result from a breach of this Section 6.02, and (ii) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or could reasonably be expected to result in a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, (A) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group making such Takeover Proposal; provided, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Competing Ashland Proposal; provided, however, that that, prior to receipt of the Ashland Shareholder Approval (the “Cutoff Date”), Ashland and its Representatives may, in response to a bona fide written Competing Ashland Proposal that the Ashland Board determines, in good faith (after consultation with its financial advisor, inside counsel and outside counsel), constitutes or concurrently is reasonably likely to result in a Superior Proposal (as defined in Section 8.02(e)) that was not solicited by Ashland and that did not otherwise result from a breach or a deemed breach of this Section 8.02(a), and subject to compliance with Section 8.02(c), (x) furnish to the person making such Competing Ashland Proposal and its Representatives information with respect to Ashland, pursuant to a customary confidentiality agreement that does not contain terms that prevent Ashland from complying with its obligations under this Section 8.02, and information with respect to MAP in accordance with the Company taking MAP Governing Documents and (y) participate in discussions or negotiations with such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover person and its Representatives regarding any Competing Ashland Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(db) Neither the Company Ashland Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub)the Marathon Parties, or propose publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub)the Marathon Parties, the Company adoption, approval or recommendation by the Ashland Board Recommendation or any such committee of the Transaction Agreements or the findings Transactions or conclusions of the Company Board referred to in Section 4.03(b), (ii) adopt, approve or recommend the adoption ofrecommend, or propose publicly propose to approveadopt, declare the advisability of approve or recommend the adoption ofrecommend, any Takeover Competing Ashland Proposal. Notwithstanding the foregoing, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlierif, prior to the anticipated Expiration Cutoff Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Ashland Board determines in good faith (faith, after consultation with its inside and outside legal counsel) , that the failure to take such action would be inconsistent with the exercise reasonably likely to result in a breach of its fiduciary duties obligations under applicable Law, the Ashland Board may withdraw its adoption, approval or recommendation of the Transaction Agreements and the Transactions.
(xc) the Company Board determines Ashland promptly shall advise Marathon in good faith (after consultation writing of any Competing Ashland Proposal or any inquiry with its outside legal counsel and financial advisors) respect to or that the applicable Takeover Proposal constitutes a Superior would reasonably be expected to lead to any Competing Ashland Proposal and that it intends to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy identity of the proposed acquisition agreement and person making any other documents related such Competing Ashland Proposal or inquiry and, in the case of a Competing Ashland Proposal referred to such Superior Proposal in clause (a i) or (ii) of the definition of “Notice of Intended Recommendation ChangeCompeting Ashland Proposal”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the material terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Competing Ashland Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; providedor inquiry, furtherif any, that would reasonably be expected to prevent or materially delay the Transactions or, in the event that there is any material amendment case of a Competing Ashland Proposal referred to the terms of any Superior Proposal in clause (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(ciii) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure definition of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from issuing a “stopCompeting Ashland Proposal”, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e).
(g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a all material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreementsuch Competing Ashland Proposal or inquiry, which eventif any. Ashland shall keep Marathon reasonably informed on a timely basis of the status and, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to case of a Takeover Competing Ashland Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, clause (i) or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date definition of this Agreement“Competing Ashland Proposal”, the details of such Competing Ashland Proposal or inquiry, if any, that such Intervening Event was would reasonably foreseeable be expected to prevent or reasonably likely materially delay the Transactions or, in the case of a Competing Ashland Proposal referred to occur or arise after the date of this Agreement; clause (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether definition of “Competing Ashland Proposal”, all the details of any such Intervening Event may require Competing Ashland Proposal or inquiry, if any. After the Company Cutoff Date, Ashland shall not be required to make an Adverse Recommendation Change, comply with a written notice specifying this Section 8.02(c) in any instance to the date and time of such meeting, extent that the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Ashland Board determines in good faith, after consultation with its financial advisor inside and outside legal counsel, thatthat such compliance would in such instance be reasonably likely to result in a breach of its fiduciary obligations under applicable Law.
(d) Nothing contained in this Agreement shall prohibit Ashland from taking and disclosing to its shareholders a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act (other than a position recommending acceptance under Rule 14e-2(a)(1) of a tender offer constituting a Competing Ashland Proposal) if, in light the good faith judgment of such Intervening Eventthe Ashland Board, the after consultation with inside and outside counsel, failure so to make an Adverse Recommendation Change disclose would be inconsistent with the exercise of its fiduciary duties obligations under applicable Law; .
(ve) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror For purposes of a writthis Agreement:
Appears in 2 contracts
Sources: Master Agreement (Marathon Oil Corp), Master Agreement (Marathon Oil Corp)
No Solicitation. (a) Until the earlier of the Effective Time and the valid termination of this Agreement pursuant Subject to Section 8.016 hereof, prior to the Termination Date, the Company shall not, and shall cause its Subsidiaries and its and their respective Representatives Shareholder agrees not to, directly or indirectly, (i) solicit, initiate, knowingly facilitate solicit or knowingly encourage or knowingly facilitate any inquiries or requests for information with respect to, or the submission making of, any inquiry regarding, or announcement of any inquiriesproposal or offer that constitutes, proposals or offers that constitute or would could reasonably be expected to result in or lead to to, any Takeover Acquisition Proposal, (ii) engage in, continue or otherwise participate in any negotiations or discussions concerning, or provide access to its properties, books and records or any non-public confidential information concerning the Company or its Subsidiaries data to, any Person relating to any Person proposal, offer, inquiry or group in connection with any Takeover Proposalrequest for information that constitutes, or engage could reasonably be expected to result in or lead to, any discussions or negotiations with respect to any Takeover Acquisition Proposal, (iii) approve, supportendorse or recommend, adoptor propose publicly to approve, endorse or recommend recommend, any Takeover Acquisition Proposal, (iv) take execute or enter into, any action to make the provisions letter of any “fair price,” “moratorium,” “control share acquisition,” “business combination” intent, memorandum of understanding, agreement in principle, confidentiality agreement, merger agreement, acquisition agreement, exchange agreement, joint venture agreement, partnership agreement, option agreement or other similar anti-takeover statute agreement for or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the Corporation Law) inapplicable relating to any Person other than Acquiror and its Affiliates Acquisition Proposal or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve or agree to do any of the foregoing. The Company Shareholder also agrees that immediately following the execution of this Agreement the Shareholder shall, and shall use commercially reasonable efforts to cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitationsolicitations, encouragement, discussion discussions or negotiation negotiations with any Person or groups that may be ongoing with respect to any Takeover Proposal or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company or any of its Subsidiaries or any of its Parties and their respective businesses, operations or affairs Representatives) conducted heretofore furnished by the Company or its Subsidiaries in connection with an Acquisition Proposal or any of their respective Representatives to such Person inquiry or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the request for information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received a bona fide, written Takeover Proposal from any Person or group that did not result from a breach of this Section 6.02, and (ii) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or could reasonably be expected to result in a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, (A) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group making such Takeover Proposal; provided, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposalto, or any initial request result in, an Acquisition Proposal. Notwithstanding anything in this Agreement to the contrary, (i) the Shareholder shall not be responsible for non-public information concerning the actions of the Company or its Subsidiaries from advisory board (or any Person or group who has made or would reasonably be expected to make committee thereof), any Takeover ProposalSubsidiary of the Company, or any initial request for discussions or negotiations related officers, directors (in their capacity as such), employees and professional advisors of any of the foregoing (the “Company Related Parties”), including with respect to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of matters contemplated by this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b5(a), (ii) approve the Shareholder makes no representations or recommend warranties with respect to the adoption ofactions of any of the Company Related Parties, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, and (iii) cause or permit any breach by the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of its obligations under Section 6.6 of the foregoing actionsBusiness Combination Agreement shall not be considered a breach of this Section 5(a) (it being understood for the avoidance of doubt that the Shareholder shall remain responsible for any breach by the Shareholder or his, (v) following the date any Takeover Proposal her or its Representatives (other than any tender or exchange offer relating to securities of the such Representative that is a Company (other than the Offer)Related Party) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable Law, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”5(a), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e).
(g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writ
Appears in 2 contracts
Sources: Support Agreement (Wiegand Daniel), Business Combination Agreement (Qell Acquisition Corp)
No Solicitation. (a) Until From the earlier of the Effective Time and the valid termination date of this Agreement pursuant to until the Effective Time, except as specifically permitted in Section 8.015.4(d), each of Parent and the Company agrees that it shall not, and shall cause its Subsidiaries not to, and shall use its commercially reasonable efforts to cause its and its and their Subsidiaries’ respective Representatives not to, directly or indirectly, :
(i) solicit, initiate, knowingly facilitate or knowingly encourage the submission or announcement of any inquiries, offers or proposals relating to a Takeover Proposal with respect to Parent or offers that constitute or would reasonably be expected to lead to any Takeover Proposalthe Company, respectively;
(ii) provide engage in discussions or negotiations with, or furnish or disclose any non-public information concerning the Company relating to such party or any of its Subsidiaries to to, any Person that has made or group indicated an intention to make a Takeover Proposal relating to such party in connection with any furtherance of such Takeover Proposal, or engage Proposal (it being understood that this restriction shall not apply to the sharing of information in any discussions or negotiations with respect to any Takeover Proposal, the ordinary course of business);
(iii) withdraw, modify, qualify or amend the Parent Board Recommendation or Company Board Recommendation, as the case may be, in any manner adverse to the other party;
(iv) approve, support, adopt, endorse or recommend any Takeover Proposal, (iv) take any action Proposal with respect to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, itself;
(v) otherwise cooperate enter into any Contract relating to a Takeover Proposal with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or respect to itself (other than an Acceptable Confidentiality Agreement); or
(vi) resolve or agree to do or publicly propose to take any of the foregoing. The foregoing actions.
(b) Each of Parent and the Company shall, and shall cause each of its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitationexisting solicitations, encouragement, discussion discussions or negotiation negotiations with any Person that has made or groups that may be ongoing indicated an intention to make a Takeover Proposal with respect to any Takeover Proposal Parent or potential Takeover Proposalthe Company, respectively. The Each of Parent and the Company shall shall, to the extent it has a contractual right to do so, promptly after the date hereof request that each Person (if any) that who has heretofore executed a confidentiality agreement (other than with such party in the Confidentiality Agreement) relating 12-month period prior to the date of the Original Agreement in connection with that Person’s consideration of a Takeover Proposal or potential Takeover Proposal with respect to promptly such Party return to the Company or destroy all non-public documents information furnished to that Person by or on behalf of such party. Each of Parent and materials relating the Company shall promptly inform its Representatives of such party’s obligations under this Section 5.4. Each of Parent and the Company agrees that any violation of the provisions of this Section 5.4 at the direction or with the consent of such party by any of its Subsidiaries or any Representative of such party or any of its Subsidiaries shall be deemed to be a breach of this Section 5.4 by such party. Furthermore, each of Parent and the Company agrees that any violation of the provisions of Section 5.4 of the Original Agreement that occurred at any time prior to the date hereof by Parent or the Company, respectively, or at the direction or with the consent of such party by any of its Subsidiaries or any Representative of such party or any of its Subsidiaries, shall be deemed to have been a breach of Section 5.4 of this Agreement by such party.
(c) Each of Parent and the Company shall notify the other promptly upon receipt by such party of (i) any Takeover Proposal or a written indication that would be reasonably likely to lead to a Takeover Proposal with respect to such party or (ii) any request for non-public information relating to such party or any of its Subsidiaries in connection with a Takeover Proposal with respect to such party or under circumstances that would be reasonably likely to lead to a Takeover Proposal with respect to such party. Each of Parent and the Company shall provide the other promptly with the identity of such Person and a copy of such Takeover Proposal, indication or request (or, where no such copy is available, a written summary of the material terms of such Takeover Proposal). Each of Parent and the Company shall keep the other informed on a reasonably current basis of the status of any such Takeover Proposal, indication or request, and any related communications to or by such party or its Representatives.
(d) Notwithstanding anything in this Agreement to the contrary, provided that such party has complied and continues to comply in all material respects with the provisions of this Section 5.4 and only until the Requisite Parent Vote or Requisite Company Vote, as applicable, is obtained, Parent or the Company, as applicable, and its board of directors may:
(i) (A) engage in discussions and negotiations with a Person who has made a bona fide unsolicited Takeover Proposal and (B) furnish or disclose any non-public information relating to the Company or any of its Subsidiaries Subsidiaries, or Parent or any of its Subsidiaries, as applicable, to such Person, in either case if and their respective businessesonly if (w) prior to furnishing or disclosing such information, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to Parent, as applicable, has caused such Person or group or any of such Person’s or group’s Representatives in accordance to enter into a confidentiality agreement with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into Parent, as applicable, on terms and conditions that are substantially equivalent to those contained in the Confidentiality Agreement, provided that any such confidentiality agreement subsequent to the date hereof which prohibits contains provisions expressly permitting the Company or Parent, as applicable, to comply with its obligations under this Agreement notwithstanding any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this restrictions set forth therein (an “Acceptable Confidentiality Agreement”), (x) the Company and its Representatives may or Parent, as applicable, concurrently discloses the same such non-public information to Parent or the Company, as applicable (in any event inform a Person or group that has made oreach case, to the Knowledge extent not already disclosed)), and (y) in the case of the Company, is considering makingthe board of directors of the Company determines in good faith, a after consultation with the Company Financial Advisor and the Company’s outside legal counsel, that such Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill either is a Superior Proposal or similar provisions would be reasonably likely to lead to a Superior Proposal, or in the Confidentiality Agreement shallcase of Parent, as the board of directors of Parent determines in good faith, after consultation with the date of this AgreementParent Financial Advisor and Parent’s outside legal counsel, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received a bona fide, written such Takeover Proposal from any Person either is a Superior Proposal or group that did not result from would be reasonably likely to lead to a breach of this Section 6.02, and Superior Proposal;
(ii) (x) withdraw, modify, qualify or amend the Parent Board Recommendation or Company Board Recommendation, as the case may be, in a manner adverse to the other party, in response to a bona fide unsolicited Takeover Proposal with respect to such party, (y) recommend such Takeover Proposal, or (z) terminate this Agreement to enter into a Contract relating to such Takeover Proposal pursuant to Section 7.3(e) (in the case of Parent) or Section 7.4(e) (in the case of the Company), in each case if and only if (A) the board of directors of such party determines in good faith, after consultation with the Parent Financial Advisor or the Company Board Financial Advisor, as the case may be, and such party’s outside legal counsel, that such Takeover Proposal constitutes a Superior Proposal, (B) such party’s board of directors determines in good faith, after consultation with its financial advisor and outside legal counsel, that failure to take such action would be inconsistent with the fiduciary and other duties of its directors; (C) such party provides the other with three Business Days prior written notice of its board of directors’ intention to take such action (including notice as to whether such party intends to terminate this Agreement and enter into a Contract with respect to such Superior Proposal), and (D) (1) during the three Business Day period following receipt of such notice, if so requested by the party receiving such notice, such party negotiates with and causes its financial and legal advisors to negotiate with the other regarding potential amendments to the terms and conditions of this Agreement which might cause such Takeover Proposal constitutes or could reasonably be expected to result in no longer constitute a Superior Proposal, then and (2) following the Company mayend of such three Business Day period, upon receipt such party’s board of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposaldirectors determines in good faith, (A) furnish information (including non-public information) with respect after taking into account any proposed amendments to the Company and its Subsidiaries to the Person or group making such Takeover Proposal; provided, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, provide the material terms and conditions of this Agreement offered in writing to such party by the other in response to such notice or otherwise and after consultation with the Parent Financial Advisor or the Company Financial Advisor, as the case may be, and such party’s outside legal counsel, that the Superior Proposal giving rise to such notice continues to constitute a Superior Proposal and that the failure to take such action would continue to be inconsistent with the fiduciary and other duties of its directors (provided that any such inquiry, proposal, offer or request and material amendment to the nature financial terms of such request, Superior Proposal shall not require a new notice and thereafter shall not require such party to further comply with the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date requirements of this Agreement, Section 5.4(d)(ii));
(iii) in the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies absence of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, withdraw, modify, qualify or that amend the Company, its Subsidiaries, Parent Board Recommendation or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify Recommendation, as the case may be, in a manner adverse to Acquiror or Merger Sub)the other party, or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: if (vx) the Company has complied with the other provisions board of this Section 6.02, (w) the Company Board directors of such party determines in good faith (faith, after consultation with its outside legal counsel) , that the failure to take such action would be inconsistent with the exercise fiduciary and other duties of its fiduciary duties under applicable Lawdirectors, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend such Superior Proposal, (y) such party provides the Company shall have provided prior written notice to Acquiror, at least four other with three (43) Business Days prior to effecting any Adverse Recommendation Change, written notice of its intent board of directors’ intention to take such action, specifying in reasonable detail the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Lawbasis therefor.
(fe) Nothing contained For the avoidance of doubt, nothing in this Agreement shall prohibit the Company or board of directors of the Company Board from taking and disclosing to the Company’s stockholders of the Company a position with respect to a tender offer contemplated by a third party pursuant to Rules 14d-9 and Rule 14e-2(a) and Rule 14d-9 promulgated under the Exchange Act (it being understood and agreed that any “stop-look-and-listen” communication by the board of directors of the Company to the stockholders of the Company pursuant to Rule 14d-9(f) of the Exchange Act, or from issuing any similar communication to the stockholders of the Company in connection with the commencement of a tender offer or exchange offer containing the substance of a “stop, look and -look-and-listen” communication, as defined in communication pursuant to Rule 14d-9(f), shall not be deemed to be a withdrawal, modification or amendment of the Company Board Recommendation); provided, that the Company shall not make any disclosure pursuant to Rule 14e-2(a) or Rule 14d-9 promulgated under the Exchange Act and in accordance therewiththat would amount to a withdrawal, pending disclosure modification, qualification or amendment of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Board Recommendation other than pursuant to Section 6.02(e5.4(d).
(gf) Notwithstanding anything in this agreement to the contrary contained in this Section 6.02 or elsewhere in this Agreementcontrary, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated except with respect to a Takeover Proposal being referred to as an “Intervening Event”); providedwithdrawal, however that in no event shall any of the following constitutemodification, qualification or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting amendment of the Company Board at Recommendation or the Parent Board Recommendation (which it shall be subject to this Section 5.4), nothing in this Agreement will consider and determine whether such Intervening Event may require prohibit either party from making disclosures to shareholders or otherwise that the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time board of directors of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board party determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under faith are required by applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writLaws.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (CSR PLC), Agreement and Plan of Merger (Zoran Corp \De\)
No Solicitation. (a) Until From and after the date of this Agreement until the earlier of the Effective Time and or the valid termination of this Agreement pursuant to Section 8.01Article VII, the Company Target shall not, and shall cause its Subsidiaries and its and their respective Representatives not to, directly or indirectly, through any officer, director, employee, representative or agent, (i) solicit, initiate, knowingly facilitate or knowingly encourage the submission any inquiries or announcement of any inquiriesproposals that constitute, proposals or offers that constitute or would could reasonably be expected to lead to, a proposal or offer for a merger, consolidation, business combination, sale of all or substantially all of the assets, sale of shares of capital stock (including without limitation by way of a tender offer) or similar transactions involving Target, other than the transactions contemplated by this Agreement (any of the foregoing inquiries or proposals being referred to any in this Agreement as a "Takeover Proposal"), (ii) engage in negotiations or discussions concerning, or provide any non-public information concerning the Company or its Subsidiaries to any Person person or group in connection with entity relating to, any Takeover Proposal, or engage in any discussions or negotiations with respect to any Takeover Proposal, (iii) approveagree to, support, adopt, endorse approve or recommend any Takeover Proposal; provided, (iv) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction underhowever, or a third party becoming an “interested stockholder” underthat if, Section 203 of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve or agree to do any of the foregoing. The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with any Person or groups that may be ongoing with respect to any Takeover Proposal or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company or any of its Subsidiaries or any of its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance Effective Time, (i) the Company has received a bona fideBoard of Directors of the Target or Acquiror, written Takeover Proposal from any Person or group that did not result from a breach of this Section 6.02as the case may be, and (ii) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that its fiduciary obligations to its respective stockholders under applicable law so requires, Target or Acquiror, as the case may be, in response to a Takeover Proposal which was not solicited by Target or Acquiror, as the case may be, subsequent to the date hereof (A) may furnish to any person information with respect to Target or Acquiror, as the case may be, pursuant to a customary confidentiality agreement, (B) may participate in negotiations regarding such Takeover Proposal constitutes and (C) subject to full compliance with this Section 5.1, may recommend a proposal to its stockholders which the Board of Directors of Target or could reasonably Acquiror, as the case may be, determines in its good faith judgment to be expected more favorable to result in Target or Acquiror, as the case may be (a "Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, (A) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group making such Takeover Proposal"); provided, however that (x) such party notifies the Company shall substantially concurrently provide to Acquiror other within 24 hours of receipt of any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(cb) The Company Target shall promptly notify Acquiror immediately (and, in any event, within twenty-four (24) no later than 24 hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, after receipt by Target (or its advisors or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to agents) of any Takeover Proposal, Proposal or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject a Takeover Proposal or for access to the existing terms properties, books or records of confidentiality obligations Target by any person or entity that informs Target that it is considering making, or has made, a Takeover Proposal. Such notice by Target shall be made orally and in writing and shall indicate in reasonable detail the identity of the Company as in place as of offeror and the date of this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer inquiry or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposalcontact.
(dc) Neither Except as set forth in this Section 5.1, neither the Company Board of Directors of Target or Acquiror, as the case may be, nor any committee thereof shall (i) withdraw or rescind (modify, or modify propose publicly to withdraw or qualify modify, in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub)the other party, the Company approval or recommendation by such Board Recommendation of Directors or such committee of the Merger, this Agreement or the findings or conclusions issuance of shares of Acquiror Common Stock in the Company Board referred to in Section 4.03(b)Merger, (ii) approve or recommend the adoption ofrecommend, or propose publicly propose to approve, declare the advisability of approve or recommend the adoption ofrecommend, any Takeover Proposal, Proposal or (iii) cause Target or permit Acquiror, as the Company case may be, to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date into any Takeover Proposal (other than any tender or exchange offer relating to securities of Proposal. Notwithstanding the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Companyforegoing, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable Law, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment the Board of Directors of Target or Acquiror, as the case may be, has fully complied with this Section 5.1 and determines that a Superior Proposal exists, the Board of Directors of Target or Acquiror, as the case may be, to the terms of any Superior Proposal (providedextent required by the fiduciary obligations thereof, that any revision to as determined in the amount, form or mix of consideration the Company’s stockholders would receive as a result good faith judgment of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror Board of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time Directors based on the last day advice of outside counsel, may withdraw or modify its approval or recommendation of the applicable period(s) described above Merger and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless nothing contained herein (including any such withdrawal or modification of such approval or recommendation) shall release or otherwise affect (A) Target's obligation to call and hold the Company shall have first complied with its obligations in Section 6.02(e).
(g) Notwithstanding anything Target Stockholders' Meeting and submit the Merger and this Agreement to the contrary contained in stockholders of Target for their approval or (B) Acquiror's obligation to call and hold the Acquiror's Stockholders' Meeting and submit the Merger and this Section 6.02 or elsewhere in this Agreement, the Company Board may, at any time prior Agreement to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume stockholders of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writtheir approval.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Ashford Com Inc)
No Solicitation. (a) Until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 8.01, the Company shall CGI will not, and shall cause will not permit any of its Subsidiaries and its and their respective Representatives not todirectors, directly officers, employees, agents or indirectly, other representatives (iincluding any financial advisors or attorneys) or those of any of CGI Subsidiary to (a) solicit, initiate, knowingly facilitate or knowingly encourage discussions with any person, other than Genzyme, relating to the submission possible acquisition of CGI or announcement any CGI Subsidiary or of all or a material portion of the assets or capital stock of CGI or any inquiriesCGI Subsidiary or any merger, proposals reorganization, consolidation, business combination, share exchange, recapitalization, dissolution, liquidation or offers that constitute similar transaction involving CGI or would reasonably be expected to lead any CGI Subsidiary (an "Alternative Transaction"), (b) participate in any negotiations regarding, or furnish to any Takeover Proposalother person information with respect to, any effort or attempt by any person to do or to seek any Alternative Transaction or (c) grant any waiver or release under any standstill or similar agreement. Notwithstanding the foregoing, CGI and the Board of Directors of CGI shall be permitted to (i) to the extent applicable, comply with Rule 14e-2(a) under the Exchange Act with regard to an Alternative Transaction and (ii) provide any non-public information concerning the Company or its Subsidiaries to any Person or group in connection with any Takeover Proposal, or engage in any discussions or negotiations with, or provide any information to, a person who makes an unsolicited bona fide written proposal for an Alternative Transaction with respect terms which the Board of Directors of CGI determines in its good faith judgment (after consultation with its financial advisor) to be more favorable to CGI's stockholders than the Merger and for which financing, to the extent required, is then committed, if and only to the extent that, in the case of the actions referred to in clause (ii), (A) CGI is not in breach of its obligations under this Section 4.10, (B) the Board of Directors of CGI concludes in good faith, based on the advice of its outside legal counsel, that the provision of such information or the engaging in such negotiations or discussions is required by the directors' fiduciary duties in accordance with Delaware law and (C) prior to providing any information or data to any Takeover Proposalperson in connection with an Alternative Transaction, the Board of Directors of CGI receives from such person an executed confidentiality agreement with terms substantially similar to those contained in the confidentiality agreement (iiithe "Confidentiality Agreement") approvedated May 7, support1999 between Genzyme and CGI, adoptas amended by the amendment thereto dated July 23, endorse 1999 (except as to standstill provisions, provided that if CGI enters into a confidentiality agreement without standstill provisions or recommend without standstill provisions that are substantially similar to those in the Confidentiality Agreement, then Genzyme shall be relieved of the standstill provisions in the Confidentiality Agreement). CGI shall notify Genzyme promptly (and, in any Takeover Proposalcase, (ivwithin one business day) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” written inquiries, proposals or other similar anti-takeover statute or regulation (including offers received by, any transaction underinformation requested from, or any discussions or negotiations sought to be initiated or continued with, any of its representatives concerning an Alternative Transaction, indicating, in connection with such notice, the name of such person and the material terms and conditions of any proposals or offers. CGI agrees that it will keep Genzyme informed, on a third party becoming an “interested stockholder” underprompt basis (and, Section 203 in any case, within one business day), of the Corporation Law) inapplicable to any Person other than Acquiror status and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in terms of any such inquiries, proposals, offers, proposals or offers and the status of any such discussions or negotiations, or (vi) resolve or agree to do any of the foregoing. The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, CGI agrees that it will immediately cease and cause to be terminated any solicitationexisting activities, encouragement, discussion discussions or negotiation negotiations with any Person or groups that may be ongoing parties conducted heretofore with respect to any Takeover Proposal proposed Alternative Transaction or potential Takeover Proposalsimilar transaction or arrangement and will not waive any rights under any confidentiality agreements entered into with such parties. The Company shall promptly after CGI agrees that it will take the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal necessary steps to promptly return inform the individuals or entities referred to in the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company or any of its Subsidiaries or any of its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions first sentence of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as 4.10 of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received a bona fide, written Takeover Proposal from any Person or group that did not result from a breach of this Section 6.02, and (ii) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or could reasonably be expected to result in a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, (A) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group making such Takeover Proposal; provided, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable Law, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e).
(g) Notwithstanding anything to the contrary contained undertaken in this Section 6.02 or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writ4.10.
Appears in 1 contract
Sources: Merger Agreement (Cell Genesys Inc)
No Solicitation. (a) Until the earlier of the Effective Time The Company and the valid termination of this Agreement pursuant its subsidiaries and their respective officers, directors, employees, representatives, agents or affiliates shall cease any discussion or negotiations with any parties that may be ongoing with respect to Section 8.01, the an Acquisition Proposal (as hereinafter defined). The Company shall not, nor shall it permit any of its subsidiaries to, and it shall use its best efforts to cause its Subsidiaries and its and their respective Representatives officers, directors, employees, agents or affiliates not to, directly or indirectly, (i) solicit, initiate, knowingly facilitate initiate or knowingly encourage (including by way of furnishing information, other than the submission Company SEC Documents), or announcement knowingly take any other action to facilitate, any inquiries or the making of any inquiriesproposal which constitutes, proposals or offers that constitute or would may reasonably be expected to lead to to, any Takeover ProposalAcquisition Proposal (as defined in this Section 6.9(a)), or (ii) provide any non-public information concerning the Company or its Subsidiaries to any Person or group in connection with any Takeover Proposal, or engage participate in any discussions or negotiations with respect to regarding any Takeover Acquisition Proposal; PROVIDED, (iii) approveHOWEVER, support, adopt, endorse or recommend any Takeover Proposal, (iv) take any action to make that if the provisions Board of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve or agree to do any of the foregoing. The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with any Person or groups that may be ongoing with respect to any Takeover Proposal or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company or any of its Subsidiaries or any of its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None Directors of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received a bona fide, written Takeover Proposal from any Person or group that did not result from a breach of this Section 6.02, and (ii) the Company Board determines in good faith, after consultation with its financial advisor with, and based on the advice of outside legal counsel, that such Takeover Proposal constitutes or could reasonably be expected it is required to result do so in a Superior Proposalorder to comply with its fiduciary duties to the Company's stockholders under applicable law, then the Company may, upon receipt of in response to an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover unsolicited Acquisition Proposal, and subject to compliance with Section 6.9(c), (Ax) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the any Person or group making such Takeover Proposal; providedunsolicited Acquisition Proposal pursuant to an executed confidentiality agreement with such Person containing terms substantially similar to those in the letter dated December 31, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror 1997 with Parent, and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage participate in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Acquisition Proposal; provided, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date . For purposes of this Agreement, provide "Acquisition Proposal" means any bona fide proposal or offer from any Person relating to any merger, consolidation, business combination, sale of a significant amount of assets outside of the material terms and conditions ordinary course of any such inquirybusiness, proposalsale of shares of capital stock, offer or request and the nature of such request, and thereafter including the Company shall keep Acquiror reasonably informed on a prompt and timely basis Preferred Stock, outside of the status and material details ordinary course of discussions with respect theretobusiness, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of similar transaction involving the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable Law, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Lawsubsidiaries.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e).
(g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writ
Appears in 1 contract
No Solicitation. (a) Until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 8.01, the Company shall not, and shall cause its Subsidiaries each Company Subsidiary and its each director, officer, employee, agent or other representative (including each financial advisor and their respective Representatives attorney) of Company and each Company Subsidiary not to, directly or indirectly, (ia) solicit, initiate, knowingly facilitate facilitate, assist or knowingly encourage action by, or discussions with, any person, other than Parent, relating to the submission possible acquisition of Company or announcement any Company Subsidiary or of all or a material portion of the assets or capital stock of Company or any inquiriesCompany Subsidiary or any merger, proposals reorganization, consolidation, business combination, share exchange, tender offer, recapitalization, dissolution, liquidation or offers that constitute similar transaction involving Company or would reasonably be expected to lead to any Takeover ProposalCompany Subsidiary (an "Alternative Transaction"), (iib) provide any non-public information concerning the Company or its Subsidiaries to any Person or group in connection with any Takeover Proposal, or engage in any discussions or negotiations with respect to any Takeover Proposal, (iii) approve, support, adopt, endorse or recommend any Takeover Proposal, (iv) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiationsnegotiations regarding, or (vi) resolve furnish information with respect to, any effort or agree attempt by any person to do any of the foregoing. The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with any Person or groups that may be ongoing with respect to any Takeover Proposal or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company seek any Alternative Transaction or (c) grant any of its Subsidiaries waiver or release under any of its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in agreement. Notwithstanding the Confidentiality Agreement shallforegoing, as Company and the Board of Directors of Company shall be permitted (i) to comply with Rule 14e-2(a) under the date of this Agreement, terminate and be of no further force and effect solely Exchange Act with regard to an Alternative Transaction (to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(bapplicable) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received a bona fide, written Takeover Proposal from any Person or group that did not result from a breach of this Section 6.02, and (ii) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or could reasonably be expected to result in a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, (A) furnish information (including non-public information) with respect prior to the date on which the stockholders of Company and its Subsidiaries adopt this Agreement, to the Person or group making such Takeover Proposal; provided, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; providedwith, howeveror provide information to, that prior to or concurrently with the Company taking such actions as described in clauses a person who makes an unsolicited BONA FIDE written proposal for an Alternative Transaction if (and only if) (A) and/or Company is not in breach of its obligations under this Section 4.10, (B) above, the Board of Directors of Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable Law, (x) the Company Board determines concludes in good faith (after consultation with its outside legal counsel and financial advisorsadvisor) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends proposal is reasonably likely to accept or recommend such Superior Proposal, lead to an Alternative Transaction more favorable for Company's stockholders than the Mergers (y) the Company shall have provided prior written notice including adjustment to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant proposed by Parent in response to the following provisoproposal for the Alternative Transaction), (C) the Board of Directors of Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined concludes in good faith (after consultation with its outside legal counsel and financial advisorscounsel, who may be Company's regularly engaged legal counsel) that engaging in such negotiations or discussions or providing such information is necessary for the failure Board of the Company Board to effect an Adverse Recommendation Change or the Directors of Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent comply with the exercise of its directors' fiduciary duties under applicable Law.
Delaware law and (fD) Nothing prior to providing any information or data, the recipient delivers to Company an executed confidentiality agreement with terms no less favorable to Company than those contained in this the Mutual Confidential Disclosure Agreement shall prohibit dated as of July 23, 2003 (as amended, the "Confidentiality Agreement") between Parent and Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect related to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(apotential business combination transaction. Company shall notify Parent promptly (and, in any case, within 24 hours) promulgated under the Exchange Act of any inquiries, proposals or from issuing a “stopoffers received by, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunderany information requested from, and the issuance any discussions or negotiations sought to be initiated or continued with, it, any Company Subsidiary or any of any such communication shall nottheir directors, officers, employees, agents or other representatives concerning an Alternative Transaction, indicating, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied connection with its obligations in Section 6.02(e).
(g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreementsuch notice, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as names of the date of this Agreement parties and does not relate to any Takeover Proposal or the material terms and conditions of this Agreementany proposals or offers and, which eventin the case of written materials, development providing copies of such materials unless such information or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any materials constitute confidential information of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of party under a confidentiality agreement effective on the date of this Agreement, in which case versions will be provided redacted to the minimum extent possible. Company agrees that it shall keep Parent informed, on a reasonably prompt basis (and, in any case, within 24 hours of any significant development), of the status and terms of any such Intervening Event was reasonably foreseeable proposals or reasonably likely offers and the status of any such discussions or negotiations. Company agrees that it shall cease and cause to occur be terminated any existing activities, discussions or arise after negotiations with respect to any potential Alternative Transaction or similar transaction or arrangement and request the date return or destruction of all confidential information regarding Company, any Company Subsidiary, or any of it or their products, product candidates, or businesses previously provided in connection with such activities, discussions or negotiations. Company agrees that it shall take the necessary steps to promptly inform the individuals or entities referred to in the first sentence of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting Section 4.10 of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines obligations undertaken in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writthis Section 4.10.
Appears in 1 contract
Sources: Merger Agreement (Genzyme Corp)
No Solicitation. (a) Until Except as set forth in this Section 4.4, until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 8.01Specified Time, the Company Seller shall not, and shall use all reasonable efforts to cause its Subsidiaries and its and their respective Representatives not to, directly or indirectly, :
(i) solicit, initiate, initiate or knowingly facilitate or knowingly encourage any inquiries or the submission or announcement making of any inquiriesproposal or offer that constitutes, proposals or offers that constitute or would could reasonably be expected to lead to to, any Takeover Acquisition Proposal, ;
(ii) provide enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person any non-public information concerning for the Company purpose of encouraging or its Subsidiaries to facilitating, any Person Acquisition Proposal; or
(iii) grant any waiver or group in connection with release under any Takeover Proposal, standstill or engage in any discussions or negotiations similar agreement with respect to any Takeover Proposal, (iii) approve, support, adopt, endorse or recommend any Takeover Proposal, (iv) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve or agree to do any of the foregoing. The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with any Person or groups that may be ongoing with respect to any Takeover Proposal or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company or any of its Subsidiaries or any of its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02Seller's securities. Notwithstanding anything to the contrary contained set forth in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, response to the Knowledge of the Company, is considering making, a Takeover an unsolicited Acquisition Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received a bona fide, written Takeover Proposal from any Person or group that did not result from a breach of this Section 6.024.4, and subject to its compliance with Section 4.4(c), the Seller may (A) furnish information with respect to the Seller to any Person (and the Representatives of such Person) making an Acquisition Proposal that the Seller's board of directors determines in good faith (after consultation with outside counsel and its financial advisors) is reasonably likely to lead to a Superior Proposal, pursuant to a customary confidentiality agreement not materially less restrictive of the other party than the Confidentiality Agreement (which need not have standstill provisions), (B) engage in discussions or negotiations (including solicitation of a revised Acquisition Proposal) with such Person and its Representatives regarding any such Acquisition Proposal, and (C) amend, or grant a waiver or release under, any standstill or similar agreement with respect to any of Seller's Common Stock, subject to the Seller's board of directors having determined in good faith, after consultation with outside counsel, that failing to release such third party or waive such provisions would reasonably be expected to be inconsistent with the fiduciary duties of the Seller's board of directors under applicable Law.
(b) Prior to the Specified Time, the Seller's board of directors shall not:
(i) except as set forth in this Section 4.4, withhold, withdraw or modify, in a manner adverse to the Buyer, the approval or recommendation by the Seller's board of directors with respect to the Voting Proposal;
(ii) cause or permit the Company Board Seller to enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement providing for the consummation of a transaction contemplated by any Acquisition Proposal (other than a confidentiality agreement referred to in Section 4.4(a) entered into in the circumstances referred to in Section 4.4(a)); or
(iii) except as set forth in this Section 4.4, adopt, approve or recommend any Acquisition Proposal. Notwithstanding anything to the contrary set forth in this Agreement, the Seller's board of directors may withhold, withdraw or modify its recommendation with respect to the Voting Proposal or approve or recommend any Superior Proposal only if the Seller's board of directors determines in good faith, after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or could reasonably failure to do so would be expected to result in a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, (A) furnish information (including non-public information) inconsistent with respect to the Company and its Subsidiaries to the Person or group making such Takeover Proposal; provided, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality fiduciary obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposalunder applicable Law.
(c) The Company Seller shall promptly (andadvise the Buyer orally, in with written confirmation to follow, of the Seller's receipt of any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover written Acquisition Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer or request Acquisition Proposal and the nature identity of the Person making any such requestAcquisition Proposal. Subject to the fiduciary duties of the Seller's board of directors, and thereafter the Company Seller shall keep Acquiror the Buyer promptly advised of all developments that would reasonably informed on a prompt and timely basis be expected to culminate in the Seller's board of directors withdrawing, modifying or amending the recommendation of the status and material details Seller's board of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality directors in favor of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as Voting Proposal or terminating this Agreement in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror accordance with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposalterms.
(d) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the contrary Nothing contained in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change Section 4.4 or elsewhere in response to a Superior Proposal if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable Law, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law.
(f) Nothing contained in this Agreement shall prohibit the Company Seller from (i) negotiating or the Company Board from entering any agreement with respect to a Reverse Merger Transaction or (ii) taking and disclosing to the Company’s its stockholders a position with respect to a tender offer contemplated by a third party pursuant to Rules Rule 14d-9 and 14e-2(a) or Rule 14e-2 promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under making any disclosure to the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall notSeller's stockholders if, in and the good faith judgment of itselfthe Seller's board of directors, constitute an Adverse Recommendation Change for purposes of this Agreement; providedafter consultation with outside counsel, however, that no Adverse Recommendation Change may failure to so disclose would be made unless the Company shall have first complied inconsistent with its obligations in Section 6.02(e)under applicable Law.
(ge) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this AgreementThe Seller shall, the Company Board mayand shall direct its Representatives to, at any time cease immediately all discussions and negotiations that commenced prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances regarding any proposal that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstanceconstitutes, or any material consequences thereof, becomes known would reasonably be expected to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence oflead to, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writAcquisition Proposal.
Appears in 1 contract
No Solicitation. (a) Until the earlier None of the Effective Time and the valid termination of this Agreement pursuant to Section 8.01Company, the Company shall not, and shall cause its Subsidiaries and or any officer, director, employee, agent or representative (including any investment banker, financial advisor, attorney, accountant or other representative) of Company or any of its and their respective Representatives not to, Subsidiaries shall directly or indirectly, indirectly (i) solicit, initiate, knowingly encourage, facilitate (including by way of furnishing information) or knowingly encourage take any other action designed to facilitate any inquiries or proposals regarding any merger, share exchange, <PAGE> consolidation, sale of assets, sale of shares of capital stock (including by way of a tender offer) or similar transactions involving Company or any of its Subsidiaries that, if consummated, would constitute an Alternative Transaction (any of the submission foregoing inquiries or announcement proposals, including the indication of any inquiriesintention to propose any of the foregoing, proposals being referred to herein as an "Alternative Proposal"), (ii) participate in any discussions or offers negotiations regarding an Alternative Transaction or (iii) enter into any agreement regarding any Alternative Transaction. Notwithstanding the foregoing, the Board of Directors of Company shall be permitted, prior to the meeting of Company stockholders to be held pursuant to Section 6.3, and subject to compliance with the other terms of this Section 6.9 (including but not limited to the preceding sentence) and to first entering into a confidentiality agreement with the person proposing such Alternative Proposal on terms substantially similar to, and no less favorable to Company than, those contained in the Confidentiality Agreement, to consider and participate in discussions and negotiations and provide information with respect to a bona fide Alternative Proposal received by Company, if and only to the extent that constitute and so long as the Board of Directors of Company reasonably determines in good faith (after consultation with outside legal counsel) that failure to do so would cause it to violate its fiduciary duties to Company stockholders under applicable law. As used in this Agreement, "Alternative Transaction" means any of
(i) a transaction pursuant to which any person (or group of persons) (other than Parent or its affiliates), directly or indirectly, acquires or would acquire more than 15% of the outstanding shares of Company or any of its Subsidiaries or outstanding voting power or of any new series or new class of preferred stock that would be entitled to a class or series vote with respect to a merger with Company or any of its Subsidiaries, whether from Company or pursuant to a tender offer or exchange offer or otherwise, (ii) a merger, share exchange, consolidation or other business combination involving Company or any of its Subsidiaries (other than the Merger), (iii) any transaction pursuant to which any person (or group of persons) (other than Parent or its affiliates) acquires or would acquire control of assets (including for this purpose the outstanding equity securities of subsidiaries of Company and securities of the entity surviving any merger or business combination including any of Company's Subsidiaries) of Company or any of its Subsidiaries representing more than 15% of the fair market value of all the assets, net revenues or net income of Company and its Subsidiaries, taken as a whole, immediately prior to such transaction, or (iv) any other consolidation, business combination, recapitalization or similar transaction involving Company or any of its Subsidiaries other than the transactions contemplated by this Agreement.
(b) Company shall notify Parent promptly (but in no event later than 48 hours) after receipt of any Alternative Proposal, or any material modification of or material amendment to any Alternative Proposal, or any request for nonpublic information relating to Company or any of its Subsidiaries or for access to the properties, books or records of Company or any of its Subsidiaries, other than any such request that does not relate to and would not reasonably be expected to lead to, an Alternative Proposal. Such notice to any Takeover ProposalParent shall be made orally and in writing, (ii) provide any and shall indicate the identity of the person making the Alternative Proposal or intending to make or considering making an Alternative Proposal or requesting non-public information concerning or access to the books and records of Company or any of its Subsidiaries Subsidiaries, and a copy (if in writing) and summary of the material terms of any such Alternative Proposal or modification or amendment to an Alternative Proposal. Company shall keep Parent fully informed, on a current <PAGE> basis, of any Person material changes in the status and any material changes or group modifications in connection with the terms of any Takeover such Alternative Proposal, indication or engage in request. Company shall also provide Parent 24 hours written notice before it enters into any discussions or negotiations concerning any Alternative Proposal in accordance with respect to any Takeover Proposal, Section 6.9(a).
(iiic) approve, support, adopt, endorse or recommend any Takeover Proposal, (iv) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the Corporation Law) inapplicable to any Person other than Acquiror Company and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve or agree to do any of the foregoing. The Company shall, and Subsidiaries shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion existing discussions or negotiation negotiations with any Person or groups that may be ongoing persons (other than Parent) conducted heretofore with respect to any Takeover of the foregoing, and shall use reasonable best efforts to cause all persons other than Parent who have been furnished confidential information regarding Company in connection with the solicitation of or discussions regarding an Alternative Proposal or potential Takeover Proposal. The Company shall promptly after within the 12 months prior to the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating promptly to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents such information. Company agrees not to, and materials relating to the Takeover Proposal or to the Company or any of cause its Subsidiaries or not to, release any third party from the confidentiality and standstill provisions of its and their respective businesses, operations or affairs heretofore furnished by the any agreement to which Company or its Subsidiaries is or may become a party, and shall immediately take all steps necessary to terminate any approval that may have been heretofore given under any such provisions authorizing any person to make an Alternative Proposal. Neither Company nor the Board of Directors of Company shall approve or take any action to render inapplicable to any Alternative Proposal or Alternative Transaction Section 203 of the DGCL or any similar Takeover Statutes.
(d) Except as expressly permitted by this Section 6.9(d), neither the Board of their respective Representatives Directors of Company nor any committee thereof shall (i) withdraw, modify or qualify, or propose publicly to withdraw, modify or qualify, the recommendation by the Board of Directors of Company of this Agreement and/or the Merger to Company's stockholders, (ii) take any public action or make any public statement in connection with the meeting of Company stockholders to be held pursuant to Section 6.3 inconsistent with such recommendation or (iii) approve or recommend, or publicly propose to approve or recommend, or fail to recommend against, any Alternative Proposal (any of the actions described in clauses (i), (ii) or (iii), a "Change of Recommendation"). Notwithstanding the foregoing, the Board of Directors of Company may make a Change of Recommendation, if, and only if, each of the following conditions is satisfied:
(i) it receives an unsolicited Alternative Proposal that constitutes a Superior Proposal and such Superior Proposal has not been withdrawn;
(ii) Company has not breached any of the provisions set forth in Section 6.3 or this Section 6.9;
(iii) it reasonably determines in good faith (after consultation with outside legal counsel), that in light of a Superior Proposal the failure to effect such Change of Recommendation would cause it to violate its fiduciary duties to Company stockholders under applicable law;
(iv) Parent has received written notice from Company (a "Change of Recommendation Notice") at least five business days prior to such Person Change of Recommendation, which notice shall (1) state expressly that Company has received a Alternative Proposal which the Board of Directors of Company has determined is a Superior Proposal and that Company intends to effect a Change of Recommendation and <PAGE> the manner in which it intends or group or any may intend to do so and (2) include the identity of the person making such Alternative Proposal and a copy (if in writing) and summary of material terms of such Person’s or group’s Representatives in accordance with Alternative Proposal; provided that any material amendment to the terms of such confidentiality agreementAlternative Proposal shall require a Change of Recommendation Notice at least two business days prior to such Change of Recommendation; and
(v) during any such notice period, Company and its advisors have negotiated in good faith with Parent to make adjustments in the terms and conditions of this Agreement such that such Alternative Proposal would no longer constitute a Superior Proposal. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained As used in this Agreement, "Superior Proposal" means any proposal made by a third party (A) to acquire, directly or indirectly, for consideration consisting of cash and/or securities, 100% of the outstanding shares of Company Common Stock or 100% of the assets, net revenues or net income of Company and its Representatives may in any event inform Subsidiaries, taken as a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received a bona fide, written Takeover Proposal from any Person or group that did not result from a breach of this Section 6.02, whole and (iiB) which is otherwise on terms which the Board of Directors of Company Board determines in its reasonable good faith, faith judgment (after consultation with its financial advisor and outside legal counsel), taking into account, among other things, all legal, financial, regulatory and other aspects of the proposal and the person making the proposal, that such Takeover Proposal constitutes or could reasonably be expected to the proposal, (i) if consummated would result in a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, (A) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group making such Takeover Proposal; provided, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries transaction that is provided more favorable, from a financial point of view, to (or access which is given to) any Person or group Company's stockholders than the Merger and which was not previously provided to Acquiror the other transactions contemplated hereby and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) aboveis reasonably capable of being completed, together with (subject including to the existing terms of confidentiality obligations extent required, financing which is then committed or which, in the good faith judgment of the Company as in place as Board of the date Directors of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could is reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with capable of being obtained by such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”)third party.
(e) Notwithstanding anything to Company shall ensure that the contrary officers, directors and all employees, agents and representatives (including any investment bankers, financial advisors, attorneys, accountants or other representatives) of Company or its Subsidiaries are aware of the restrictions described in this Agreement, at Section 6.9 as reasonably necessary to avoid violations thereof. It is understood that any time prior to violation of the Acceptance Time, the Company Board may effect an Adverse Recommendation Change restrictions set forth in response to a Superior Proposal if and only if: (v) the Company has complied with the other provisions of this Section 6.026.9 by any officer, director, employee, agent or representative (wincluding any investment banker, financial advisor, attorney, accountant or other representative) the of Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable Law, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror breach of such material revision in compliance with this Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing 6.9 by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable LawCompany.
(f) Nothing contained in this Agreement Section 6.9 shall prohibit the Company or the Company Board its Subsidiaries from taking and disclosing to the Company’s its stockholders a position with respect to a tender offer required by a third party pursuant to Rules 14d-9 and Rule 14e-2(a) or Rule 14d-9 promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e)Act.
(g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writ
Appears in 1 contract
Sources: Merger Agreement
No Solicitation. (a) Until the earlier None of the Effective Time and the valid termination of this Agreement pursuant to Section 8.01Seller, the Company shall not, and shall cause its Subsidiaries and or any officer, director, employee, agent or representative (including any investment banker, financial advisor, attorney, accountant or other retained representative) of Seller or any of its and their respective Representatives not to, Subsidiaries shall directly or indirectly, indirectly (i) solicit, initiate, knowingly encourage, facilitate (including by way of furnishing information) or knowingly encourage take any other action designed to facilitate any inquiries or proposals regarding any merger, share exchange, consolidation, sale of assets, sale of shares of capital stock (including by way of a tender offer) or similar transaction involving Seller or any of its Subsidiaries that, if consummated, would constitute an Alternative Transaction (any of the submission foregoing inquiries or announcement of any inquiries, proposals or offers that constitute or would reasonably be expected being referred to lead to any Takeover herein as an “Alternative Proposal”), (ii) provide any non-public information concerning the Company or its Subsidiaries to any Person or group in connection with any Takeover Proposal, or engage participate in any discussions or negotiations with respect to any Takeover Proposalregarding an Alternative Transaction, or (iii) approve, support, adopt, endorse or recommend enter into any Takeover Proposal, (iv) take agreement regarding any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve or agree to do any of the foregoingAlternative Transaction. The Company Seller shall, and shall cause each of the Subsidiaries and representatives of Seller and its Subsidiaries and its and their respective Representatives to, (A) immediately cease and cause to be terminated any solicitation, encouragement, discussion all existing discussions or negotiation negotiations with any Person or groups that may be ongoing person conducted heretofore with respect to any Takeover Proposal Alternative Proposal, (B) request the prompt return or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person destruction of all confidential information previously furnished in connection therewith and (if anyC) that has heretofore executed a not terminate, waive, amend, release or modify any provision of any confidentiality or standstill agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover any Alternative Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company which it or any of its Subsidiaries or is a party, and shall enforce the provisions of any of its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of Notwithstanding the Company or its Subsidiaries shall enter into foregoing, if at any confidentiality agreement subsequent to time after the date hereof which prohibits but before approval of this Agreement by Seller’s shareholders, (1) Seller receives an unsolicited written Alternative Proposal that the Company or any of its Subsidiaries from providing to Acquiror the information required Seller Board believes in good faith to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to bona fide, (2) such Alternative Proposal was not the contrary contained in this Agreement, the Company and its Representatives may in any event inform result of a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions violation of this Section 6.02. The Company 6.9, (3) the Seller Board determines in good faith (after consultation with outside counsel and Acquiror hereby agree its financial advisor) that all standstill such Alternative Proposal constitutes or is reasonably likely to lead to a Superior Proposal and (4) the Seller Board determines in good faith (after consultation with outside counsel) that the failure to take the actions referred to in clause (x) or (y) below would be reasonably likely to violate its fiduciary duties under applicable law, then Seller may (and may authorize its Subsidiaries and representatives to) (x) furnish nonpublic information regarding Seller and its Subsidiaries to the person making such Alternative Proposal (and its representatives) pursuant to a customary confidentiality agreement containing terms substantially similar provisions to, and no less favorable to Seller than, those contained in the Confidentiality Agreement shall(provided, as of the date of this Agreement, terminate and be of no further force and effect solely that any nonpublic information provided to the extent necessary any person given such access shall have been previously provided to allow Acquiror to effect the transactions contemplated Buyer or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed provided to limit Buyer before or concurrently with the ability of Acquiror or any of its Affiliates time it is provided to take any action contemplated this Agreementsuch person), and (y) participate in discussions and negotiations with the person making such Alternative Proposal.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received a bona fide, written Takeover Proposal from any Person or group that did not result from a breach of this Section 6.02, and (ii) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or could reasonably be expected to result in a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, (A) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group making such Takeover Proposal; provided, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board Except as provided for in clause (ii) aboveotherwise below, together with (subject to neither the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither the Company Seller Board nor any committee thereof shall may (ii)(A) withdraw or rescind (or modify or qualify in a any manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)Buyer) or any material modification thereto is first made public or sent or given refuse to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation recommend approval of this Agreement, the Offer and the Merger, and Agreement to Seller’s shareholders or (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (oradopt, if earlierapprove, prior to recommend, endorse or otherwise declare advisable the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement adoption of any tender or exchange offer relating to securities of the Company Alternative Proposal (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of each such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of action set forth in this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (viiSection 6.9(b)(i) being referred to as an “Adverse Recommendation Change”).
, or (eii) cause or permit Seller or any of its Subsidiaries to enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other agreement constituting or related to, or that is intended to or is reasonably likely to lead to, any Alternative Proposal (other than a confidentiality agreement permitted by Section 6.9(a)). Notwithstanding anything to the contrary in this Agreementforegoing, at any time prior to before obtaining approval of the Acceptance TimeMerger by Seller’s shareholders, the Company Seller Board may effect an Adverse Recommendation Change in response to a Superior Proposal may, if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Seller Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action do so would be inconsistent with the exercise of reasonably likely to violate its fiduciary duties under applicable Lawlaw, taking into account all adjustments to the terms of this Agreement that may be offered by Buyer under this Section 6.9(b), make an Adverse Recommendation Change; provided, that Seller may not make any Adverse Recommendation Change in response to an Alternative Proposal unless (x) the Company Seller shall not have breached this Section 6.9 in any respect and (y):
(i) The Seller Board determines in good faith (after consultation with its outside legal counsel and its financial advisorsadvisor) that the applicable Takeover such Alternative Proposal constitutes is a Superior Proposal and that it intends to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, been made and has caused its Subsidiaries not been withdrawn and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change continues to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes be a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment after taking into account all adjustments to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e).
(g) Notwithstanding anything to the contrary contained in offered by Buyer under this Section 6.02 or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”6.9(b); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writ;
Appears in 1 contract
Sources: Merger Agreement (Ecb Bancorp Inc)
No Solicitation. (a) Until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 8.01, the The Company shall will not, and shall cause will not authorize or permit its Subsidiaries directors, officers, employees, advisors and its and their respective Representatives not investment bankers (with respect to any person, the foregoing persons are referred to herein as such person’s “Representatives”) to, directly or indirectly, (i) solicit, initiate, initiate or knowingly take any action to facilitate or knowingly encourage the submission or announcement of any inquiries, proposals or offers that constitute or would reasonably be expected to lead to any Takeover Proposal, (ii) provide any non-public information concerning the Company or its Subsidiaries to any Person or group in connection with any Takeover Proposal, or engage in any discussions or negotiations with respect to any Takeover Proposal, (iii) approve, support, adopt, endorse or recommend any Takeover Proposal, (iv) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve or agree to do any of the foregoing. The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with any Person or groups that may be ongoing with respect to any Takeover Proposal or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person (if any) making of any proposal that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company or any of its Subsidiaries or any of its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received a bona fide, written Takeover Proposal from any Person or group that did not result from a breach of this Section 6.02, and (ii) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or could reasonably be expected to result in a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, (A) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group making such Takeover Proposal; provided, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or, subject to Section 5.3(b), (i) enter into, participate or engage in, or maintain or continue any initial request for discussions or negotiations relating to, any Takeover Proposal with any person other than Parent or Merger Sub, (ii) furnish to any person other than Parent or Merger Sub any non-public information concerning that the Company believes would be used for the purposes of formulating or furthering any Takeover Proposal, (iii) amend or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company, or (iv) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Takeover Proposal (each, a “Company Acquisition Agreement”). The Company will cease immediately and cause to be terminated, and will not authorize or knowingly permit any of its or their Representatives to continue, any and all existing activities, discussions or negotiations, if any, with any third party conducted prior to the date hereof with respect to any Takeover Proposal and will use its reasonable efforts to cause any such third party (or its Subsidiaries from Agents) in possession of non-public information in respect of the Company that was furnished by or on behalf of the Company to return or destroy (and confirm destruction of) all such information.
(b) Notwithstanding Section 5.3(a), prior to the receipt of the Requisite Company Vote, the Company Board, directly or indirectly through any Person Representative, may (i) participate in negotiations or group who has made discussions with any third party that makes a bona fide, unsolicited Takeover Proposal that the Company Board believes in good faith, after consultation with outside legal counsel and an independent financial advisor, constitutes or would reasonably be expected to make result in a Superior Proposal, (ii) thereafter furnish to such third party non-public information relating to the Company pursuant to an executed confidentiality agreement that constitutes an Acceptable Confidentiality Agreement (a copy of which confidentiality agreement will be promptly provided for informational purposes only to Parent), and/or (iii) take any action that any court of competent jurisdiction orders the Company to take.
(c) The Company will notify Parent promptly after receipt by the Company (or any of its Representatives) of any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with . In such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as will identify the third party making, and provide a reasonably detailed summary of the date of this Agreement, provide the material terms and conditions of of, any such inquiry, proposal, offer or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither Subject to Sections 5.3(e), (f) and (g), from the date hereof to the earlier to occur of the termination of this Agreement in accordance with its terms and the Effective Time, neither the Company Board nor any committee thereof shall will (i) withhold, change, amend, withdraw or rescind qualify (or modify or qualify in a manner adverse to Acquiror Parent) or Merger Sub), or publicly propose to withhold, change, amend, withdraw or rescind qualify (or modify or qualify in a manner adverse to Acquiror Parent) the approval, recommendation or Merger Sub), declaration of advisability by the Company Board Recommendation or any such committee of this Agreement, the findings Merger or conclusions any of the Company Board other transactions contemplated hereby (each such action set forth in this Section 5.3(d)(i) being referred to in Section 4.03(bas a “Change of Board Recommendation”), ; (ii) approve adopt, approve, recommend or recommend otherwise declare advisable the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, publicly propose to adopt, approve or recommend any Takeover Proposal or publicly take a neutral position or no position with respect to a Takeover Proposal; (iii) cause submit any Takeover Proposal or permit any matter related thereto to the vote of the shareholders of the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose resolve or announce an intention agree to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation actions described in the Schedule 14D-9 when disseminated to the Company’s stockholders or foregoing clauses (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”i)-(iii).
(e) Notwithstanding anything to the contrary in this Agreementcontained herein, at any time but subject to Sections 5.3(f) and 5.3(g), prior to the Acceptance Timedate of approval of this Agreement by the shareholders of the Company, the Company Board may effect an Adverse Recommendation a Change in response to a Superior Proposal of Board Recommendation:
(i) if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable Law, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e).
(g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counselcounsel and its independent financial advisor, that, in light of such an Intervening Event, the failure to make an Adverse Recommendation Change take such action would reasonably be inconsistent with expected to breach the exercise of its fiduciary duties owed by the Company Board to the shareholders of the Company under applicable Law; or
(vii) no Adverse if the Company Board reasonably determines in good faith, after consultation with outside legal counsel and its independent financial advisor, that, in light of the Company’s receipt of a Superior Proposal, the failure to take such action would reasonably be expected to breach the fiduciary duties owed by the Company Board to the shareholders of the Company under applicable Law.
(f) If the Company Board intends to effect a Change of Board Recommendation as a result of an Intervening Event, prior to making such Change has been made for three of Board Recommendation, the Company will (3a) provide written notice to Parent (an “Intervening Event Notice”) advising Parent that the Company Board intends to make such Change of Board Recommendation and specifying the nature of the Intervening Event and (b) to the extent possible given the nature of the Intervening Event, negotiate with and cause its financial and legal advisors to negotiate with Parent and its representatives in good faith during the five (5) Business Days Day period after receipt Parent receives the Intervening Event Notice (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement, so that the Company Board would not be required to make such Change of Board Recommendation in order to meet its fiduciary duties owed to the shareholders of the Company under applicable Law.
(g) If the Company receives a Superior Proposal, it will (a) provide written notice to Parent (a “Superior Proposal Notice”) advising Parent that the Company Board has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal, identifying the party making such Superior Proposal and indicating that the Company Board intends to effect a Change of Board Recommendation and (b) negotiate with and cause its financial and legal advisors to negotiate with Parent and its representatives in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement, so that such third party proposal or offer would cease to constitute a Superior Proposal. The Company may only accept a Superior Proposal if, following the end of the five (5) Business Day period after Parent receives the Superior Proposal Notice, the Company Board (based upon advice by Acquiror its outside financial advisor and legal counsel), determines in good faith, taking into account any changes to this Agreement proposed in writing by Parent in response to the Superior Proposal Notice or otherwise, that the Superior Proposal giving rise to the Superior Proposal Notice continues to constitute a Superior Proposal; provided, that any material modifications to such third party proposal or offer that the Company Board has determined to be a Superior Proposal will be deemed a new Superior Proposal and the Company will be required to again comply with the requirements of a writthis section.
Appears in 1 contract
No Solicitation. (a) Until From and after the earlier of date hereof until the Effective Time and the valid termination of this Agreement pursuant to Section 8.01, neither the Company shall notor any of its Subsidiaries, and shall cause its Subsidiaries and its and nor any of their respective Representatives not toofficers, directors, employees, representatives, agents or affiliates (including, without limitation, any investment banker, attorney or accountant retained by the Company or any of its Subsidiaries) will directly or indirectly, (i) solicit, indirectly initiate, knowingly facilitate solicit or knowingly encourage (including by way of furnishing non-public information or assistance), or take any other action to facilitate knowingly, any inquiries or the submission or announcement making of any inquiriesproposal that constitutes, proposals or offers that constitute or would may reasonably be expected to lead to any Takeover Proposal, (ii) provide any non-public information concerning the Company or its Subsidiaries to any Person or group in connection with any Takeover Transaction Proposal, or engage in any enter into or maintain or continue discussions or negotiations negotiate with respect to any Takeover Proposal, (iii) approve, support, adopt, endorse person or recommend any Takeover Proposal, (iv) take any action to make the provisions entity in furtherance of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates such inquiries or to any transactions constituting or contemplated by obtain a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve Transaction Proposal or agree to do or endorse any Transaction Proposal or authorize or permit any of the foregoing. The Company shallits officers, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion directors or negotiation with any Person or groups that may be ongoing with respect to any Takeover Proposal or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company employees or any of its Subsidiaries or any of its and their respective businessesinvestment banker, operations financial advisor, attorney, accountant or affairs heretofore furnished other representative retained by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received a bona fide, written Takeover Proposal from any Person or group that did not result from a breach of this Section 6.02, and (ii) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or could reasonably be expected to result in a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, (A) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group making such Takeover Proposal; provided, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposalaction; provided, however, that prior nothing contained in this Agreement shall prohibit the Board of Directors of the Company (or, if applicable, the Special Committee) from (i)furnishing information to or concurrently with entering into discussions or negotiations with, any person or entity that makes an unsolicited written, bona fide proposal, to acquire the Company taking such actions as described in clauses and/or its Subsidiaries pursuant to a merger, consolidation, share exchange, business combination, tender or exchange offer or other similar transaction if, and only to the extent that (A) and/or the Board of Directors of the Company (or the Special Committee), after consultation with and based upon the advice of independent legal counsel (who may be the Company's regularly engaged independent legal counsel) determines in good faith that such action is necessary for the Board of Directors of the Company to comply with its fiduciary duties to stockholders under applicable law and (B) above, prior to taking such action the Company shall provide written (x) provides reasonable notice to Acquiror of THL I to the effect that it is taking such determination of the Company Board as provided for action and (y) receives from such person or entity an executed confidentiality agreement in clause reasonably customary form, (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected failing to make any Takeover Proposal, or any initial request for discussions withdrawing or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, modifying its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board recommendation referred to in Section 4.03(b3.15 if the Board of Directors of the Company, after consultation with and based upon the advice of independent legal counsel (who may be the Company's regularly engaged independent counsel), (ii) approve determines in good faith that such action is necessary for the Board of Directors of the Company to comply with its 19 26 fiduciary duties to stockholders under applicable law or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given making to the Company's stockholders of any recommendation and related filing with the Company or received SEC as required by Rule 14e-2 and 14d-9 under the CompanyExchange Act, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal tender offer, or taking any other legally required action (including, without limitation, the making of public disclosures as may be necessary or advisable under applicable securities laws); and each material modification thereto)provided further, (vi) withhold or fail to include the Company Board Recommendation however, that, in the Schedule 14D-9 when disseminated to event of an exercise of the Company’s stockholders 's or it's Board of Director's (viior the Special Committee's) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in rights under clause (i), (ii), (iii), (iv), (v), (vi) or (viiiii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding above, notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable Law, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law.
(f) Nothing contained in this Agreement to the contrary, such failure shall prohibit not constitute a breach of this Agreement by the Company. For purposes of this Agreement, "Transaction Proposal" shall mean any of the following (other than the transactions between the Company and THL I) involving the Company and its subsidiaries: (i) any merger, consolidation, share exchange, recapitalization, business combination, or other similar transaction involving 40% or more of the assets of the Company; (ii) any sale, lease, exchange, mortgage, pledge, transfer or other disposition of 40% or more of the assets of the Company and its subsidiaries, taken as a whole, in a single transaction or series of transactions; (iii) any tender offer or exchange offer for 40% or more of the outstanding shares of capital stock of the Company or the Company Board from taking and disclosing to the Company’s stockholders filing of a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated registration statement under the Exchange Securities Act in connection therewith; or from issuing (iv) any public announcement of a “stopproposal, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e).
(g) Notwithstanding anything plan or intention to the contrary contained in this Section 6.02 or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall do any of the following constitute, foregoing or be taken into account any agreement to engage in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writforegoing. 6.7
Appears in 1 contract
Sources: Restated Agreement and Plan of Merger (Syratech Corp)
No Solicitation. (a) Until Prior to the earlier termination of the Effective Time and Agreement, each Stockholder (in its capacity as a stockholder of the valid termination of this Agreement pursuant to Section 8.01, the Company Company) shall not, shall cause each of its controlled Affiliates not to, and shall use reasonable best efforts to cause its Subsidiaries and its and their respective Representatives each person that controls such Stockholder (each, a “Representative”) not to, directly or indirectly, (i) solicit, initiate, knowingly facilitate encourage or knowingly encourage facilitate any inquiries regarding, or the submission or announcement making of any inquiriesproposal or offer that constitutes, proposals or offers that constitute or would could reasonably be expected to lead to any Takeover to, a Company Acquisition Proposal, (ii) provide engage in, continue or otherwise participate in any non-public information concerning the Company discussions or its Subsidiaries negotiations that could reasonably be expected to lead to, or furnish to any Person or group other person any information in connection with any Takeover Proposalor for the purpose of encouraging or facilitating, a Company Acquisition Proposal (other than, solely in response to an unsolicited inquiry, to refer the inquiring person to this Section 3.3 and/or Section 7.6 of the Merger Agreement and to limit its conversation or other communication exclusively to such referral), or engage (iii) approve, recommend or enter into, or propose to approve, recommend or enter into, any letter of intent or similar document, agreement, commitment, or agreement in principle (whether written or oral, binding or nonbinding) with respect to a Company Acquisition Proposal; provided that nothing herein shall prohibit any Stockholder or any of its controlled Affiliates or Representatives from participating in any discussions or negotiations with respect to any Takeover Proposal, (iii) approve, support, adopt, endorse a possible stockholders’ consent or recommend any Takeover Proposal, (iv) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or voting agreement in connection with a third party becoming an “interested stockholder” under, Section 203 of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve or agree to do any of the foregoing. The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with any Person or groups that may be ongoing with respect to any Takeover Acquisition Proposal or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company or any of its Subsidiaries or any of its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received a bona fide, written Takeover Proposal from any Person or group that did not result from a breach of this Section 6.02, and (ii) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or could reasonably be expected to result in a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, (A) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group making such Takeover Proposal; provided, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected Company becomes permitted to lead to any Takeover Proposal, or any initial request for non-public information concerning take the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, actions set forth in connection with such notice, and subject to the existing terms of confidentiality obligations Section 7.6(c) of the Company as in place as of the date of this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable Law, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Company Acquisition Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e).
(g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writ
Appears in 1 contract
No Solicitation. (a) Until The Company shall immediately cease any discussions or negotiations with any parties that may be ongoing with respect to a Takeover Proposal (as hereinafter defined) and shall seek to have returned to the earlier of Company any confidential information that has been provided in any such discussions or negotiations. From the Effective Time and the valid termination of this Agreement pursuant to Section 8.01date hereof, the Company shall not, and nor shall cause it permit any of its Subsidiaries and subsidiaries to, nor shall it authorize or permit any of its and their respective Representatives not officers, directors or employees or any affiliate, investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its subsidiaries to, directly or indirectly, (i) solicit, initiate, knowingly facilitate initiate or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated), or take any other action designed to facilitate, any inquiries or the submission or announcement making of any inquiriesproposal which constitutes, proposals or offers that constitute or would may reasonably be expected to lead to to, any Takeover Proposal, Proposal or (ii) provide any non-public information concerning the Company or its Subsidiaries to any Person or group in connection with any Takeover Proposal, or engage participate in any discussions or negotiations with respect to regarding any Takeover Proposal, (iii) approve, support, adopt, endorse or recommend any Takeover Proposal, (iv) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve or agree to do any of the foregoing. The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with any Person or groups that may be ongoing with respect to any Takeover Proposal or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company or any of its Subsidiaries or any of its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received a bona fide, written Takeover Proposal from any Person or group that did not result from a breach of this Section 6.02, and (ii) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or could reasonably be expected to result in a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, (A) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group making such Takeover Proposal; provided, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, that prior if, following the receipt of a Superior Proposal (as hereinafter defined) or a proposal which is reasonably expected to lead to a Superior Proposal that in either case was unsolicited and made after the date hereof in circumstances not otherwise involving a breach of this Agreement, the Board of Directors of the Company determines in good faith, after considering applicable provisions of state law and after consultation with outside counsel, that a failure to do so would be inconsistent with its fiduciary duties to the Company's shareholders under applicable law, the Company may, in response to such Takeover Proposal and subject to compliance with Section 5.2(c), (A) request information from the party making such Takeover Proposal for the sole purpose of the Board of Directors of the Company informing itself about the Takeover Proposal that has been made and the party that made it, (B) furnish information with respect to the Company to the party making such Takeover Proposal pursuant to a customary confidentiality agreement, provided that (1) such confidentiality agreement must include a provision prohibiting solicitation of key employees of the Company or concurrently its subsidiaries, for at least one year, and may not include any provision calling for an exclusive right to negotiate with the Company taking and (2) the Company advises Parent of all such nonpublic information delivered to such person concurrently with its delivery to the requesting party, and (C) participate in negotiations with such party regarding such Takeover Proposal; provided further, that the actions as described in clauses (A) and/or ), (B) aboveand (C) may be taken only on or before May 9, 2003. It is agreed that any violation of the Company shall provide written notice to Acquiror of such determination restrictions set forth in the preceding sentence by any executive officer, director or investment banker, attorney or other advisor or representative of the Company or any of its subsidiaries shall be deemed to be a breach of this Section 5.2(a) by the Company.
(b) Except as expressly permitted in this Section 5.2(b), neither the Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations Directors of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (modify, or modify propose publicly to withdraw or qualify modify, in a manner adverse to Acquiror or Merger Sub)Parent, the approval, determination of advisability, or publicly propose to withdraw recommendation by such Board of Directors or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub)such committee of this Agreement, the Company Board Recommendation or Merger, and the findings or conclusions of the Company Board referred to in Section 4.03(b)other transactions contemplated hereby, (ii) approve or recommend the adoption ofapprove, determine to be advisable, or recommend, or propose publicly propose to approve, declare determine to be advisable, or recommend, any Takeover Proposal or (iii) cause the advisability Company to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement (each, an "Acquisition Agreement") related to any Takeover Proposal. Notwithstanding the foregoing, in the event that the Board of Directors of the Company determines in good faith, in response to a Superior Proposal that was unsolicited and made after the date hereof in circumstances not otherwise involving a breach of this Agreement, after considering applicable provisions of state law and after consultation with outside counsel, that the failure to do so would be inconsistent with its fiduciary duties to the Company's stockholders under applicable law, the Board of Directors of the Company may (subject to compliance with this and the following sentences and to compliance with Sections 5.2(a) and 5.2(c)) (x) withdraw or modify its approval, determination of advisability, or recommendation of this Agreement, the Merger, and the other transactions contemplated hereby or (y) approve, determine to be advisable, or recommend a Superior Proposal, or (z) cause the adoption ofCompany to enter into an Acquisition Agreement, provided, however, that any actions described in clause (x), (y) or (z) may be taken only at a time that is after the second business day following Parent's receipt of written notice from the Company advising Parent that the Board of Directors of the Company has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal, identifying the person making such Superior Proposal and providing notice of the determination of the Board of Directors of the Company of what action referred to herein the Board of Directors of the Company has determined to take, and further provided, that the action described in clause (z) may be taken only upon compliance by the Company with Section 7.1(c)(ii) and Section 7.3.
(c) In addition to the obligations of the Company set forth in paragraphs (a) and (b) of this Section 5.2, the Company shall promptly advise Parent orally and in writing of any request for confidential information or of any Takeover Proposal, (iii) cause the material terms and conditions of such request or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any Takeover Proposal and the identity of the foregoing actions, (v) following the date any person making such request or Takeover Proposal (other than any tender or exchange offer relating and shall keep Parent promptly advised of all significant developments which could reasonably be expected to securities culminate in the Board of Directors of the Company (other than the Offer)) withdrawing, modifying or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming amending its recommendation of this Agreement, the Offer Merger and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of transactions contemplated by this Agreement, the Offer and the Merger (or in exercising any action described in clause (i), (ii), (iii), (iv), (v), (viof its other rights under Section 5.2(a) or (vii) being referred to as an “Adverse Recommendation Change”b).
(e) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable Law, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law.
(fd) Nothing contained in this Agreement Section 5.2 or Section 5.3 shall prohibit the Company or the Company Board from taking and disclosing to the Company’s its stockholders a position with respect to a tender offer contemplated by a third party pursuant to Rules 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under making any disclosure to the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this AgreementCompany's stockholders; provided, however, that no Adverse Recommendation Change may be made unless neither the Company shall have first complied nor its Board of Directors nor any committee thereof shall, except as in accordance with Section 5.2(b), withdraw or modify, or propose publicly to withdraw or modify, its obligations in Section 6.02(e).
(g) Notwithstanding anything to the contrary contained in this Section 6.02 approval, determination or elsewhere in recommendation of this Agreement, the Company Board mayMerger and the other transactions contemplated hereby or approve, at any time prior determine to the Acceptance Timebe advisable, make an Adverse Recommendation Changeor recommend, if: or propose publicly to approve, determine to be advisable, or recommend, a Takeover Proposal.
(ie) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions For purposes of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writ:
Appears in 1 contract
Sources: Merger Agreement (Clayton Homes Inc)
No Solicitation. (a) Until Subject to the earlier of the Effective Time and the valid termination provisions of this Agreement pursuant to Section 8.016.3, the Company shall notagrees that neither it nor any Subsidiary of the Company shall, and that it shall use its best efforts to cause its Subsidiaries and its and their respective Representatives not to, directly or indirectly, (i) solicit, initiate, knowingly facilitate initiate or knowingly encourage any inquiry with respect to, or the making, submission or announcement of of, any inquiries, proposals or offers that constitute or would reasonably be expected to lead to any Takeover ProposalAlternative Proposal (as hereinafter defined), (ii) provide any non-public information concerning the Company or its Subsidiaries to any Person or group in connection with any Takeover Proposal, or engage participate in any discussions or negotiations with respect with, or furnish any nonpublic information to, any person that has made or, to any Takeover the Company’s knowledge, is considering making, an Alternative Proposal, except to notify such person as to the existence of the provisions of this Section 6.3, (iii) approve, support, adopt, endorse or recommend any Takeover Alternative Proposal, or (iv) take enter into any action to make the provisions binding or nonbinding letter of intent, agreement in principle, memorandum of understanding or any “fair price,” “moratorium,” “control share acquisition,” “business combination” agreement or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate understanding in any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve or agree to do any of the foregoing. The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation connection with any Person or groups that may be ongoing with respect to any Takeover Alternative Proposal or potential Takeover Proposal(except for confidentiality agreements permitted under Section 6.3(b)). The Company shall promptly after cease any discussions or negotiations with any person which has furnished an Alternative Proposal prior to the date hereof of this Agreement. The Company shall promptly request each Person (if any) person that has heretofore executed a confidentiality agreement (other than in connection with the Confidentiality Agreement) relating Company’s evaluation of strategic alternatives to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company or any of its Subsidiaries or any of its and their respective businesses, operations or affairs confidential information heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person person by or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None on behalf of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this AgreementSubsidiaries.
(b) Notwithstanding anything to the contrary contained limitations set forth in this AgreementSection 6.3(a), if at any time prior to the Acceptance Time, Time the Company receives a bona fide Alternative Proposal not solicited in breach of this Agreement (i) the Company has received which constitutes a bona fide, written Takeover Superior Proposal from any Person or group that did not result from a breach of this Section 6.02, and (ii) which the Board of Directors of the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or faith could reasonably be expected to result in a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, (A) furnish information (including non-public information) with respect may take the following actions prior to the Company and its Subsidiaries to the Person or group making such Takeover Proposal; provided, that Acceptance Time: (x) furnish nonpublic information to the third party (including such third party’s Representatives) making such Alternative Proposal and to such party’s financiers (and to their respective Representatives), if, prior to so furnishing such information, the Company shall receives from the third party an executed agreement having provisions requiring such party to keep such information confidential that are substantially concurrently provide similar to Acquiror the comparable confidentiality provisions of the Confidentiality Agreement (it being agreed that such agreement need not contain any standstill or other non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror confidentiality provisions), and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making third party (including such Takeover Proposal regarding such Takeover Proposal; provided, however, that prior to or concurrently third party’s Representatives) with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject respect to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Alternative Proposal.
(c) The Company shall will promptly (andwithin 24 hours) notify Parent of the receipt of any Alternative Proposal and shall, in any eventsuch notice to Parent, within twenty-four (24) hours) notify Acquiror in writing in indicate the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations identity of the Company as in place as of the date of this Agreement, provide person making such proposal and the material terms and conditions of any such inquiry, proposal, offer or request and the nature of such request, proposal and thereafter the Company shall promptly keep Acquiror Parent reasonably informed on a prompt and timely current basis of the status and material details of discussions with respect thereto, including any material changes change to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Alternative Proposal.
(d) Neither Except as permitted by this Section 6.3(d), the Board of Directors of the Company Board nor any committee thereof shall not (i) withdraw or rescind (withhold, withdraw, qualify or modify or qualify in a manner adverse to Acquiror Parent or Merger Sub), or resolve to or publicly propose to withdraw or rescind (withhold, withdraw, qualify or modify or qualify in a manner adverse to Acquiror Parent or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b)Recommendation, (ii) approve or recommend the adoption ofpublicly propose to approve any letter of intent, agreement in principle, acquisition agreement or similar agreement relating to any Alternative Proposal, or (iii) approve, endorse or recommend, or resolve to or publicly propose to approve, declare the advisability of endorse or recommend the adoption ofrecommend, any Takeover Proposal, Alternative Proposal (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actionsactions in clauses (i) through (iii), a “Change of Recommendation”). Notwithstanding the foregoing, the Board of Directors may (v1) following make a Change of Recommendation if the date any Takeover Proposal (other than any tender or exchange offer relating to securities Board of Directors determines in good faith, after consultation with the Company’s outside legal counsel, that the failure of the Board of Directors of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders effect a Change of Recommendation would be reasonably likely to constitute a breach of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated directors’ fiduciary obligations to the Company’s stockholders under applicable Laws or (vii2) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (v) Proposal, cause the Company has complied to terminate this Agreement and concurrently with the such termination (i) enter into any letter of intent, agreement in principle, memorandum of understanding, merger, acquisition, purchase or joint venture agreement or other provisions of this Section 6.02, (w) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable Law, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior any Alternative Proposal (other than a confidentiality agreement in accordance with Section 6.3(b)) (an “Notice of Intended Recommendation ChangeAlternative Acquisition Agreement”), and (zii) if requested in writing by Acquiror, the Company has negotiated, and has caused perform its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposalobligations under Section 8.2; provided, furtherhowever, that in the event that there is any material amendment to the terms Board of any Superior Proposal (provided, that any revision to the amount, form or mix Directors of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause not be entitled to exercise its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company right to terminate this Agreement pursuant to Section 8.01(g8.1(f) would until 72 hours following written notice to Parent (a “Superior ProposalTermination Notice”) from the Company advising Parent that the Board of Directors of the Company intends to take such action, including a description of the material terms of the Superior Proposal that is the basis for the proposed action of the Board of Directors of the Company (it being understood and agreed that, in the event of an amendment to the financial terms or other material terms of such Superior Proposal, the Board of Directors of the Company shall not be inconsistent entitled to exercise such right based on such Superior Proposal, as so amended, until 72 hours following written notice to Parent of a Superior Proposal Termination Notice with respect to such Superior Proposal as so amended). In determining whether to make a Change of Recommendation or terminate this Agreement in response to a Superior Proposal, the exercise Board of its fiduciary duties under Directors of the Company shall take into account any amendment to this Agreement entered into, or to which Parent irrevocably covenants to enter into and for which all internal approvals of Parent have been obtained, since receipt of the applicable LawSuperior Proposal Termination Notice, and shall not make a Change of Recommendation or terminate this Agreement unless, prior to the effectiveness of such Change of Recommendation or termination, the Board of Directors of the Company shall have determined in good faith, after considering the results of any such negotiations and any revised proposals made by Parent, that the Superior Proposal giving rise to such notice continues to be a Superior Proposal.
(fe) Nothing contained in this Agreement shall prohibit the Company or the Company its Board of Directors from taking and (i) disclosing to the Company’s its stockholders a position with respect to a tender offer contemplated by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act Act, or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, statement pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e).
(g) Notwithstanding anything to the contrary contained in this Section 6.02 thereunder or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as making any disclosure to its stockholders if the Board of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board Directors determines in good faith, after consultation with its financial advisor and the Company’s outside legal counsel, that, in light of such Intervening Event, that the failure of the Board of Directors of the Company to make an Adverse Recommendation Change such disclosure would be inconsistent with the exercise directors’ fiduciary obligations to the Company’s stockholders under applicable Laws; provided, however, that if such disclosure (other than the issuance by the Company of “stop, look and listen” statement pending disclosure of its fiduciary duties position thereunder) does not reaffirm the Company Recommendation, such disclosure shall be deemed to be a Change of Recommendation and Parent shall have the right to terminate this Agreement as set forth in Section 8.1(g).
(f) As used in this Agreement, “Alternative Proposal” shall mean any proposal or offer (other than a proposal or offer by Parent or any of its Subsidiaries) for (i) a merger, reorganization, share exchange, consolidation, business combination, recapitalization, dissolution, liquidation, tender offer, exchange offer or similar transaction involving the Company or any of its Significant Subsidiaries (as defined in Rule 1-02(w) of Regulation S-X promulgated under applicable Law; the Exchange Act but substituting 20% for references of 10% therein) and (vii) no Adverse Recommendation Change has been made for three any inquiry, proposal or offer by any person to acquire in any manner (3A) Business Days after receipt by Acquiror twenty percent (20%) or more of a writthe consolidated total assets (including, without limitation, equity securities of its Subsidiaries) of the Company or any of its Subsidiaries or (B) twenty percent (20%) or more of the total voting power or twenty percent (20%) or more of the outstanding shares of any class of equity securities of the Company or any of its Subsidiaries.
Appears in 1 contract
Sources: Merger Agreement (Respironics Inc)
No Solicitation. (a) Until the earlier of the Effective Time and Closing or the valid termination of this Agreement pursuant to Section 8.01the provisions of SECTION 9.1, the Company shall notSeller will not (nor will Seller cause any of its officers, and shall cause its Subsidiaries and its and their respective Representatives not directors, employees, agents, representatives or affiliates to, ) directly or indirectly, take any of the following actions with any party other than Buyer or its designees:
(a) Solicit, encourage, assist, conduct discussions with or engage in negotiations with any Person, relating to the possible acquisition of the Business or the Acquired Assets, whether by way of merger, purchase of assets or otherwise, other than with respect to the sale of assets in the ordinary course of the Business and consistent with past practices;
(b) Provide information with respect to the Business or the Acquired Assets to any Person relating to the possible acquisition of the Business or the Acquired Assets, whether by way of merger, purchase of assets or otherwise, other than with respect to the sale of assets in the ordinary course of the Business and consistent with past practices;
(c) Enter into an agreement with any Person providing for the acquisition of the Business or the Acquired Assets, whether by way of merger, purchase of assets or otherwise, other than with respect to the sale of assets in the ordinary course of the Business and consistent with past practices; or
(d) Make or authorize any statement, recommendation or solicitation in support of any possible acquisition of the Business or the Acquired Assets, whether by way of merger, purchase of assets or otherwise, by any Person. In addition to the foregoing (i) solicitif Seller or any of its officers, initiatedirectors, knowingly facilitate employees, affiliates or knowingly encourage agents receives prior to the submission Closing or announcement the termination of this Agreement in accordance with its terms any inquiriesoffer, proposals proposal, or offers that constitute or would reasonably be expected to lead request relating to any Takeover Proposalof (a) through (d) above, Seller shall promptly notify Buyer in writing, describing the nature of such proposal or inquiry, inform the third party of Seller's "standstill" obligations and confirm to Buyer that Seller has done so, and (ii) provide any non-public information concerning the Company or its Subsidiaries to any Person or group in connection with any Takeover ProposalSeller represents and warrants that since March 22, or engage in 2002 it has not had any discussions or negotiations with any Persons with respect to any Takeover Proposaloffer, (iii) approveproposal, support, adopt, endorse inquiry or recommend any Takeover Proposal, (iv) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the Corporation Law) inapplicable request relating to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, of (va) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or through (vid) resolve or agree to do any of the foregoing. The Company shallabove, and shall cause its Subsidiaries that it had the legal and its and their respective Representatives to, immediately contractual right to cease and cause to be terminated any solicitation, encouragement, discussion such discussions or negotiation with any Person or groups that may be ongoing with respect to any Takeover Proposal or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company or any of its Subsidiaries or any of its and their respective businesses, operations or affairs heretofore furnished negotiations terminated by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any Seller as of such Person’s or group’s Representatives date. Seller and Buyer agree that irreparable damage would occur in the event that the provisions of this SECTION 6.4 were not performed in accordance with the their specific terms of such confidentiality agreementor were otherwise breached. None of the Company It is accordingly agreed by Seller and Buyer that Buyer shall be entitled to seek an injunction or its Subsidiaries shall enter into any confidentiality agreement subsequent injunctions to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal prevent breaches of the provisions of this Section 6.02. The Company SECTION 6.4 and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as to seek specific performance of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received a bona fide, written Takeover Proposal from any Person or group that did not result from a breach of this Section 6.02, and (ii) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or could reasonably be expected to result in a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, (A) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group making such Takeover Proposal; provided, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable Law, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of provisions hereof, this Agreement and the being in addition to any other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it remedy to which Buyer may be extended pursuant to the following proviso) the Company Board again makes the determinations described entitled at law or in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Lawequity.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e).
(g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writ
Appears in 1 contract
Sources: Asset Purchase Agreement (Catapult Communications Corp)
No Solicitation. (a) Until At all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the Effective Time and the valid termination of this Agreement pursuant to Section 8.01or the Effective Time, neither the Company shall notnor any Shareholder shall, and the Company and each Shareholder shall use its reasonable best efforts to cause its Subsidiaries and its and their respective Representatives not to, directly or indirectly, :
(i) solicit, initiate, knowingly facilitate encourage, or knowingly encourage induce the making, submission or announcement of any inquiriesof, proposals or offers that constitute or would reasonably be expected an Acquisition Proposal with respect to lead to any Takeover Proposal, the Company;
(ii) provide furnish to any Person any non-public information concerning relating to the Company or its Subsidiaries to any Person or group in connection with any Takeover Proposal, or engage in any discussions or negotiations an Acquisition Proposal with respect to any Takeover Proposal, (iii) approve, support, adopt, endorse or recommend any Takeover Proposal, (iv) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve or agree to do any of the foregoing. The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with any Person or groups that may be ongoing with respect to any Takeover Proposal or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to (for avoidance of doubt, it being understood that the Takeover Proposal or to foregoing shall not prohibit the Company or any of its Subsidiaries Representatives from furnishing any non-public information to any actual or potential customer, supplier, distributor, subcontractor, licensor, licensee, partner or other Person with which it has or may have business dealings in the ordinary course of business consistent with past practice (solely in such capacity) or to a Governmental Entity);
(iii) participate or engage in discussions or negotiations with any of its and their respective businesses, operations or affairs heretofore furnished by Person with respect to an Acquisition Proposal with respect to the Company or its Subsidiaries or any (for avoidance of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with doubt, it being understood that the terms of such confidentiality agreement. None of the Company or its Subsidiaries foregoing shall enter into any confidentiality agreement subsequent to the date hereof which prohibits not prohibit the Company or any of its Subsidiaries Representatives from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event inform making a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover making an Acquisition Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received a bona fide, written Takeover Proposal from any Person or group that did not result from a breach of this Section 6.02, and (ii) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or could reasonably be expected to result in a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, (A) furnish information (including non-public information) with respect to the Company and its Subsidiaries aware of the restrictions of this Section 6.3(a)(iii) in response to the Person or group making such Takeover Proposal; provided, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure receipt of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover an Acquisition Proposal); provided, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.or
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose enter into any agreement, letter of intent or announce other similar instrument with any Person providing for an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once Acquisition Transaction with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable Law, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e).
(g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writ
Appears in 1 contract
Sources: Merger Agreement (Perini Corp)
No Solicitation. (a) Until From and after the earlier of date hereof until the Effective Time and the valid termination of this Agreement pursuant to Section 8.01Agreement, neither the Company shall notnor any of its Subsidiaries, nor any of their respective officers, directors, representatives, agents or Affiliates (including, without limitation, any investment banker, attorney or accountant retained by the Company or any of its Subsidiaries) (collectively, "Representatives") will, and shall the Company will cause the employees of the Company and its Subsidiaries and its and their respective Representatives not to, directly or indirectly, (i) solicit, initiate, knowingly facilitate initiate or knowingly encourage the submission or announcement of any inquiriesTakeover Proposal (as defined in Section 8.03(l)), proposals (ii) enter into any agreement with respect to any Takeover Proposal or offers give any approval of the type referred to in Section 3.01(l) with respect to any Takeover Proposal or (iii) participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitute constitutes, or would may reasonably be expected to lead to to, any Takeover Proposal; provided, however, that if at any time prior to the receipt of the Stockholder Approval, the Board of Directors of the Company determines in good faith, based on the advice of outside counsel, that it is necessary to do so in order to comply with its fiduciary duties to the Company's stockholders under applicable law, the Company (and its Representatives) may, in response to an unsolicited Takeover Proposal of the sort referred to in clause (x) of Section 8.03(k) that involves consideration to the Company's stockholders with a value that the Company's Board of Directors reasonably believes, after receiving advice from the Company's financial advisor, is superior to the consideration provided for in the Merger, and subject to compliance with Section 4.02(c), (iix) provide any non-public furnish information concerning with respect to the Company or its Subsidiaries pursuant to a customary confidentiality agreement (having terms substantially similar to those contained in the Confidentiality Agreement (as defined in Section 5.01)) to any Person or group in connection with any Takeover Proposal, or engage in any discussions or negotiations with respect to any Takeover Proposal, making such proposal and (iiiy) approve, support, adopt, endorse or recommend any Takeover Proposal, (iv) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any negotiations regarding such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve or agree to do any of the foregoingproposal. The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any existing solicitation, initiation, encouragement, activity, discussion or negotiation with any Person parties conducted heretofore by the Company or groups that may be ongoing any Representatives with respect to any Takeover Proposal or potential Takeover Proposal. The Company shall promptly after existing on the date hereof request each Person (if any) hereof. Without limiting the foregoing, it is understood that has heretofore executed a confidentiality agreement (other than any violation of the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to restrictions set forth in the preceding sentence by any Representative of the Company or destroy all non-public documents and materials relating any of its Subsidiaries, whether or not such Person is purporting to the Takeover Proposal or to act on behalf of the Company or any of its Subsidiaries or any of its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisionsotherwise, shall be deemed to limit be a breach of this Section 4.02(a) by the ability of Acquiror or any of its Affiliates to take any action contemplated this AgreementCompany.
(b) Notwithstanding anything to Neither the contrary contained in this Agreement, if at any time prior to the Acceptance Time, (i) Board of Directors of the Company has received a bona fide, written Takeover Proposal from nor any Person or group that did not result from a breach of this Section 6.02, and (ii) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or could reasonably be expected to result in a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, (A) furnish information committee thereof (including non-public informationwithout limitation the Independent Committee) with respect to the Company and its Subsidiaries to the Person or group making such Takeover Proposal; provided, that shall (x) the Company shall substantially concurrently provide withdraw or modify, or propose to Acquiror any non-public information (withdraw or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiariesmodify, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, that prior adverse to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) aboveParent, the Company shall provide written notice to Acquiror approval (including, without limitation, either the Board of Directors' or the Independent Committee's resolution providing for such determination approval) or recommendation by such Board of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date Directors or such committee of this Agreement, the Merger or the Amendments or (y) the identity of the Person approve or group making such recommend, or propose to approve or recommend, any Takeover Proposal, except in the case of clause (x) or (y), in connection with a Superior Proposal (as defined in Section 8.03(k)) and then only at or after the termination of this Agreement pursuant to Section 7.01(c).
(c) The In addition to the obligations of the Company set forth in paragraphs (a) and (b) of this Section 4.02, the Company promptly shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror advise Parent orally and in writing in the event that the Company, its Subsidiaries, of any request for information or its of any Takeover Proposal or their respective Representatives, receives any inquiry, proposal inquiry with respect to or offer that constitutes or which could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations identity of the Company as in place as of Person making any such request, Takeover Proposal or inquiry and all the date of this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer or request and the nature of such request, and thereafter the thereof. The Company shall will keep Acquiror reasonably Parent fully informed on a prompt and timely basis of the status and material details of discussions with respect thereto, (including any material changes to the terms amendments or proposed amendments) of any such request, Takeover Proposal or inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable Law, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law.
(f) Nothing contained in this Agreement Section 4.02 shall prohibit the Company or the Company Board from taking and disclosing to the Company’s its stockholders a position with respect to a tender offer contemplated by a third party pursuant to Rules Rule 14d-9 and 14e-2(a) or Rule 14e-2 promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this AgreementAct; provided, however, that no Adverse Recommendation Change may be made unless neither the Company shall have first complied nor its Board of Directors nor any committee thereof shall, except as permitted by Section 4.02(b), withdraw or modify, or propose to withdraw or modify, its approval or recommendation with its obligations in Section 6.02(e).
(g) Notwithstanding anything respect to the contrary contained in this Section 6.02 or elsewhere in this AgreementMerger (including, without limitation, either the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company Directors' or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal Independent Committee's resolution providing for such approval) or the terms and conditions of this Agreement, which event, development approve or change in circumstancerecommend, or any material consequences thereofpropose to approve or recommend, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writProposal.
Appears in 1 contract
No Solicitation. (a) Until Subject to the provisions of this Section 5.4, from the date hereof until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 8.01Termination Date, the Company agrees that it shall not, and shall cause its Subsidiaries Subsidiaries, Affiliates and its and their respective Representatives not to, directly or indirectly, (i) solicit, initiate, knowingly facilitate or knowingly encourage (including by way of furnishing or providing access to non-public information) the making or submission of, any indication of interest, proposal or announcement of any inquiriesoffer that constitutes, proposals or offers that constitute or would could reasonably be expected to lead to to, any Takeover Alternative Proposal, (ii) provide any non-public information concerning the Company enter into, continue or its Subsidiaries to any Person or group in connection with any Takeover Proposal, or engage otherwise participate in any discussions or negotiations with respect to any Takeover Proposal, (iii) approve, support, adopt, endorse or recommend any Takeover Proposal, (iv) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming regarding an “interested stockholder” under, Section 203 of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve or agree to do any of the foregoing. The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with any Person or groups that may be ongoing with respect to any Takeover Alternative Proposal or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person furnish (if anyor continue to furnish) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to any nonpublic information regarding the Company or any of its Subsidiaries or to any of its Person (other than Parent, Merger Sub and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event inform a Person or group Representatives) that has made or, to the Knowledge of the Company, is considering makingmaking an Alternative Proposal (except, in each case, solely to clarify the terms and conditions of any proposal or offer made by any Person solely to determine whether such proposal or offer constitutes or could reasonably be expected to lead to a Takeover Superior Proposal), or (iii) enter into any letter of intent or agreement in principle or any other agreement (whether written or oral, binding or non-binding, preliminary or definitive) relating to, or that is intended to or would reasonably be expected to lead to, any Alternative Proposal (except for confidentiality agreements permitted under Section 5.4(d)). From the date hereof until the earlier of the Effective Time and the Termination Date, the Company shall not, and shall cause its Subsidiaries not to, terminate, amend, modify or waive any standstill, non-use or non-disclosure provision with respect to an Alternative Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all any confidentiality agreement, standstill or similar provisions in agreement to which the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror Company or any of its Affiliates to take any action contemplated this Agreement.
(b) Notwithstanding anything Subsidiaries entered into with the intent of exploring a potential Alternative Proposal; provided, that the Company may grant waivers of standstill and similar provisions to the contrary contained in this Agreement, if at any time prior to extent the Acceptance Time, (i) Board of Directors of the Company has received a bona fide, written Takeover Proposal from any Person or group that did not result from a breach of this Section 6.02, and (ii) the Company Board determines shall have determined in good faith, after consultation with its financial advisor and outside legal counsel, that the failure to take such Takeover action would be inconsistent with its fiduciary duties under applicable Law.
(b) The Company agrees that it shall, and shall cause its Subsidiaries, Affiliates and Representatives, to (i) immediately following the execution of this Agreement cease and cause to be terminated any solicitations, discussions or negotiations with any Person (other than Parent, ▇▇▇▇▇▇ Sub and their respective Representatives) in connection with any Alternative Proposal, (ii) terminate access to any physical or electronic data rooms hosted by or on behalf of the Company by any Person (other than Parent, Merger Sub and their respective Representatives) and (iii) deliver written notice to each such Person requesting that such Person (other than Parent, Merger Sub and their respective Representatives) return or destroy all confidential information regarding the Company and its Subsidiaries in accordance with the applicable confidentiality agreement between the Company and such Person.
(c) The Company shall promptly (and in any event within 48 hours of receipt) notify Parent in writing of (i) the receipt by the Company of an Alternative Proposal constitutes or (ii) any proposal or offer received by the Company with respect to, or that would reasonably be expected to lead to, an Alternative Proposal, which notice shall include (A) a copy of any such Alternative Proposal, offer or proposal made in writing (including any draft agreements or term sheets, financing commitments and other agreements submitted therewith) and (B) a summary of the material terms and conditions of any such Alternative Proposal, offer or proposal not made in writing. In addition, from and after the date hereof, the Company shall (x) notify Parent in writing if the Company determines to begin providing information or to engage in discussions or negotiations concerning an Alternative Proposal in accordance with Section 5.4(d), (y) keep Parent reasonably informed in all material respects of the status and terms (including any material change to the terms of any such Alternative Proposal) of any such Alternative Proposal, offer or proposal and (z) provide Parent promptly after the receipt or delivery of copies of all written proposals, offers or draft agreements sent or provided to the Company, its Affiliates or its Representatives from any Person that describes any of the terms or conditions of any such Alternative Proposal, inquiry, offer or proposal.
(d) Notwithstanding anything in this Section 5.4 to the contrary, if at any time following the date hereof and prior to the receipt of the Required Company Stockholder Vote the Company receives a bona fide, written unsolicited Alternative Proposal and that the Board of Directors determines in good faith after consultation with its outside legal and financial advisors could reasonably be expected to result in a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group subject to compliance with Section 5.4(c) in all material respects, take the following actions: (x) furnish nonpublic information to the third party making such Takeover Alternative Proposal, (A) furnish as well as its Representatives and potential financing sources, if, and only if, prior to so furnishing such information, the third party has executed a confidentiality agreement with the Company having provisions as to confidential treatment of information (including non-public information) with respect and other terms that are not materially less favorable in the aggregate to the Company than the confidentiality provisions and its Subsidiaries to other terms of the Person Confidentiality Agreement (it being understood that such confidentiality agreement need not contain any “standstill” or group similar provisions or otherwise prohibit the making or amendment of any Alternative Proposal on a confidential basis, but such Takeover Proposal; provided, that (x) the Company confidentiality agreement shall substantially concurrently provide to Acquiror any non-public information (or access) concerning not prohibit the Company or its Subsidiaries from providing any information contemplated by this Section 5.4 to Parent, Merger Sub or their respective Representatives) (provided, however, that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive such non-public information of the Company has previously been provided to Parent or its Subsidiaries, in a manner reasonably consistent is provided to Parent prior to or substantially concurrently with the Company’s past practices in dealing with the disclosure of time such information in the context of considering Takeover Proposalsis furnished to such third party), and (By) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, that prior to or concurrently third party with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject respect to the existing terms Alternative Proposal. It is understood and agreed that any contacts, disclosures, discussions or negotiations to the extent permitted under this Section 5.4(d) shall not, in and of confidentiality obligations itself, constitute a Change of the Company as in place as of the date of Recommendation or constitute a basis for Parent to terminate this Agreement) the identity of the Person or group making such Takeover ProposalAgreement pursuant to Section 7.1(g)(ii).
(ce) The Company shall promptly (and, Except as set forth in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this AgreementSection 5.4, the Company Board of Directors shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither the Company Board nor any committee thereof shall not (i) withhold or withdraw or rescind (or modify or qualify in a any manner adverse to Acquiror Parent or Merger Sub), or propose publicly propose to withhold or withdraw or rescind (or modify or qualify in a any manner adverse to Acquiror Parent or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b)Recommendation, (ii) approve approve, recommend or recommend the adoption ofdeclare advisable, or publicly propose to approve, recommend or declare the advisability of or recommend the adoption ofadvisable, any Takeover Alternative Proposal, (iii) cause fail to include the Recommendation in the Proxy Statement or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose fail to publish, send or announce an intention provide to take the holders of Shares, pursuant to Rule 14e-2(a) under the Exchange Act a statement recommending against any of the foregoing actions, (v) following the date any Takeover Alternative Proposal (other than any that is a tender or exchange offer relating to securities of and publicly reaffirm the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such after the commencement (Awithin the meaning of Rule 14d-2 under the Exchange Act) that the Company recommends rejection of such tender offer or exchange offer and or fail to maintain such recommendation against such offer at any time before such offer has expired or been withdrawn or (Bv) reaffirming its recommendation resolve or agree to do any of this Agreement, the Offer and the Merger foregoing (any action described in clause (i)such action, (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an a “Adverse Recommendation ChangeChange of Recommendation”).
(e) Notwithstanding anything . Anything to the contrary set forth in this AgreementAgreement notwithstanding, at any time prior to obtaining the Acceptance TimeRequired Company Stockholder Vote, the Company Board may effect an Adverse Recommendation Change of Directors may, in response to a Superior bona fide, written unsolicited Alternative Proposal if and only if: (v) received by the Company has complied with after the other provisions date of this Section 6.02, (w) Agreement and that the Company Board of Directors determines in good faith (faith, after consultation with its financial advisors and outside legal counselcounsel would, if consummated, constitute a Superior Proposal after giving effect to all of the adjustments to the terms of this Agreement that have been offered by Parent in accordance with this Section 5.4(e) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable Law, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes make a Superior Proposal and that it intends to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Change of Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal or (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(cy) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g7.1(g)(i) in order to enter into a definitive written agreement providing for such Superior Proposal substantially concurrently with such termination; provided, however, that the Board of Directors shall not be entitled to make such a Change of Recommendation or cause such termination of this Agreement pursuant to Section 7.1(g)(i) unless, in each case, (A) the Company shall have given Parent at least three (3) Business Days’ written notice (a “Superior Proposal Notice”) advising Parent of its intention to make such a Change of Recommendation or terminate this Agreement, which Superior Proposal Notice shall include a description of the terms and conditions of the Superior Proposal that is the basis for the proposed action of the Board of Directors, the identity of the Person making the Superior Proposal and a copy of any written offer or proposal, proposed definitive agreement, proposed or committed financing documentation and any other related documents for such Superior Proposal, if any, (B) during such three (3) Business Day period, if requested by Parent, the Company, its Subsidiaries and their respective Representatives shall engage with Parent and its Representatives to consider amendments to the terms and conditions of this Agreement in such a manner so that such Alternative Proposal would cease to constitute a Superior Proposal and (C) at the end of such notice period, after taking into account any proposals irrevocably made by Parent in writing to amend the terms of this Agreement during the period following delivery of such Superior Proposal Notice, the Board of Directors concludes in good faith after consultation with its financial advisors and outside legal counsel that the Superior Proposal giving rise to the Superior Proposal Notice continues to constitute a Superior Proposal; provided that in the event of any modification of the financial terms or any other material modifications to the terms of such Superior Proposal, the Company shall be required to deliver a new written notice to Parent and to again comply with the requirements of this Section 5.4(e) with respect to such new written notice, except that the notice period under clause (A) shall be two (2) Business Days.
(f) Anything to the contrary set forth in this Agreement notwithstanding, prior to obtaining the Required Company Stockholder Vote, the Board of Directors may, in response to an Intervening Event, make a Change of Recommendation contemplated by clause (i) or (iii) of the definition thereof if the Board of Directors determines in good faith, after consultation with the Company’s financial advisors and outside legal counsel, that an Intervening Event has occurred and is continuing and that the failure of the Board of Directors to make a Change of Recommendation in response to such Intervening Event would reasonably likely be inconsistent with its fiduciary duties under applicable Law; provided, however, that the exercise Board of Directors shall not be entitled to make such a Change of Recommendation (i) unless the Company shall have given Parent at least two (2) Business Days’ written notice (an “Intervening Event Notice”) advising Parent of its intention to make such a Change of Recommendation, which Intervening Event Notice shall include a description of the applicable Intervening Event, (ii) unless during such two (2) Business Day period, if requested by Parent, the Company, its Subsidiaries and their respective Representatives shall engage with Parent and its Representatives to consider amendments to the terms and conditions of this Agreement in such a manner that would permit the Board of Directors, consistent with its fiduciary duties, not to make such Change of Recommendation and (iii) unless, at the end of such notice period, after taking into account any proposals irrevocably made by Parent in writing to amend the terms of this Agreement during the period following delivery of such Intervening Event Notice, the Board of Directors determines in good faith, after consultation with the Company’s financial advisors and outside legal counsel, that such Intervening Event remains in effect and that the failure of the Board of Directors to make such Change of Recommendation contemplated by clause (i) or (iii) of the definition thereof would reasonably likely continue to be inconsistent with its fiduciary duties under applicable Law.
(fg) Nothing contained in this Agreement shall prohibit the Company or the Company its Board of Directors from (i) taking and or disclosing to the Company’s its stockholders a position with respect to a tender offer contemplated by a third party pursuant to Rules 14d-9 and 14d-9, 14e-2(a) or Item 1012(a) of Regulation M-A promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, statement pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e).
(g) Notwithstanding anything to the contrary contained in this Section 6.02 thereunder or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as making any disclosure to its stockholders if the Board of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board Directors determines in good faith, after consultation with its financial advisor and the Company’s outside legal counsel, that, in light of such Intervening Event, that the failure of the Board of Directors to make an Adverse Recommendation Change such disclosure would be reasonably likely to be inconsistent with the directors’ exercise of its their fiduciary duties to the Company’s stockholders under applicable Law; provided, that (vA) no Adverse any such action or disclosure that constitutes a Change of Recommendation may only be made in accordance with the applicable provisions of Section 5.4(e) and Section 5.4(f) and (B) any public disclosure made by or on behalf of the Company that refers to an Alternative Proposal will be deemed to be a Change has been made of Recommendation (including for three (3purposes of Section 7.1(g)(ii)) Business Days after receipt by Acquiror unless the Board of Directors expressly reaffirms the Recommendation in such disclosure. A “stop, look and listen” disclosure pursuant to Section 14d-9(f) under the Exchange Act in connection with a writtender or exchange offer shall not constitute a Change of Recommendation.
Appears in 1 contract
Sources: Merger Agreement (Aerojet Rocketdyne Holdings, Inc.)
No Solicitation. (a) Until The Company agrees that neither it nor any Subsidiary shall, nor shall it authorize or permit the earlier officers, directors, employees, accountants, consultants, legal counsel, financial advisors (including without limitation, ▇▇▇▇▇▇ Gull Inc. and its Affiliates), financing sources, agents and other representatives (collectively, "Representatives") of the Effective Time and Company or the valid termination of this Agreement pursuant to Section 8.01, the Company shall not, and shall cause its Subsidiaries and its and their respective Representatives not to, directly or indirectly, (i) solicit, initiate, knowingly propose, encourage or take any action to facilitate or knowingly encourage the submission or announcement of any inquiries, proposals or offers that constitute or would reasonably be expected to lead to any Takeover Acquisition Proposal, (ii) provide any non-public information concerning the Company initiate or its Subsidiaries to any Person or group in connection with any Takeover Proposal, or engage participate in any discussions or negotiations with respect regarding, or furnish or disclose to any Takeover Person (other than Buyer or its Representatives) any information in connection with, or which would be reasonably expected to result in, any Acquisition Proposal, or (iii) approve, support, adopt, endorse or recommend any Takeover Proposal, (iv) take any action to make exempt any Person from the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, restrictions contained in Section 203 180.1140 to 180.1144 of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, WBCL (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve or agree to do any of the foregoing. The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with any Person or groups that may be ongoing with respect to any Takeover Proposal or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company or any of its Subsidiaries similar provision) or any of its and their respective businessesotherwise cause such restrictions not to apply; provided, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreementhowever, the Company and its Representatives may in any event inform a Person or group that has made orthat, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance TimeJune 20, (i) 2006, nothing contained in this Agreement shall prevent the Company has received a bona fide, written Takeover Proposal from any Person or group that did not result from a breach of this Section 6.02, and (ii) the Company Board (or any committee thereof) from furnishing information to, or engaging in negotiations or discussions with, any Person in connection with an unsolicited bona fide written Acquisition Proposal by such Person received after the date hereof, if and only to the extent that prior to taking such action the Special Committee (A) determines in good faith, faith (after consultation with its outside legal counsel and ▇▇▇▇▇▇ Gull Inc. or another financial advisor and outside legal counsel, of nationally recognized reputation) that (I) such Takeover Acquisition Proposal constitutes or could reasonably be expected to result in a Superior Proposal, then which Acquisition Proposal was not, directly or indirectly, the Company mayresult of a breach of this Section 5.06, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, and (AII) furnish information (including non-public information) it is required to do so in order to comply with respect its fiduciary duties to the Company and its Subsidiaries to the Person or group making such Takeover Proposal; provided, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information shareholders of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposalsunder applicable Law, and (B) engage receives from such Person an executed confidentiality agreement, the terms of which are substantially similar to and no less favorable to the Company than those contained in the confidentiality letter agreement dated as of November 4, 2005 between ▇▇▇▇▇▇▇ Mezzanine Advisers, LLC and the Company (the "Confidentiality Agreement").
(b) The Company shall notify Buyer as promptly as practicable (and in any event within 24 hours) orally and as soon as practicable thereafter in writing of the receipt by the Company or any of the Subsidiaries, or any of its or their respective Representatives, of any inquiries, proposals or offers, requests for information or requests for discussions or negotiations regarding any Acquisition Proposal, specifying the material terms and conditions thereof and the identity of the party making such request, Acquisition Proposal or inquiry. The Company (i) shall keep Buyer reasonably informed of the status of any such discussions or negotiations and of any modifications to such inquiries, proposals or offers; (ii) agrees that it shall not, and shall cause the Subsidiaries not to, enter into any confidentiality agreement with any Person subsequent to the date of this Agreement which prohibits the Company from providing such information to Buyer; and (iii) shall promptly (and in any event within 24 hours) provide to Buyer a copy of all written inquiries, proposals or offers, requests for information or requests for discussions or negotiations from any other Person and all written due diligence materials subsequently provided by the Company or any Subsidiary in connection with the Person making Acquisition Proposal, request or inquiry that the Buyer was not previously provided. The Company agrees that neither it nor any of the Subsidiaries shall terminate, waive, release, amend or modify any provision of any existing standstill or confidentiality or similar agreement to which it or any of the Subsidiaries or their respective Affiliates or Representatives is a party and that it and the Subsidiaries shall enforce the provisions of any such Takeover Proposal regarding such Takeover Proposalagreement; provided, however, that prior if requested to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) abovedo so by a third party desiring to submit an Acquisition Proposal, the Company shall provide written notice may waive any existing standstill provisions (i) if the Special Committee determines in good faith, after consultation with its outside legal counsel, that it is required to Acquiror of such determination do so in order to comply with its fiduciary duties to the shareholders of the Company Board as provided for in clause under applicable Law and (ii) above, together with (subject solely to the existing terms extent necessary and for the limited purpose of confidentiality obligations of permitting such Person to submit an unsolicited bona fide Acquisition Proposal hereunder. The Company shall, and shall cause the Subsidiaries and its and their Representatives to, immediately cease and cause to be terminated any discussions or negotiations with any parties that may be ongoing with respect to, or that are intended by the Company as in place or its Representatives to or would be reasonably expected by the Company or its Representatives to result in, any Acquisition Proposal as of the date hereof, and shall inform its and the Subsidiaries' Representatives of the obligations undertaken in this Section 5.06. To the extent that it has not already done so, the Company agrees that promptly following the execution of this Agreement, it shall request each Person (i) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning with whom the Company or its Subsidiaries from any Person Subsidiary has had any discussion regarding a potential Acquisition Proposal during the 12 months prior to the date of this Agreement or group who (ii) which has made or would reasonably be expected to make any Takeover Proposal, heretofore executed a confidentiality agreement with the Company or any initial request for discussions or negotiations related to any Takeover Proposal, and, Subsidiary in connection with such notice, and subject a potential Acquisition Proposal during the 12 months prior to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, provide the material terms to return or destroy (and conditions of any such inquiry, proposal, offer or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes use commercially reasonable best efforts to the terms of cause any such inquiry, proposal, offer destruction to be certified in writing by an executive officer of such Person) all confidential information heretofore furnished to such Person by or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company on its behalf.
(c) Except as set forth in place as of the date of this AgreementSection 5.06(c), the Company Board (or any committee thereof) shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreementsnot, and oral summaries of any oral inquiriesshall not publicly propose to, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (or withdraw, modify or qualify change, in a manner adverse to Acquiror Buyer, the unanimous approval or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), recommendation of this Agreement and the Transactions by the Company Board Recommendation (or the findings or conclusions of the Company Board referred to in Section 4.03(bany committee thereof), ; (ii) approve approve, adopt or recommend the adoption of, any Acquisition Proposal; or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause approve or permit recommend, or allow the Company or any Subsidiary to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, option agreement, joint venture agreement, acquisition agreement or other similar agreement constituting or related to, or that is intended to or would be reasonably expected to result in, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating a confidentiality agreement referred to securities of in and as permitted by Section 5.06(a)). Notwithstanding the Company (other than the Offer)) or any material modification thereto is first made public or sent or given foregoing, if, prior to June 20, 2006, in response to the stockholders receipt of the Company or received by the Companyan unsolicited bona fide written Acquisition Proposal, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation determines in the Schedule 14D-9 when disseminated to the Company’s stockholders or good faith (vii) following the commencement after consultation with its outside legal counsel and a financial advisor of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (Anationally recognized reputation) that the Company recommends rejection of such tender or exchange offer and Acquisition Proposal is a Superior Proposal, (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure it is required to take such action would be inconsistent do so in order to comply with the exercise of its fiduciary duties to the shareholders of the Company under applicable Law, Law and (xC) the Company is not otherwise in violation under this Section 5.06, then the Company Board determines may, in good faith (after consultation connection with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquirorwithdraw, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) modify or change the Company Board again makes the determinations described in clauses Recommendation (w) and (x) with respect to such Superior Proposala "Change of Recommendation"); provided, further, provided that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse effect a Change of Recommendation Change prior to the end of any such period as so extendedafter June 20, 2006; provided, further, that the Company Board shall have considered not in any event effect a Change of Recommendation unless the Company has (x) provided a timely written notice to Buyer ("Notice of Superior Proposal"), advising Buyer that the Company Board has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal and identifying the Person making such Superior Proposal (it being understood and agreed that any amendment to the financial terms or any other material term of such Superior Proposal shall require a new Notice of Superior Proposal and a new three business day period), (y) negotiated during the three business day period following Buyer's receipt of the Notice of Superior Proposal in good faith any amendments with Buyer (to this Agreement the extent Buyer wishes to negotiate) to enable Buyer to make a counter-offer so the Superior Proposal is no longer a Superior Proposal and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s(z) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate terminated this Agreement pursuant to Section 8.01(g9.01(h) would be inconsistent and otherwise complied with the exercise of its fiduciary duties under applicable LawSection 9.03.
(fd) Nothing contained in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders its shareholders a position with respect to a tender offer contemplated by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this AgreementAct; provided, however, that no Adverse Recommendation Change may be made unless neither the Company shall have first complied with its obligations in Section 6.02(e).
(g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreement, nor the Company Board may, at (nor any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: committee thereof) shall (x) (i) there shall occur or arise after recommend that the date shareholders of this Agreement a material event, material development or material change in circumstances that was not known by the Company tender their Shares in connection with any such tender or exchange offer (or otherwise approve or recommend any Acquisition Proposal) or (ii) withdraw or modify the Company Board as Recommendation, unless in each case the requirements of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstanceSection 5.06(c) shall have been satisfied, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreementotherwise take, agree or (z) resolve to take, any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt action prohibited by Acquiror of a writSection 5.06(c).
Appears in 1 contract
No Solicitation. (a) Until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 8.01, the The Company shall not, and shall cause not permit its respective Subsidiaries and its and their respective Representatives not to, or authorize any of its officers, directors, employees, accountants, counsel, investment bankers, financial advisors or other advisors, agents or representatives ("Representatives") to, (i) directly or indirectly, (i) solicit, initiate, knowingly facilitate solicit or knowingly encourage encourage, or take any other action to knowingly facilitate, any inquiries or the submission or announcement making of any inquiries, proposals proposal that constitutes or offers that constitute or would could reasonably be expected to lead to a Takeover Proposal (as defined below), or (ii) directly or indirectly engage or participate in discussions or negotiations regarding or provide any information or data to any person or otherwise cooperate in any way with, any Takeover Proposal. Subject to the provisions of this Section 5.5(a), the Company shall not (i) waive the benefit of any provision contained in any confidentiality or standstill agreement in effect on the date hereof or (ii) provide any non-public information concerning the Company or its Subsidiaries to any Person or group in connection with any Takeover Proposal, or engage in any discussions or negotiations with respect to any Takeover Proposal, (iii) approve, support, adopt, endorse or recommend any Takeover Proposal, (iv) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction underrender inapplicable, or a third party becoming an “interested stockholder” underto exempt any person from, Section 203 of the DGCL, Chapter 23B.19 of the Washington Business Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiationsAct, or any similar "fair price," "moratorium," "control share acquisition" or antitakeover statute applicable to the Company (vi) resolve other than, in each such case, in connection with the termination of this Agreement by the Company pursuant to Section 8.1(g)). Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in the preceding sentence by any Representative of the Company or agree to do any of its Subsidiaries shall be a breach of this Section 5.5(a) by the foregoingCompany. The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitationall existing discussions and negotiations, encouragementif any, discussion or negotiation with any Person or groups that may be ongoing other persons conducted heretofore with respect to any Takeover Proposal or potential Takeover Proposal. The Company shall promptly after and request the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly prompt return to the Company or destroy of all non-public documents and materials relating to the Takeover Proposal or to the Company or any of its Subsidiaries or any of its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the confidential information required to be provided to Acquiror pursuant to this Section 6.02previously furnished. Notwithstanding anything to the contrary contained in this Agreementforegoing, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to obtaining Stockholder Approval, in response to a bona fide Takeover Proposal that the Acceptance Time, (i) Board of Directors of the Company has received determines in good faith (after consultation with outside counsel and a bona fidefinancial advisor of nationally recognized reputation) constitutes or is reasonably likely to lead to a Superior Proposal, written and which Takeover Proposal from any Person or group that was unsolicited and made after the date hereof and did not otherwise result from a breach of this Section 6.025.5(a), and (ii) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or could reasonably be expected to result in a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposalsubject to compliance with Section 5.5(c), (Ax) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group person making such Takeover Proposal; providedProposal (and its Representatives) pursuant to a customary confidentiality agreement (containing customary standstill and other provisions) not less restrictive of such person than the Confidentiality Agreement, provided that (x) the Company shall substantially concurrently provide all such information has previously been provided to Acquiror any non-public information (Parent or access) concerning the Company or its Subsidiaries that is provided to (Parent prior to or access which at the time it is given to) any Person or group and which was not previously provided to Acquiror and such person, (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage participate in discussions or negotiations with the Person person making such Takeover Proposal (and its Representatives) regarding such Takeover Proposal; provided, however, that prior Proposal and (z) waive the benefit of any provision contained in any confidentiality or standstill agreement relating to or concurrently with such Takeover Proposal solely for the Company taking purpose of allowing such actions as described in clauses party to make its proposal to the Board of Directors of the Company.
(Ab) and/or (B) above, Neither the Company shall provide written notice to Acquiror Board of such determination Directors of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (modify, or modify propose to withdraw or qualify modify, in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub)Parent, the Company approval, recommendation or declaration of advisability by the Board Recommendation or the findings or conclusions of Directors of the Company Board referred to in Section 4.03(b)or any such committee of the Merger or this Agreement, or (ii) approve recommend, adopt or recommend the adoption ofapprove, or propose publicly propose to recommend, adopt or approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, Proposal or Superior Proposal or (iii) cause approve or permit recommend, or propose to approve or recommend, or allow the Company or any of its Subsidiaries to execute or 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 agreement (each, an "Acquisition Agreement, (iv") publicly propose constituting or announce an intention related to take any of the foregoing actions, (v) following the date any Takeover Proposal or Superior Proposal (other than any tender action described in the foregoing clauses (i), (ii) or exchange offer relating (iii) of this Section 5.5(b) being referred to securities as a "Company Adverse Recommendation Change"). Notwithstanding the foregoing, at any time prior to obtaining the Stockholder Approval, the Board of Directors of the Company may make a Company Adverse Recommendation Change, if such Board of Directors determines in good faith (other than after consultation with outside counsel) that the Offer)) or any material modification thereto failure to do so is first made public or sent or given reasonably likely to constitute a breach of its fiduciary duties to the stockholders of the Company under applicable law; provided, however, that no Company Adverse Recommendation Change may be made in response to a Superior Proposal, until after 72 hours following Parent's receipt of written notice (a "Notice of Adverse Recommendation") from the Company advising Parent that the Board of Directors of the Company intends to make such a Company Adverse Recommendation Change and specifying the terms and conditions of such Superior Proposal (it being understood and agreed that any amendment to the financial terms or received by any other material term of such Superior Proposal shall require a new Notice of Adverse Recommendation and a new 72-hour day period). Following receipt of a Notice of Adverse Recommendation, Parent shall have the Company, fail opportunity to issue a press release publicly (A) reaffirming its recommendation present to the Board of this Agreement, Directors of the Offer and Company revised terms for the consummation of the Merger, and (B) rejecting and not recommending including any proposed amendments or modifications to this Agreement in respect of such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company revised terms. The Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities Directors of the Company (other than the Offer), fail shall consider in good faith any such revised terms and amendments or modifications submitted to issue it by Parent. In determining whether to make a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (v) Proposal, the Board of Directors of the Company has complied with shall take into account Parent's revised terms and any proposed changes to the other provisions terms of this Section 6.02Agreement proposed by Parent in response to a Notice of Adverse Recommendation or otherwise. Before making any Company Adverse Recommendation Change, (w) the Board of Directors of the Company shall consider whether the revised terms offered by Parent are reasonably equivalent or superior from the financial point of view of the Company and its stockholders to the terms of the Superior Proposal and, if such terms are determined by a vote of the full Board determines in good faith (after consultation with of Directors to be reasonably equivalent or superior from the financial point of view of the Company and its outside legal counsel) that stockholders to the failure to take such action would be inconsistent with terms of the exercise Superior Proposal, the Board of its fiduciary duties under applicable LawDirectors of the Company shall accept at a meeting duly called and held, duly adopted resolutions (x) approving and declaring advisable the Company Board determines terms of any such revised proposal by Parent and any definitive agreement proposed in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend such Superior Proposalconnection therewith, (y) directing that the adoption of the terms of any such revised proposal by Parent and any definitive agreement proposed in connection therewith be submitted to a vote at a meeting of the stockholders of the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested recommending that the stockholders of the Company approve and adopt the terms of any such revised proposal by Parent and any definitive agreement proposed in writing by Acquirorconnection therewith. If the Company has elected to make a Company Adverse
(c) In addition to the obligations of the Company set forth in paragraphs (a) and (b) of this Section 5.5, the Company has negotiatedshall promptly, and has caused its Subsidiaries and its and their respective Representatives to, after providing in any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the event within twenty-four (424) Business Day period after such Notice hours, advise Parent orally and in writing of Intended Recommendation Change any bona fide Takeover Proposal or Superior Proposal or any inquiry with respect to amend or that could reasonably be expected to lead to any Takeover Proposal or Superior Proposal, the material terms and conditions of this Agreement and the other agreements contemplated hereby any such that the Takeover Proposal or Superior Proposal no longer constitutes a Superior Proposal and at the end (including any changes thereto). The Company shall keep Parent fully informed of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment change to the terms of any such Takeover Proposal or Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Lawinquiry.
(fd) Nothing contained in this Agreement Section 5.5 shall prohibit the Company or the Company Board from (i) taking and disclosing to the Company’s its stockholders a position with respect to a tender offer contemplated by a third party pursuant to Rules 14d-9 and Rule 14e-2(a) or Item 1012(a) of Regulation M-A promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f(ii) promulgated under making any required disclosure to the Exchange Act and in accordance therewith, pending disclosure stockholders of its position thereunder, and the issuance of any such communication shall notCompany if, in and the good faith judgment of itself, the Board of Directors of the Company (after consultation with outside counsel) failure to so disclose would constitute an Adverse Recommendation Change for purposes a violation of this Agreementapplicable law; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e).
(g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall the Company or its Board of Directors or any of the following constitutecommittee thereof take, or be taken into account in determining the existence ofagree or resolve to take, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt action prohibited by Acquiror of a writSection 5.5(b).
Appears in 1 contract
Sources: Merger Agreement (Merck & Co Inc)
No Solicitation. (a) Until At all times during the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 8.01Pre-Closing Period, the Company shall not, and nor shall cause its Subsidiaries and its and the Company instruct or knowingly permit the Company Subsidiary, or instruct or knowingly permit any of their respective Representatives not to, directly or indirectlyindirectly (other than with respect to Parent or Merger Sub), (i) solicit, initiate, propose or take any action to knowingly encourage any inquiries or the submission of any proposal that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal or otherwise knowingly facilitate any effort or attempt to make an Acquisition Proposal; (ii) except as otherwise expressly permitted by this Section 7.8(a), enter into, continue or otherwise knowingly encourage participate in any discussions or negotiations regarding, furnish to any Third Party any information or data relating to, afford access to the submission business, properties, assets, books or announcement records of the Company or the Company Subsidiary in connection with, or otherwise cooperate with any inquiriesPerson with respect to, proposals any Acquisition Proposal or offers any inquiry, proposal or offer that constitute or would could reasonably be expected to lead to any Takeover an Acquisition Proposal, (ii) provide any non-public information concerning the Company or its Subsidiaries to any Person or group in connection with any Takeover Proposal, or engage in any discussions or negotiations with respect to any Takeover Proposal, ; (iii) approvegrant any waiver, supportamendment or release of or under, adoptor fail to enforce, endorse any confidentiality, standstill or recommend similar agreement (or any Takeover Proposalconfidentiality, (ivstandstill or similar provision of any other Contract) or take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the Corporation Law) inapplicable to exempt any Person (other than Acquiror and Parent or its Affiliates Subsidiaries) or any action taken by any Person (other than Parent or its Subsidiaries) from any Takeover Provision; (iv) enter into any letter of intent, agreement, contract, commitment or agreement in principle with respect to an Acquisition Proposal or enter into any transactions constituting agreement, contract or contemplated by a Takeover Proposalcommitment requiring the Company to abandon, terminate or fail to consummate the Transactions; or (v) otherwise cooperate with or knowingly assist or participate in any such inquiriesresolve, proposals, offers, discussions or negotiations, or (vi) resolve propose or agree to do any of the foregoing. The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with any Person or groups that may be ongoing with respect to any Takeover Proposal or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company or any of its Subsidiaries or any of its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, if in response to an unsolicited bona fide written Acquisition Proposal made by a Third Party after the date hereof in circumstances not involving a breach of this Section 7.8, the Company Board determines in good faith (after consultation with outside legal counsel and a financial advisor of nationally recognized reputation) that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal and, after consultation with outside legal counsel, that the failure to take such action would be inconsistent with the fiduciary duties of the Company Board under applicable Law, then the Company may, at any time prior to the Offer Closing (but in no event after such time), enter into an Acceptable Confidentiality Agreement with such Third Party making such an Acquisition Proposal and thereafter (1) furnish information and data with respect to the Company and the Company Subsidiary and afford access to the business, properties, assets, books or records of the Company or the Company Subsidiary to, and (2) enter into, maintain and participate in discussions or negotiations with, the Third Party making such Acquisition Proposal and its Representatives may in or otherwise cooperate with or assist or participate in, or facilitate, any event inform a Person such discussions or group negotiations; provided, that has the Company will promptly provide to Parent any information and data concerning the Company or the Company Subsidiary or access provided to such Third Party which was not previously made or, available to the Knowledge of the Company, is considering making, a Takeover Proposal Parent. The Company shall ensure that its Representatives are aware of the provisions of this Section 6.027.8(a). The Company and Acquiror hereby agree Without limiting the foregoing, it is agreed that all standstill or similar provisions in the Confidentiality Agreement shall, as any violation of the date of this Agreement, terminate and be of no further force and effect solely to foregoing restrictions by the extent necessary to allow Acquiror to effect the transactions contemplated Company Subsidiary or permitted by this Agreement; provided that no provision any Representative of the Confidentiality Agreement, including any and all standstill Company or similar provisions, the Company Subsidiary shall be deemed to limit be a breach of this Section 7.8 by the ability Company. The Company shall not terminate, waive, amend, release or modify any material provision of Acquiror or any of its Affiliates to take any action contemplated this Acceptable Confidentiality Agreement.
(b) In addition to the other obligations of the Company set forth in this Section 7.8, the Company shall as promptly as practicable, and in any event no later than 24 hours after receipt thereof, notify Parent in writing of any Acquisition Proposal, which notification shall include (i) a copy of the applicable written Acquisition Proposal (or, if oral, a summary of the material terms and conditions of such Acquisition Proposal) and (ii) the identity of the Third Party making such Acquisition Proposal. The Company shall thereafter keep Parent reasonably informed on a reasonably current basis of the status of any material developments, discussions or negotiations regarding any such Acquisition Proposal, and the material terms and conditions thereof (including any change in price or form of consideration or other material amendment thereto), including by providing a copy of material documentation (which shall include any proposals or offers) relating thereto that is exchanged between the Third Party (or its Representatives) making such Acquisition Proposal and the Company (or its Representatives) within 24 hours after the receipt thereof.
(c) Except as expressly permitted by Section 7.8(d), neither the Company Board nor any committee thereof shall (i) withhold, fail to include in (or remove from) the Schedule 14D-9, withdraw, qualify or modify (or publicly propose or resolve to withhold, fail to include in (or remove from) the Schedule 14D-9, withdraw, qualify or modify), in a manner adverse to Parent, the Company Recommendation or (ii) adopt, approve, recommend, submit to the Stockholders or declare advisable any Acquisition Proposal (any action described in this Section 7.8(c) being referred to as a “Company Adverse Recommendation Change”).
(d) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior during the Pre-Closing Period, the Company Board may effect a Company Adverse Recommendation Change or terminate this Agreement to the Acceptance Timeenter into a Specified Agreement, in each case if, and only if, (i) the Company has received a bona fide, written Takeover Proposal from any Person or group that did is not result from a in breach of this Section 6.027.8, and (ii) the Company Board determines in good faith, after consultation with its financial advisor and the Company’s outside legal counsel, that such Takeover Proposal constitutes or could reasonably be expected the failure to result in a Superior Proposal, then make the Company may, upon receipt of an Acceptable Confidentiality Adverse Recommendation Change or terminate this Agreement executed by such Person or group making such Takeover Proposal, (A) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group making such Takeover Proposal; provided, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in enter into a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or Specified Agreement would reasonably be expected to be inconsistent with the fiduciary duties of the Company Board under applicable Law, (iii) the Company has given Parent written notice of the Company Board’s intention to make a Company Adverse Recommendation Change or terminate this Agreement to enter into a Specified Agreement at least five Business Days prior to making any Takeover Proposalsuch Company Adverse Recommendation Change or terminating this Agreement to enter into a Specified Agreement (a “Change of Recommendation Notice”), or any initial request for discussions or negotiations related to any Takeover Proposal, and, (iv) if not in connection with such noticean Intervening Event pursuant to Section 7.8(e), the decision to make a Company Adverse Recommendation Change shall be in connection with an Acquisition Proposal or with the Company’s intent to terminate this Agreement to enter into a Specified Agreement, and subject to the existing terms of confidentiality obligations of the Company shall have complied with clauses (A) through (E), as follows: (A) prior to giving effect to clauses (B) through (E), the Company Board shall have determined that such Acquisition Proposal is a Superior Proposal, (B) the Company shall have made available to Parent in place as of the date of this Agreement, provide writing the material terms and conditions of any such inquiryAcquisition Proposal and copies of all material documents relating to such Acquisition Proposal in accordance with Section 7.8(b), proposal, offer or request and the nature of such request, and thereafter (C) the Company shall keep Acquiror reasonably informed on a prompt have negotiated in good faith with Parent (and timely basis caused its Representatives to negotiate with Parent), to the extent that Parent desires to negotiate, during the five Business Day period provided in the foregoing clause (iii) of the status and material details of discussions this Section 7.8(d) with respect theretoto such proposed revisions to this Agreement or other proposals made by Parent, including any material changes if any, so that the Acquisition Proposal would no longer constitute a Superior Proposal, (D) after considering the results of negotiations with Parent and taking into account the proposals made by Parent, if any, after consultation with its outside legal counsel and a financial advisor of nationally recognized reputation, the Company Board shall have determined in good faith that such Acquisition Proposal remains a Superior Proposal, and, after consultation with its outside legal counsel, that the failure to make the terms of any such inquiry, proposal, offer Company Adverse Recommendation Change or request. Without limiting terminate this Agreement to enter into a Specified Agreement would reasonably be expected to be inconsistent with the generality of the foregoing, and subject to the existing terms of confidentiality obligations fiduciary duties of the Company as in place as of Board under applicable Law and (E) if the date of Company intends to terminate this Agreement to enter into a Specified Agreement, the Company shall promptly (andhave complied with Section 9.1(d)(i). For clarity, in any event, within twenty-four (24the provisions of this Section 7.8(d) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers shall also apply to any Person or group making a Takeover Proposal.
(d) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse material amendment to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than except that any tender or exchange offer relating reference to securities of the Company (other than the Offer)five Business Days shall instead be three Business Days) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”)successive Acquisition Proposals.
(e) Notwithstanding anything to the contrary contained in this Agreement, at any time prior to during the Acceptance TimePre-Closing Period, the Company Board may effect an make a Company Adverse Recommendation Change in response with respect to a Superior Proposal an Intervening Event, if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable Law, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e).
(g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and the Company’s outside legal counsel, that, in light of such Intervening Event, that the failure to make an the Company Adverse Recommendation Change would reasonably be expected to be inconsistent with the exercise fiduciary duties of the Company Board under applicable Law; (ii) Parent shall have received from the Company written notice thereof at least five Business Days prior to making any Company Adverse Recommendation Change, describing the Intervening Event in reasonable detail; (iii) during the five Business Day period provided in the foregoing clause (ii), the Company shall have negotiated in good faith with Parent (and caused its Representatives to negotiate with Parent), to the extent that Parent desires to negotiate, with respect to any proposed revisions to this Agreement or other proposals made by Parent, if any, that would obviate the need to make a Company Adverse Recommendation Change; and (iv) after considering the results of negotiations with Parent and taking into account the proposals made by Parent, if any, after consultation with its outside legal counsel, the Company Board shall have determined in good faith that the failure to make the Company Adverse Recommendation Change would reasonably be expected to be inconsistent with the fiduciary duties of the Company Board under applicable Law.
(f) Nothing in this Section 7.8 shall prohibit the Company from (i) taking and disclosing a position contemplated by Rule 14d-9 or Rule 14e-2(a) under the Exchange Act or complying with Item 1012(a) of Regulation M-A under the Exchange Act (ii) making any required disclosure to the Stockholders, if the Company Board determines in good faith, after consultation with outside legal counsel, that the failure to take such position or make such disclosure would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law or any disclosure requirement under applicable Law, or (iii) making any disclosure that constitutes a stop, look and listen communication pursuant to Rule 14d-9(f) promulgated under the Exchange Act; (vprovided that this Section 7.8(f) no shall not permit the Company Board to make a Company Adverse Recommendation Change has been made for three Change, except to the extent permitted by Section 7.8(c) or Section 7.8(d).
(3g) Business Days after receipt The Company shall, and shall cause the Company Subsidiary and the Company’s and the Company Subsidiary’s respective Representatives to, immediately cease and cause to be terminated any existing solicitations, encouragements, facilitations, discussions or negotiations with any Third Party conducted heretofore by Acquiror of a writthe Company, the Company Subsidiary or their respective Representatives with respect to an Acquisition Proposal.
Appears in 1 contract
No Solicitation. (a) Until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 8.01, the The Company shall not, and shall cause each of its Subsidiaries and its and their respective Representatives not toofficers, directly or indirectlydirectors and employees and their respective agents, financial advisors, investment bankers, attorneys and accountants (such officers, directors, employees, agents, financial advisors, investment bankers, attorneys and accountants, collectively, “Representatives”): (i) solicit, initiate, knowingly facilitate or knowingly encourage the submission or announcement of any inquiries, proposals or offers that constitute or would reasonably be expected to lead to any Takeover Proposal, (ii) provide any non-public information concerning the Company or its Subsidiaries to any Person or group in connection with any Takeover Proposal, or engage in any discussions or negotiations with respect to any Takeover Proposal, (iii) approve, support, adopt, endorse or recommend any Takeover Proposal, (iv) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve or agree to do any of the foregoing. The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion discussions or negotiation negotiations with any Person or groups persons (other than Parent) that may be are ongoing with respect to any a Company Takeover Proposal and (ii) not to, directly or indirectly through intermediaries, (A) solicit, initiate, knowingly encourage or knowingly facilitate any inquiries regarding, or the making of any proposal or offer that constitutes, or could reasonably be expected to lead to, a Company Takeover Proposal, (B) engage in, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any other person any information in connection with or for the purpose of knowingly encouraging or facilitating, a Company Takeover Proposal (other than, solely in response to an unsolicited inquiry, to refer the inquiring person to this Section 6.3 and to limit its conversation or other communication exclusively to such referral), or (C) approve, recommend or enter into, or propose to approve, recommend or enter into, any letter of intent or similar document, agreement, commitment or agreement in principle (whether written, oral, binding or non-binding) with respect to a Company Takeover Proposal.
(b) The Company shall, and shall cause its Subsidiaries to, promptly request any person that has executed a confidentiality or non-disclosure agreement in connection with any actual or potential Company Takeover ProposalProposal that remains in effect as of the date of this Agreement to return or destroy all confidential information in the possession of such person or its Representatives. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed a confidentiality not, and shall cause its controlled Affiliates not to, release any third party from, or waive, amend or modify any provision of, or grant permission under or fail to enforce, any standstill provision in any agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to which the Company or any of its Subsidiaries or any of its and their respective businessescontrolled Affiliates is a party; provided that, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding notwithstanding anything to the contrary contained in this Agreement, if the Company and Board of Directors determines in good faith, after consultation with its Representatives outside legal counsel that the failure to take such action would be inconsistent with the directors’ fiduciary duties under applicable Law, the Company may in waive any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all such standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect provision TABLE OF CONTENTS solely to the extent necessary to allow Acquiror permit a third party to effect make, on a confidential basis to the transactions contemplated or Company Board of Directors, a Company Takeover Proposal, conditioned upon such third party agreeing that the Company shall not be prohibited from providing any information to Parent (including regarding any such Company Takeover Proposal) in accordance with, and otherwise complying with, this Section 6.3. Except to the extent otherwise permitted by this Agreement; provided that no provision the proviso in the foregoing sentence, the Company shall, and shall cause its controlled Affiliates to, enforce the confidentiality and standstill provisions of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreementsuch agreement.
(bc) Notwithstanding anything to the contrary contained in this Agreement, if at any time after the date of this Agreement and prior to the earlier of the Acceptance Time, (i) Time or the receipt of the Company has received Stockholder Approval (whichever is first to occur, the “Cut-off Time”), the Company or any of its Representatives, receives a bona fide, unsolicited written Company Takeover Proposal from any Person or group person that did not result from a knowing or intentional breach of this Section 6.02, 6.3 by the Company or any of its Subsidiaries or their respective Representatives and (ii) if the Company Board of Directors determines in good faith, after consultation with its independent financial advisor and outside legal counsel, that such Company Takeover Proposal constitutes or could is reasonably likely to lead to a Company Superior Proposal and that the failure to take such action would be expected to result in a Superior Proposalinconsistent with the directors’ fiduciary duties under applicable Law, then the Company and its Representatives may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, (Ai) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person person who has made such Company Takeover Proposal if the Company receives from such person an executed confidentiality agreement containing terms that are not less restrictive in any non de minimis respect to the other party than those contained in the First Confidentiality Agreement (it being understood and agreed that such confidentiality agreement need not contain a standstill provision or group otherwise prohibit the making such or amendment of a Company Takeover Proposal) (such confidentiality agreement, an “Acceptable Confidentiality Agreement”); provided, provided that (x) the Company shall substantially concurrently provide with the delivery to Acquiror such person make available to Parent any non-public information (or access) concerning the Company or any of its Subsidiaries that is provided or made available to (such person or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive its Representatives unless such non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, has been previously provided to Parent and (Bii) engage in or otherwise participate in discussions or negotiations with the Person person making such Company Takeover Proposal and its Representatives regarding such Company Takeover Proposal; provided, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) . The Company shall promptly (and, and in any event, event within twenty-four (24) hours) notify Acquiror Parent and the Merger Subs if the Company commences furnishing non-public information and/or commences discussions or negotiations as provided in this Section 6.3(c).
(d) The Company shall promptly (and in no event later than twenty-four (24) hours after receipt) notify Parent in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, Company or any initial of its Representatives receives a Company Takeover Proposal or a request for non-public information concerning relating to the Company or its Subsidiaries from any Person that is reasonably likely to lead to or group who has made or would reasonably be expected to make any that contemplates a Company Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to including the existing terms of confidentiality obligations identity of the person making the Company as in place as of the date of this Agreement, provide Takeover Proposal and the material terms and conditions of any such inquiry, proposal, offer or request and the nature thereof (including an unredacted copy of such requestCompany Takeover Proposal or, and thereafter where such Company Takeover Proposal is not in writing, a description of the terms thereof). The Company shall keep Acquiror Parent reasonably informed informed, on a prompt and timely basis of reasonably current basis, as to the status and material details of discussions with respect thereto, or negotiations relating to such Company Takeover Proposal (including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall by promptly (and, and in any event, within no event later than twenty-four (24) hourshours after receipt) provide Acquiror with unredacted providing to Parent copies of all written inquiriesany correspondence, requestsproposals, proposals or offersindications of interest, including proposed agreements, and/or draft agreements relating to such Company Takeover Proposal). The Company agrees that it and oral summaries its Subsidiaries will not enter into any agreement with any person subsequent to the date of this Agreement that prohibits the Company from providing any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiariesinformation to Parent in accordance with, or its or their respective Representativesotherwise complying with, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposalthis Section 6.3.
(de) Neither the The Company Board nor any committee thereof of Directors shall not (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 or the Offer Prospectus or Merger Proxy Statement/Prospectus when disseminated to the Company’s stockholders stockholders, (B) change, qualify, withhold, withdraw or modify (viior authorize or publicly propose to change, qualify, withhold, withdraw or modify), in any such case in a manner adverse to Parent, the Company Recommendation, (C) following the commencement of publicly make any recommendation in connection with a tender offer or exchange offer relating to securities of the Company (other than the Offer) other than a recommendation against such offer or a temporary “stop, look and listen” communication by the Company Board of Directors of the type contemplated by Rule 14d-9(f) under the Exchange Act (it being understood that the Company Board of Directors may take no position with respect to a Company Takeover Proposal that is a tender offer or exchange offer until the TABLE OF CONTENTS close of business on the tenth (10th) Business Day after the commencement of such tender offer or exchange offer pursuant to Rule 14d-2 under the Exchange Act, without such action being considered a Company Adverse Recommendation Change), (D) adopt, approve or recommend, or publicly propose to adopt, approve or recommend to stockholders of the Company a Company Takeover Proposal, or (E) other than with respect to a tender offer or exchange offer covered by Section 6.3(e)(i)(C), if a Company Takeover Proposal shall have been publicly announced or disclosed, fail to issue a press release publicly announcing within ten recommend against such Company Takeover Proposal or fail to reaffirm the Company Recommendation, in either case on or prior to the later of (10x) the fifth (5th) Business Days Day prior to the then-scheduled Expiration Date of such commencement (A) that the Offer, or, if Parent has made a Meeting Election, prior to the date of the Company recommends rejection of Stockholder Meeting (or any adjournment or postponement thereof), or (y) the third (3rd) Business Day after the Company Takeover Proposal shall have been publicly announced or disclosed, but in any event at least one (1) Business Day prior to such tender scheduled Expiration Date or exchange offer and (Bthe Company Stockholder Meeting, as applicable) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in this clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an a “Company Adverse Recommendation Change”), or (ii) authorize, cause or permit the Company or any of its Subsidiaries to enter into any letter of intent, memorandum of understanding, agreement (including an acquisition agreement, merger agreement, joint venture agreement or other agreement) or agreement in principle with respect to any Company Takeover Proposal (other than an Acceptable Confidentiality Agreement entered into in accordance with Section 6.3(b) or (c)) (a “Company Acquisition Agreement”).
(ef) Notwithstanding anything to the contrary contained in this Agreement, at any time prior to the Acceptance Cut-off Time, but not after, the Company Board may effect an of Directors may, in respect of a bona fide, written unsolicited Company Superior Proposal that did not result from a breach of Section 6.3, (1) make a Company Adverse Recommendation Change or (2) terminate this Agreement in response accordance with Section 8.1(f) in order to enter into a definitive agreement for such Company Superior Proposal Proposal, in either case if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) prior to taking such action, the Company Board determines of Directors has determined in good faith (faith, after consultation with its independent financial adviser and outside legal counsel) , that the failure to take such action would be inconsistent with the exercise of its directors’ fiduciary duties under applicable Law; provided, however, that, prior to taking either such action, (xw) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, has given Parent at least four (4) Business Days Days’ prior to effecting any Adverse Recommendation Change, written notice of its intent intention to take such action, specifying including the reasons therefor terms and including conditions of, and the identity of the person making, any such Company Superior Proposal and has contemporaneously provided to Parent a copy of the proposed acquisition agreement and any other documents related to such Company Superior Proposal or any proposed Company Acquisition Agreements and a copy of any related financing commitments in the Company’s possession (or, in each case, if not provided in writing to the Company, a “Notice written summary of Intended Recommendation Change”the terms thereof), and (zx) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives toto negotiate, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith with Parent during such notice period, to the extent Parent wishes to negotiate, concerning any revisions to the terms of this Agreement proposed by Parent, and (y) following the end of such notice period, the Company Board of Directors shall have determined, after consultation with its independent financial advisor and outside legal counsel, and giving due consideration to the revisions to the terms of this Agreement to which Parent has committed in writing, that the Company Superior Proposal would nevertheless continue to constitute a Company Superior Proposal (assuming the revisions committed to by Parent were to be given effect) and that the failure to take such action would be inconsistent with the directors’ fiduciary duties under applicable Law, and (z) in the event of any change to any of the financial terms (including the form, amount and timing of payment of consideration) or any other material terms of such Company Superior Proposal, the Company shall, in each case, have delivered to Parent an additional notice consistent with that described in clause (w) above of this proviso and a new notice period under clause (w) of this proviso shall commence (except that the four (4) Business Day notice period after such Notice of Intended Recommendation Change referred to amend the terms and conditions in clause (A) above of this Agreement proviso shall instead be equal to the longer of (1) two (2) Business Days and (2) the other agreements contemplated hereby such that period remaining under the Superior Proposal no longer constitutes a Superior Proposal and at notice period under clause (w) of this proviso immediately prior to the end delivery of such four additional notice under this clause (4z)) Business Day period (as it may be extended pursuant to the following proviso) during which time the Company Board again makes shall be required to comply with the determinations described in requirements of this Section 6.3(f) anew with respect to such additional notice, including clauses (w) through (z) above of this proviso; and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered has complied in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied all material respects with its obligations in under this Section 6.02(e).
(g) 6.3. Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreementherein, neither the Company Board may, at nor any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there Company Subsidiary shall occur or arise after the date of enter into any Company Acquisition Agreement unless this Agreement a material event, material development or material change has been terminated in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the accordance with its terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement Termination Fee has been paid in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines manner provided in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writSection 8.3.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Alexion Pharmaceuticals Inc)
No Solicitation. (a) Until From and after the earlier of date hereof until the Effective Time and or the valid termination of this Agreement pursuant to Article IX hereof, except as set forth in this Section 8.017.3, the neither Company nor Acquiror shall not, and shall cause its Subsidiaries and its and authorize or permit any of their respective Representatives not todirectors, officers, employees, investment bankers, attorneys, accountants or other advisors or representatives (such directors, officers, employees, investment bankers, attorneys, accountants, other advisors and representatives being referred to herein, collectively, as “Representatives”), to directly or indirectly, :
(i) solicit, initiate, knowingly induce, encourage or take any other action to facilitate any inquiries or knowingly encourage the submission or announcement making of any inquiriesproposal or offer that constitutes, proposals or offers that constitute or would could reasonably be expected to lead to, any Acquisition Proposal (as defined in Section 7.3(d) hereof), including (without limitation) amending or granting any waiver or release under any standstill or similar agreement with respect to any Takeover ProposalCompany Common Stock or Acquiror Common Stock, respectively; or
(ii) provide any non-public information concerning the Company enter into, continue or its Subsidiaries to any Person or group in connection with any Takeover Proposal, or engage otherwise participate in any discussions or negotiations regarding, furnish to any person any information with respect to any Takeover Proposalto, (iii) approve, support, adopt, endorse or recommend any Takeover Proposal, (iv) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions effort or negotiationsattempt by any person with respect to, or (vi) resolve or agree otherwise cooperate in any way with, any Acquisition Proposal. Notwithstanding the foregoing, prior to do any the approval of the foregoing. The Company shallVoting Proposal at the Company Stockholder Meeting (the “Specified Time”), and shall cause its Subsidiaries and its and their respective Representatives tothe Company may, immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with any Person or groups that may be ongoing with respect to any Takeover Proposal or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to extent required by the Takeover Proposal or to fiduciary obligations of the Company or any of its Subsidiaries or any of its and their respective businessesBoard, operations or affairs heretofore furnished as determined in good faith by the Company or its Subsidiaries or any of their respective Representatives Board, after consultation with outside counsel, in response to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover an unsolicited Acquisition Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received a bona fide, written Takeover Proposal from any Person or group that did not result from a breach or a deemed breach of this Section 6.027.3 and that is, or that is reasonably likely to result in, a Superior Proposal that did not result from a breach by the Company of this Section 7.3, and (ii) the Company Board determines in good faith, after consultation subject to compliance with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or could reasonably be expected to result in a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover ProposalSection 7.3(c), (Ax) furnish information (including non-public information) with respect to the Company to the person making such Acquisition Proposal and its Subsidiaries representatives pursuant to a customary confidentiality agreement not less restrictive of the Person or group making such Takeover Proposal; provided, that (x) other party than the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror Confidentiality Agreement and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage participate in discussions or negotiations with the Person making such Takeover Proposal person and its representative regarding such Takeover Acquisition Proposal; provided, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in and Acquiror agree that any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions violation of the Company Board referred to restrictions set forth in this Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, 7.3 by any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders Representative of the Company or received by Acquiror, as the Companycase may be, fail or their respective Affiliates, whether or not such Person is purporting to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities act on behalf of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable Law, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Changeas the case may be, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and or their respective Representatives toAffiliates, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes shall constitute a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e).
(g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known breach by the Company or Acquiror, as the case may be, of this Section 7.3. The Company and Acquiror shall enforce, to the fullest extent permitted under applicable law, the provisions of any standstill, confidentiality or similar agreement entered into by the Company Board or Acquiror, as the case may be, or any of the date their subsidiaries or their respective Affiliates or Representatives, including (without limitation) where necessary, obtaining injunctions to prevent any breaches of this Agreement such agreements and does not relate to any Takeover Proposal or enforce specifically the terms and conditions of this Agreement, which event, development or change provisions thereof in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writcourt having jurisdiction.
Appears in 1 contract
No Solicitation. (a) Until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 8.01, the The Company shall will not, and shall cause each of its Subsidiaries and its and their respective officers, trustees and directors not to, and will not authorize and shall use commercially reasonable efforts to cause its and their other Representatives not to, directly or indirectly, :
(i) solicit, initiate, knowingly facilitate or knowingly encourage or knowingly facilitate the submission or announcement of any inquiriesAcquisition Proposal or Acquisition Inquiry (including by approving any transaction, proposals or offers approving any Person acquiring Company Capital Shares such that constitute or would reasonably be expected to lead to any Takeover Proposal, the Person does not become an “interested stockholder,” for purposes of the MGCL);
(ii) provide furnish any non-public information concerning regarding the Company or its Subsidiaries Acquired Companies to any Person Third Party with respect to an Acquisition Proposal or group Acquisition Inquiry;
(iii) engage in connection with any Takeover Proposal, or engage otherwise participate in any discussions or negotiations with any Third Party with respect to any Takeover Proposal, (iii) approve, support, adopt, endorse Acquisition Proposal or recommend any Takeover Proposal, Acquisition Inquiry;
(iv) take otherwise knowingly facilitate any action effort or attempt to make the provisions of an Acquisition Proposal or Acquisition Inquiry;
(v) terminate, waive, amend, release or modify any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction provision of, grant permission under, or take any other action having a third party becoming an “interested stockholder” undersimilar effect with respect to, Section 203 of any standstill, confidentiality or similar agreement to which the Corporation Law) inapplicable Acquired Companies is a party, except to any Person other than Acquiror and its Affiliates or the extent necessary to any transactions constituting or contemplated by allow the counterparty thereof to make a Takeover Proposal, (v) otherwise cooperate private Acquisition Proposal to the Company Board in accordance with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or this Agreement;
(vi) resolve provide any further information with respect to the Acquired Companies or any Acquisition Proposal (and shall turn off any data rooms maintained by the Company) to any Third Party or its Representatives;
(vii) approve or recommend an Acquisition Proposal or enter into any Alternative Acquisition Agreement; or
(viii) resolve, propose or agree to do any of the foregoing. The Company shall; provided, and shall cause its Subsidiaries and its and their respective Representatives tohowever, immediately cease and cause to be terminated any solicitationthat, encouragement, discussion or negotiation with any Person or groups that may be ongoing with respect to any Takeover Proposal or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company or any of its Subsidiaries or any of its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding notwithstanding anything to the contrary contained in this Agreement, but subject to the Company’s compliance with the provisions of this Section 5.2, prior to obtaining the Company Shareholder Approval, the Company and its Representatives may engage in any event inform a Person such discussions or group that has negotiations and provide any such information in response to an unsolicited bona fide written Acquisition Proposal made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of after the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
Agreement (b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received a bona fide, written Takeover Proposal from any Person or group that did not result from a breach of this Section 6.02, and (ii5.2) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or could reasonably be expected to result in a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, if: (A) furnish information (including non-public information) with respect prior to the Company and its Subsidiaries to the Person or group making such Takeover Proposal; provided, that (x) the Company shall substantially concurrently provide to Acquiror providing any non-public information (or access) concerning regarding the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided Third Party in response to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover an Acquisition Proposal; provided, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of receives from such determination Third Party (or there is then in effect with such party) an executed Acceptable Confidentiality Agreement, a copy of the Company Board as executed Acceptable Confidentiality Agreement shall be provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall Parent promptly (and, in any event, within twenty-four (24) hours); and (B) notify Acquiror the Company Board (or a committee thereof) determines in writing in the event that good faith, after consultation with the Company’s outside legal counsel and financial advisor, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that such Acquisition Proposal either constitutes a Superior Proposal or could reasonably be expected to lead to any Takeover a Superior Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly Promptly (and, in any event, within twenty-four (24) hours) with providing any non-public information to such Third Party, the Company shall make such non-public information available to Parent (to the extent such non-public information has not been previously made available to Parent).
(b) If the Company receives an Acquisition Proposal or Acquisition Inquiry, then the Company shall:
(i) promptly (and in no event later than twenty-four (24) hours after receipt of such Acquisition Proposal or Acquisition Inquiry): (1) notify Parent in writing of such Acquisition Proposal or Acquisition Inquiry; (2) identify the Third Party or group making such Acquisition Proposal or Acquisition Inquiry; (3) indicate the material terms and conditions of such Acquisition Proposal or Acquisition Inquiry, to the extent known, and (4) provide Acquiror to Parent copies of any such Acquisition Proposal or Acquisition Inquiry made in writing and any proposed agreements related thereto;
(ii) promptly (and in no event later than twenty-four (24) hours) notify Parent in writing if it enters into discussions or negotiations concerning any Acquisition Proposal or provides nonpublic information to any Third Party in each case in accordance with unredacted copies Section 5.2; and
(iii) keep Parent reasonably informed, on a reasonably prompt basis, of any material change to the status and any change to the financial and other material terms of any and all Acquisition Proposals or Acquisition Inquiries it has received (including any amendments and updates thereto), including by providing a copy of all written inquiriesproposals, requests, proposals or offers, including drafts of proposed agreementsagreements or correspondence relating thereto. Neither the Company nor any of its Subsidiaries shall, and oral summaries after the date of this Agreement, enter into any oral inquiries, requests, proposals confidentiality or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating similar agreement that would prohibit it from providing such information to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover ProposalParent.
(dc) Neither the Company Board nor any committee thereof shall shall, except as permitted by this Section 5.2: (i) withdraw withdraw, withhold, modify, amend or rescind (or modify or qualify qualify, in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub)the Parent Parties, the Company Board Recommendation Recommendation; (ii) adopt, endorse, approve, recommend or the findings or conclusions of otherwise declare advisable any Acquisition Proposal; (iii) fail to include the Company Board referred Recommendation in the Proxy Statement; (iv) if any Acquisition Proposal (other than an Acquisition Proposal in the circumstances described in clause “(v)” below) has been made public, fail to in Section 4.03(b), (ii) approve publicly affirm or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit reaffirm the Company Board Recommendation upon request of Parent within five (5) Business Days after the date an Acquisition Proposal shall have been publicly announced (or if the Shareholders Meeting is scheduled to execute or enter intobe held within five (5) Business Days from the date an Acquisition Proposal is publicly announced, promptly and in any event prior to the date on which the Shareholders Meeting is scheduled to be held); provided that Parent may make any such request only once with respect to such Acquisition Proposal unless such Acquisition Proposal is subsequently materially modified in which case Parent may make such request once each time such material modification is made is; (v) fail to publicly recommend against any Acquisition AgreementProposal that is a tender offer or exchange offer subject to Regulation 14D under the Exchange Act (including, for these purposes, by taking no position with respect to the acceptance of such tender offer or exchange offer by the Company’s shareholders) within ten (iv10) Business Days after the commencement of such tender or exchange offer; (vi) publicly propose or publicly announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger actions (any action described in clause “(i), (ii), (iii), (iv), (v), ” through clause “(vi) )” being referred to as a “Change in Recommendation”); or (vii) being referred approve, adopt, declare advisable or recommend (or agree to, resolve or propose to as approve, adopt, declare advisable or recommend), or cause or permit any Acquired Company to enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, share purchase agreement, asset purchase agreement, share exchange agreement, option agreement or other Contract (other than an Acceptable Confidentiality Agreement entered into in compliance with Section 5.2(a)) contemplating an Acquisition Proposal or requiring the Company or the Operating Partnership to abandon, terminate or fail to consummate the Transactions (any such agreement, an “Adverse Recommendation ChangeAlternative Acquisition Agreement”)) or otherwise resolve or agree to do so.
(ed) Notwithstanding anything to the contrary contained in this Agreement, at any time prior to obtaining the Acceptance TimeCompany Shareholder Approval, the Company Board may effect an Adverse may:
(i) make a Change in Recommendation Change in response to a Superior an unsolicited written bona fide Acquisition Proposal and/or terminate this Agreement pursuant to Section 7.1(h) if and only if: (vA) such Acquisition Proposal is not withdrawn and the Company has complied with the other provisions is not in breach of this Section 6.02, 5.2; (wB) the Company Board (or a committee thereof) determines in good faith after consultation with the Company’s outside legal counsel and financial advisor, (1) that such Acquisition Proposal would, if this Agreement was not amended or an alternative transaction with Parent were not entered into, constitute a Superior Proposal and (2) that in light of such Acquisition Proposal, a failure to make a Change in Recommendation and/or to cause the Company to terminate this Agreement pursuant to Section 7.1(h), absent revision to the terms of this Agreement as contemplated in clause “(D)” below, would be inconsistent with the Company Board’s fiduciary obligations to the Company’s shareholders under applicable Law; (C) the Company delivers to Parent a written notice (a “Superior Proposal Notice”) that includes (1) a statement that the Company Board intends to make a Change in Recommendation and/or terminate this Agreement pursuant to Section 7.1(h) as described above, (2) the identity of the Third Party or group making the Acquisition Proposal and (3) all material terms and conditions of the Acquisition Proposal (including copies of all material documents, relevant proposed agreements, amendments and financing commitments, relating to the proposed Alternative Acquisition Agreement); (D) during the four (4) Business Day period commencing on the date of Parent’s receipt of such Superior Proposal Notice, the Company shall have made its Representatives reasonably available for the purpose of engaging in negotiations and shall have negotiated, and shall have caused its Representatives to negotiate, in good faith with Parent (to the extent Parent desires to negotiate) regarding a possible amendment of this Agreement or a possible alternative transaction so that the Acquisition Proposal that is the subject of the Superior Proposal Notice ceases to constitute a Superior Proposal; (E) after the expiration of the negotiation period described in clause “(D)” above, the Company Board (or a committee thereof) shall have determined in good faith, after consultation with its outside legal counsel and financial advisor, and after taking into account any amendments to this Agreement proposed in writing by the Parent Parties as a result of the negotiations contemplated by clause “(D)” above, that (1) such Acquisition Proposal continues to constitute a Superior Proposal, and (2) the failure to make a Change in Recommendation and/or terminate this Agreement pursuant to Section 7.1(h) would be inconsistent with the Company Board’s fiduciary obligations to the Company’s shareholders under applicable Law; and (F) in the event of any change to any of the financial terms (including the form, amount and timing of payment of consideration) or any other material terms of such Acquisition Proposal, the Company shall, in each case, have delivered to Parent an additional notice consistent with that described in clause “(C)” above and a new notice period shall commence (except that the four (4) Business Day notice period referred to in clause “(D)” above shall instead be equal to the longer of (1) two (2) Business Days and (2) the period remaining under the notice period under clause “(D)” immediately prior to the delivery of such additional notice under this clause “(F)” during which time the Company shall be required to comply with the requirements of this Section 5.2 anew with respect to such additional notice); or
(ii) make a Change in Recommendation not related to an Acquisition Proposal if: (A) any material change in circumstances with respect to the Company and its Subsidiaries, taken as a whole that, in each case, occurred or arose after the date hereof, which (x) was not known by, nor reasonably foreseeable to, the Company Board as of, or prior to, the date hereof and (y) becomes known to the Company Board prior to the Company Shareholder Approval (any such material change in circumstances described in this clause (A) referred to as a “Change in Circumstances”); provided, however, that none of the following will constitute, or be considered in determining whether there has been, a Change in Circumstances: (1) the receipt by the Company of, existence of or terms of an Acquisition Proposal or Acquisition Inquiry or any matter relating thereto or consequence thereof, (2) any change in Law or GAAP, (3) changes, in and of itself, in the market price or trading volume of the Company Common Shares or the credit rating of the Company or (4) the fact that, in and of itself, the Company meets or exceeds internal or public projections or forecasts or estimates of revenues, earnings or other financial results for any period; (B) the Company Board (or a committee thereof) determines in good faith, after consultation with its outside legal counsel, that, in light of such Change in Circumstances, a failure to effect a Change in Recommendation would be inconsistent with the Company Board’s fiduciary obligations to the Company’s shareholders under applicable Laws; (C) such Change in Recommendation is not effected prior to the fourth (4th) Business Day after Parent receives written notice from the Company that includes (1) a statement confirming that the Company Board intends to effect such Change in Recommendation and (2) a reasonably detailed description of the Change in Circumstances; (D) during such four (4) Business Day period, if requested by Parent, the Company engages in good faith negotiations, and shall have caused its Representatives to engage in good faith negotiations, with Parent to amend this Agreement, or to enter into an alternative transaction in order to obviate the need to make such Change in Recommendation; and (E) at the end of such four (4) Business Day period, the Company Board (or a committee thereof) determines in good faith, after consultation with its outside legal counsel and after taking into account any amendments to this Agreement proposed in writing by the Parent Parties as a result of the negotiations contemplated by clause “(D)” above, that, in light of such Change in Circumstances, a failure to effect a Change in Recommendation would continue to be inconsistent with the Company Board’s fiduciary obligations to the Company’s shareholders under applicable Law.
(e) The Company agrees that all references to the Company or the Company Board in this Section 5.2 shall include its Representatives, all references to the Company in this Section 5.2, shall include the Company Board and any breach of this Section 5.2 by the Company Board or any Representatives of the Company or the Company Board will be deemed to be a breach of this Agreement by the Company.
(f) Nothing contained in this Section 5.2 or elsewhere in this Agreement shall prohibit the Company, the Company Board or its Representatives from: (i) taking and disclosing to the shareholders of the Company a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or making a statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9(f) promulgated under the Exchange Act, or from issuing a “stop, look and listen” statement pending disclosure of its position thereunder, provided that any such disclosure does not contain an express Change in Recommendation; (ii) disclosing to the Company’s shareholders any factual information regarding the business, financial condition or results of operations of the Company or the fact that an Acquisition Proposal has been made, the identity of the party making such Acquisition Proposal or the material terms of such Acquisition Proposal, in each case, that the Company Board (or a committee thereof) determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties is required under applicable Law, Law (xit being understood that disclosure under this clause (ii) shall not limit or otherwise affect the obligations of the Company or the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisorsor any committee thereof) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of under this Agreement and the other agreements contemplated hereby no such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provideddisclosure shall, furthertaken by itself, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendmentChange in Recommendation), ; or (iii) communicating in writing with any Third Party (or the Company shall notify Acquiror Representatives of such material revision in compliance with Person) that makes any Acquisition Proposal or Acquisition Inquiry to the extent necessary to direct such Third Party to the provisions of this Section 6.02(c5.2; provided, however, that (A) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse any Change in Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and except in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e).
(g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writ
Appears in 1 contract
No Solicitation. (a) Until Except as permitted by this Section 5.03, during the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 8.01Pre-Closing Period, the Company Acquired Companies shall not, and shall cause its Subsidiaries their officers and its directors not to, and shall use reasonable best efforts to cause their respective other Representatives not to, directly or indirectly, (i) continue any solicitation, knowing encouragement, discussions or negotiations with any Persons that may be ongoing with respect to an Acquisition Proposal; (ii) (A) solicit, initiate, initiate or knowingly facilitate or knowingly encourage (including by way of furnishing non-public information) any inquiries regarding, or the submission or announcement making of any inquiriesproposal or offer that constitutes, proposals or offers that constitute or would reasonably be expected to lead to, an Acquisition Proposal (other than discussions solely to clarify the terms and conditions of such proposal or offer), (B) engage in, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Takeover Proposal, (ii) provide other Person any non-public information concerning the Company or its Subsidiaries to any Person or group in connection with any Takeover Proposalwith, or engage in for the purpose of soliciting or knowingly encouraging or facilitating, an Acquisition Proposal or any discussions proposal or negotiations with respect offer that would reasonably be expected to any Takeover Proposallead to an Acquisition Proposal (other than to state that the terms of this provision prohibit such discussion), (iiiC) approve, support, adopt, endorse or recommend or enter into any Takeover Proposalletter of intent, acquisition agreement, agreement in principle or similar agreement with respect to an Acquisition Proposal or any proposal or offer that would reasonably be expected to lead to an Acquisition Proposal (ivother than an Acceptable Confidentiality Agreement) or (D) take any action to make exempt any Person (other than Parent and its Subsidiaries) from the restrictions on “business combinations” or any similar provision contained in applicable Takeover Laws or the Company’s organizational and other governing documents; (iii) subject to the fiduciary duties of the Board of Directors, waive or release any Person from, forebear in the enforcement of, or amend any standstill agreement or any standstill provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, Contract; or (viiv) resolve or agree to do any of the foregoing. The As promptly as reasonably practicable (and in any event within two business days) following the date hereof, the Company shallshall discontinue electronic or physical data room access granted, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion request the prompt return or negotiation with any Person or groups that may be ongoing with respect to any Takeover Proposal or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person destruction (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy extent provided for by the applicable confidentiality agreement) of all non-public information or documents previously furnished to any Person (other than Parent, its Affiliates and materials relating their respective Representatives) that has made or has indicated an intention to make an Acquisition Proposal and all material incorporating such information created by any such Person.
(b) If at any time on or after the date of this Agreement and prior to the Takeover Proposal or to Offer Acceptance Time the Company or any of its Subsidiaries or any of its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received receives a bona fide, fide written Takeover Acquisition Proposal from any Person or group that of Persons, which Acquisition Proposal was made on or after the date of this Agreement and did not result from a material breach of this Section 6.025.03, and (ii) the Company Board of Directors determines in good faith, after consultation with its financial advisor and outside legal counsel, that such Takeover Acquisition Proposal constitutes or could would reasonably be expected to result in a Superior ProposalOffer and that the failure to take such action described in clauses (x) and (y) below would be inconsistent with its fiduciary duties under applicable Legal Requirements, then then, notwithstanding anything in Section 5.03(a) to the contrary, the Company mayand its Representatives may (x) furnish, upon receipt of pursuant to an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover ProposalAgreement, (A) furnish information (including non-public information) with respect to the Company and its Subsidiaries Acquired Companies to the Person or group making of Persons who has made such Takeover Acquisition Proposal; provided, provided that (x) the Company shall substantially concurrently as promptly as practicable (and in any event within 36 hours) provide to Acquiror Parent any non-public information (or access) concerning the Company or its Subsidiaries Acquired Companies that is provided to (or access which is given to) any Person or group and which to the extent access to such information was not previously provided to Acquiror Parent or its Representatives; and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company engage in or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage otherwise participate in discussions or negotiations with the Person or group of Persons making such Takeover Proposal regarding such Takeover Acquisition Proposal; provided, howeverin the case of clauses (x) and (y), that at or prior to or concurrently with the first time that the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice furnishes any information to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, participates in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to with any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer Person on or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of after the date of this Agreement, the Company shall provide written notice to Parent of such determination in good faith of the Board of Directors as provided for above.
(c) During the Pre-Closing Period, the Company shall (i) promptly (and, and in any event, event within twenty-four (2436 hours after knowledge of receipt by an executive officer or director of the Company) hours) provide Acquiror with unredacted copies of all written inquiries, requests, notify Parent orally and in writing if any proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, offers with respect to an Acquisition Proposal are received by the CompanyCompany or any of its Representatives and provide to Parent a copy of any written Acquisition Proposal (including any proposed term sheet, its Subsidiariesletter of intent, acquisition agreement or its other agreement with respect thereto) and a summary of any material unwritten terms and conditions thereof (and indicate the identity of such Person), and (ii) keep Parent reasonably informed of any material developments, discussions or their respective Representativesnegotiations regarding any Acquisition Proposal on a prompt basis (and in any event within 36 hours of any request by Parent for an update as to the status of any such material development, in each case relating to a Takeover Proposal, discussion or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposalnegotiation).
(d) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the contrary Nothing in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable Law, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept 5.03 or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law.
(f) Nothing contained elsewhere in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party of the Company any “stop, look and listen” communication pursuant to Rules 14d-9 and 14e-2(aRule 14d-9(f) promulgated under the Exchange Act or from issuing a “stoptaking and disclosing such other position or disclosure as is required under Rule 14e-2(a), look and listen” communication, as defined in Rule 14d-9(f14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of or from taking any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreementaction necessary to comply with applicable Legal Requirements; provided, however, that no that, the Board of Directors shall not effect a Company Adverse Change Recommendation Change may be made unless the Company shall have first complied except in accordance with its obligations in Section 6.02(e6.01(b).
(ge) Notwithstanding anything to The Company agrees that in the contrary contained in event any of its Subsidiaries or any Representative of any Acquired Company acting on behalf of the Company takes any action that, if taken by the Company, would constitute a breach of this Section 6.02 or elsewhere in this Agreement5.03, the Company Board may, at any time prior shall be deemed to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date be in breach of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writSection 5.03.
Appears in 1 contract
Sources: Merger Agreement (Immunomedics Inc)
No Solicitation. (a) Until the earlier of the Effective Time eMerge represents and the valid termination of this Agreement pursuant to Section 8.01, warrants that it has terminated any discussions or negotiations with any Person other than the Company shall concerning any Takeover Proposal prior to the date hereof. From and after the date hereof, eMerge will not, and shall cause use its Subsidiaries and commercially reasonable efforts not to permit any of its and their respective Representatives not officers, directors, employees, attorneys, financial advisors, agents or other representatives (collectively, “eMerge Representatives”) to, directly or indirectly, (i) solicit, initiate, knowingly facilitate initiate or knowingly encourage (including by way of furnishing nonpublic information) any Takeover Proposal from any Persons or engage in or continue discussions or negotiations relating thereto, or take any other action to facilitate any inquiries or the submission or announcement making of any inquiriesproposal that constitutes, proposals or offers that constitute or would may reasonably be expected to lead to to, any Takeover Proposal, (ii) provide any non-public information concerning the Company or except that, so long as eMerge is in compliance with its Subsidiaries to any Person or group obligations under this Section 5.05, eMerge may, in connection with any Takeover Proposal, or engage in any discussions or negotiations with respect to any Takeover Proposal, (iii) approve, support, adopt, endorse or recommend any Takeover Proposal, (iv) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve or agree to do any of the foregoing. The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with any Person or groups that may be ongoing with respect to any Takeover Proposal or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating response to a Takeover Proposal or potential Takeover that the eMerge board of directors determines is reasonably likely to constitute a Superior Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company that was not solicited by eMerge or any of its Subsidiaries or any of its eMerge Representatives, and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received a bona fide, written Takeover Proposal from any Person or group that did not result from a breach of this Section 6.02Section, and (ii) subject to providing prior written notice of its decision to take such action to the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or could reasonably be expected to result in a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover ProposalCompany, (Ax) furnish information (including non-public information) with respect to the Company and its Subsidiaries eMerge to the any Person or group making such a Takeover Proposal; providedProposal pursuant to a customary confidentiality agreement with terms substantially similar to those of the Confidentiality Agreement, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage participate in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided. Without limiting the foregoing, howeverit is agreed that any action that is in violation of the restrictions set forth in the preceding sentence by any eMerge Representative, that prior whether or not such eMerge Representative is purporting to act on behalf of eMerge or concurrently with otherwise, shall be deemed to be a breach of this Section 5.05 by eMerge. eMerge will advise the Company taking such actions orally (within one business day) and in writing (as described in clauses (Apromptly as practicable) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided receipt of any inquiry or request for in clause (ii) above, together information with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiariesrespect to, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could which would reasonably be expected to lead to to, any Takeover Proposal. In addition, or any initial request for non-public information concerning eMerge will provide the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover ProposalCompany, or any initial request for discussions or negotiations related to any Takeover Proposalwithin one business day of eMerge’s receipt, and, in connection with such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other and any change in the material terms and conditions thereof) and will promptly (but in no case later than any tender or exchange offer relating to securities of two business days thereafter) notify the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities determination by eMerge’s board of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) directors that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable Law, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e).
(g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writbeen
Appears in 1 contract
No Solicitation. (a) Until The Company represents and warrants that it has terminated any discussions or negotiations with any party (other than Parent) concerning any Takeover Proposal prior to the earlier of date hereof. From and after the Effective Time and the valid termination of this Agreement pursuant to Section 8.01date hereof, the Company shall will not, and shall cause use its reasonable best efforts not to permit any of its officers, directors, employees, attorneys, financial advisors, agents or other representatives or those of any of its Subsidiaries and its and their respective Representatives not (collectively, “Company Representatives”) to, directly or indirectly, (i) solicit, initiate, knowingly facilitate initiate or knowingly encourage (including by way of furnishing nonpublic information) any Takeover Proposal from any persons or engage in or continue discussions or negotiations relating thereto, or take any other action to facilitate any inquiries or the submission or announcement making of any inquiriesproposal that constitutes, proposals or offers that constitute or would may reasonably be expected to lead to to, any Takeover Proposal, (ii) provide any non-public information concerning except that, so long as the Company or is in compliance with its Subsidiaries to any Person or group obligations under this Section 5.04, the Company may, in connection with any Takeover Proposal, or engage in any discussions or negotiations with respect to any Takeover Proposal, (iii) approve, support, adopt, endorse or recommend any Takeover Proposal, (iv) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve or agree to do any of the foregoing. The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with any Person or groups that may be ongoing with respect to any Takeover Proposal or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating response to a Takeover Proposal or potential Takeover that the board of directors determines is reasonably likely to constitute a Superior Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to that was not solicited by the Company or any of its Subsidiaries or any of its Company Representatives, and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received a bona fide, written Takeover Proposal from any Person or group that did not result from a breach of this Section 6.02Section, and (ii) the Company Board determines in good faith, after consultation with subject to providing prior written notice of its financial advisor and outside legal counsel, that decision to take such Takeover Proposal constitutes or could reasonably be expected action to result in a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover ProposalParent, (Ax) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group any person making such a Takeover Proposal; providedProposal pursuant to a customary confidentiality agreement with terms substantially similar to those of the agreement to which Parent is a party with the Company, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) participate in discussions or negotiations regarding such Takeover Proposal. Without limiting the Company shall take reasonable steps to safeguard foregoing, it is agreed that any commercially sensitive non-public information action that is in violation of the restrictions set forth in the preceding sentence by any executive officer or director of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure any Subsidiary of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, whether or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected not such person is purporting to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed act on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders behalf of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable LawSubsidiaries or otherwise, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), breach of this Section 5.04 by the Company. The Company shall notify Acquiror of such material revision in compliance with Section 6.02(cwill advise Parent orally (within one business day) and in writing (as promptly as practicable) of the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror receipt of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e).
(g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writinquiry or
Appears in 1 contract
No Solicitation. (a) Until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 8.01, the Company RG shall not, and shall cause its Subsidiaries and its and their respective Representatives not to, directly or indirectly, take (inor shall RG authorize or permit any RG Subsidiary, officers, directors, employees, representatives, investment bankers, attorneys, accountants or other agents or affiliates to take) solicitany action to (a) encourage, initiate, knowingly facilitate solicit or knowingly encourage initiate the submission or announcement of any inquiriesAcquisition Proposal (as defined in this Section 5.1), proposals (b) enter into any agreement with respect to any Acquisition Proposal, or offers (c) participate in any way in discussions or negotiations with, or furnish any information to, any person in connection with, or take any other action to facilitate any inquiries or the making of any proposal that constitute constitutes, or would may reasonably be expected to lead to, any Acquisition Proposal. RG will promptly communicate to FMP in writing the terms of any Takeover Proposalproposal or inquiry, (ii) provide including the identity of the person and its affiliates making the same, that it may receive in respect of any non-public information concerning the Company or its Subsidiaries to any Person or group in connection with any Takeover Proposalsuch transaction, or engage of any such information requested from it or of any such negotiations or discussions being sought to be initiated with it. Notwithstanding the foregoing, neither the provisions contained in any this Section 5.1 or elsewhere in this Agreement shall prohibit the Board of Directors of RG from (i) furnishing information to or entering into discussions or negotiations with respect with, any person or entity that makes an unsolicited bona fide written proposal to any Takeover Proposalacquire RG pursuant to a merger, (iii) approveconsolidation, supportshare exchange, adoptpurchase of a substantial portion of the assets, endorse or recommend any Takeover Proposal, (iv) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” combination or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve or agree to do any of the foregoing. The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with any Person or groups that may be ongoing with respect to any Takeover Proposal or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company or any of its Subsidiaries or any of its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreementtransaction, if at any time prior to the Acceptance Time, (i) the Company has received a bona fide, written Takeover Proposal from any Person or group that did not result from a breach Board of this Section 6.02, and (ii) the Company Board Directors of RG determines in good faith, after consultation with its financial advisor and based as to legal matters on the written advice of outside legal counsel, that such Takeover Proposal constitutes or could reasonably be expected action is required for the Board of Directors to result in a Superior comply with its fiduciary duties to stockholders imposed by law (the "RG Board Fiduciary Duties") and (ii) complying with Rule 14e-2 of the Exchange Act with regard to any Acquisition Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover if applicable. "Acquisition Proposal, " shall mean any proposed (A) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person merger, consolidation or group making such Takeover Proposal; providedsimilar transaction involving RG, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions sale, lease or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; providedother disposition directly or indirectly by merger, however, that prior to consolidation share exchange or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror otherwise of such determination assets of RG representing 10% or more of the Company Board as provided for in clause consolidated assets of RG, (iiC) aboveissue, together with sale, or other disposition of (subject including by way of merger, consolidation, share exchange or any similar transaction) securities (or options, rights or warrants to the existing terms of confidentiality obligations purchase, or securities convertible into, such securities) representing 10% or more of the Company voting power of RG or (D) transaction in which any person shall acquire beneficial ownership (as such term is defined in place as of Rule 13d-3 under the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its SubsidiariesExchange Act), or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected the right to lead to any Takeover Proposalacquire beneficial ownership, or any initial request for non-public information concerning "group" (as such term is defined under the Company Exchange Act) shall have been formed which beneficially owns or its Subsidiaries from any Person has the right to acquire beneficial ownership, of 10% or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations more of the Company as in place as outstanding RG Common Stock. The exercise of the date RG Board Fiduciary Duties, notwithstanding any other provision of this Agreement, provide the material terms and conditions shall not constitute a breach or violation of any such inquiry, proposal, offer or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable Law, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes provision of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e).
(g) Notwithstanding anything to the contrary parties acknowledge that nothing contained in this Section 6.02 5.1 shall either expand or elsewhere in this Agreement, narrow the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date obligations of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties RG under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writSection 5.12.
Appears in 1 contract
No Solicitation. (a) Until the earlier of the Effective Time The Company and the valid termination of this Agreement pursuant to Section 8.01, the Company its Affiliates shall not, and shall cause its Subsidiaries and its and their respective Representatives not to, directly or indirectly, through any officer, director, employee, investment banker, attorney, representative or agent of the Company or any of its Subsidiaries, (i) solicit, initiate, knowingly facilitate facilitate, or knowingly encourage the submission any inquiries or announcement of any inquiriesproposals that constitute, proposals or offers that constitute or would could reasonably be expected to lead to any Takeover to, an Acquisition Proposal, (ii) engage in negotiations or discussions concerning, or provide any non-public information concerning the Company or its Subsidiaries data to any Person or group in connection with entity relating to, any Takeover Acquisition Proposal, or engage in any discussions or negotiations with respect to any Takeover Proposal, (iii) approveagree to, support, adopt, endorse approve or recommend any Takeover Acquisition Proposal, (iv) take or otherwise facilitate any action effort or attempt to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming implement an “interested stockholder” under, Section 203 of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve or agree to do any of the foregoing. The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with any Person or groups that may be ongoing with respect to any Takeover Proposal or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company or any of its Subsidiaries or any of its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received a bona fide, written Takeover Proposal from any Person or group that did not result from a breach of this Section 6.02, and (ii) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or could reasonably be expected to result in a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, (A) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group making such Takeover Proposal; provided, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Acquisition Proposal; provided, however, that prior to or concurrently with the Company taking such actions as described nothing contained in clauses (A) and/or (B) above, the Company this Agreement shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning prevent the Company or its Subsidiaries Board of Directors from any Person (A) furnishing nonpublic information or group who has made or would reasonably be expected to make any Takeover Proposaldata to, or any initial request for entering into discussions or negotiations related to with, any Takeover Proposal, and, Person in connection with such notice, and subject an unsolicited bona fide Acquisition Proposal for all of the outstanding shares at a price more favorable to the existing terms of confidentiality obligations of Company's shareholders than the Company Merger, from a party with sufficient financial resources available to it to consummate such a transaction and that is reasonably likely to result in a Superior Proposal (as in place as of the date of this Agreementhereinafter defined), provide the material terms if and conditions of any such inquiry, proposal, offer or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes only to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or extent that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither the Company 's Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Board Directors determines in good faith (after consultation with its outside financial and legal counsel) advisors), that the failure to take such action would be inconsistent is necessary for such Board of Directors to comply with the exercise of its fiduciary duties under applicable Lawlaw, and prior to furnishing such non- public information to, or entering into discussions or negotiations with, such Person or entity, such Board of Directors receives from such Person or entity an executed confidentiality agreement containing customary terms and conditions; (xB) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing and request the return of all information provided to third parties pursuant to a confidentiality agreement. For purposes of this Agreement, "Superior Proposal" means any bona fide written Acquisition Proposal, not subject to any financing condition or which includes written commitments to finance such transaction from one or more financial institutions capable of providing such commitments, for all of the outstanding Shares and/or Debentures on terms that the Board of Directors of the Company Board determines in good faith (after consultation with its outside legal counsel receiving the advice of a financial advisor of nationally recognized reputation) are more favorable and financial advisors) that provide greater value to all the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of Company's shareholders than this Agreement and the Merger taken as a whole. For purposes of this Agreement, "Acquisition Proposal" means any offer or proposal for, or any indication of interest in, a merger or other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) business combination involving the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is or any material amendment to the terms Subsidiary of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance acquisition of any such communication shall notequity interest in, in and or a substantial portion of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e).
(g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreementassets of, the Company Board may, at or any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as Subsidiary of the date of this Agreement and does not relate to any Takeover Proposal or Company, other than the terms and conditions of transactions contemplated by this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writ.
Appears in 1 contract
Sources: Merger Agreement (Lee Sara Corp)
No Solicitation. (a) Until From and after the earlier of date hereof until the Effective Time and the valid termination of this Agreement pursuant to Section 8.01Agreement, neither the Company shall notnor any of its Subsidiaries, nor any of their respective officers, directors, representatives, agents or Affiliates (including, without limitation, any investment banker, attorney or accountant retained by the Company or any of its Subsidiaries) (collectively, "Representatives") will, and shall the Company will cause the employees and Representatives of the Company and its Subsidiaries and its and their respective Representatives not to, directly or indirectly, (i) solicit, initiate, knowingly facilitate initiate or knowingly encourage the submission or announcement of any inquiriesTakeover Proposal (as defined in Section 8.03), proposals (ii) enter into any agreement with respect to any Takeover Proposal or offers give any approval of the type referred to in Section 3.01(l) with respect to any Takeover Proposal or (iii) participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitute constitutes, or would may reasonably be expected to lead to to, any Takeover Proposal; provided, however, that if at any time prior to the receipt of the Stockholder Approval, the Board of Directors of the Company determines in good faith, based on the advice of outside counsel, that it is necessary to do so in order to comply with its fiduciary duties to the Company's stockholders under applicable law, the Company (and its Representatives) may, in response to an unsolicited Takeover Proposal of the sort referred to in clause (x) of the definition of "Superior Proposal" as contained in Section 8.03 that involves consideration to the Company's stockholders with a value that the Company's Board of Directors reasonably believes, after receiving advice from the Company's financial advisor, is superior to the consideration provided for in the Merger, and subject to compliance with Section 4.02(c), (iix) provide any non-public furnish information concerning with respect to the Company or its Subsidiaries pursuant to a customary confidentiality agreement (having terms substantially similar to those contained in the Confidentiality Agreement (as defined in Section 5.01)) to any Person or group in connection with any Takeover Proposal, or engage in any discussions or negotiations with respect to any Takeover Proposal, making such proposal and (iiiy) approve, support, adopt, endorse or recommend any Takeover Proposal, (iv) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any negotiations regarding such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve or agree to do any of the foregoingproposal. The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any existing solicitation, initiation, encouragement, activity, discussion or negotiation with any Person parties conducted heretofore by the Company or groups that may be ongoing any Representatives with respect to any Takeover Proposal or potential Takeover Proposal. The Company shall promptly after existing on the date hereof request each Person (if any) hereof. Without limiting the foregoing, it is understood that has heretofore executed a confidentiality agreement (other than any violation of the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to restrictions set forth in the preceding sentence by any Representative of the Company or destroy all non-public documents and materials relating any of its Subsidiaries, whether or not such Person is purporting to the Takeover Proposal or to act on behalf of the Company or any of its Subsidiaries or any of its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisionsotherwise, shall be deemed to limit be a breach of this Section 4.02(a) by the ability of Acquiror or any of its Affiliates to take any action contemplated this AgreementCompany.
(b) Notwithstanding anything to Neither the contrary contained in this Agreement, if at any time prior to the Acceptance Time, (i) Board of Directors of the Company has received a bona fide, written Takeover Proposal from nor any Person or group that did not result from a breach of this Section 6.02, and (ii) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or could reasonably be expected to result in a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, (A) furnish information committee thereof (including non-public informationwithout limitation the Independent Committee) with respect to the Company and its Subsidiaries to the Person or group making such Takeover Proposal; provided, that shall (x) the Company shall substantially concurrently provide withdraw or modify, or propose to Acquiror any non-public information (withdraw or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiariesmodify, in a manner reasonably consistent with adverse to Parent, the Company’s past practices in dealing with approval (including, without limitation, either the disclosure Board of Directors' or the Independent Committee's resolution providing for such information approval) or recommendation by such Board of Directors or such committee of this Agreement or the Merger or (y) approve or recommend, or propose to approve or recommend, any Takeover Proposal, except in the context case of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (iix) aboveor (y), together in connection with a Superior Proposal (subject to as defined in Section 8.03) and then only at or after the existing terms of confidentiality obligations of the Company as in place as of the date termination of this Agreement) the identity of the Person or group making such Takeover ProposalAgreement pursuant to Section 7.01(c).
(c) The In addition to the obligations of the Company set forth in paragraphs (a) and (b) of this Section 4.02, the Company promptly shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror advise Parent orally and in writing in the event that the Company, its Subsidiaries, of any request for information or its of any Takeover Proposal or their respective Representatives, receives any inquiry, proposal inquiry with respect to or offer that constitutes or which could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations identity of the Company as in place as of Person making any such request, Takeover Proposal or inquiry and all the date of this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer or request and the nature of such request, and thereafter the thereof. The Company shall will keep Acquiror reasonably Parent fully informed on a prompt and timely basis of the status and material details of discussions with respect thereto, (including any material changes to the terms amendments or proposed amendments) of any such request, Takeover Proposal or inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable Law, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law.
(f) Nothing contained in this Agreement Section 4.02 shall prohibit the Company or the Company Board from taking and disclosing to the Company’s its stockholders a position with respect to a tender offer contemplated by a third party pursuant to Rules Rule 14d-9 and 14e-2(a) or Rule 14e-2 promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this AgreementAct; provided, however, that no Adverse Recommendation Change may be made unless neither the Company shall have first complied nor its Board of Directors nor any committee thereof shall, except as permitted by Section 4.02(b), withdraw or modify, or propose to withdraw or modify, its approval or recommendation with its obligations in Section 6.02(e).
(g) Notwithstanding anything respect to the contrary contained in this Section 6.02 or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Merger (including, without limitation, either the Board as of the date of this Agreement and does not relate to any Takeover Proposal Directors' or the terms and conditions of this Agreement, which event, development Independent Committee's resolution providing for such approval) or change in circumstanceapprove or recommend, or any material consequences thereofpropose to approve or recommend, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writProposal.
Appears in 1 contract
No Solicitation. (a) Until During the period from the date of this Agreement to the earlier of the Effective Time and or the valid date of termination of this Agreement pursuant to Section 8.01Agreement, none of the Company Partnership, One Winthrop, or ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇, nor any Affiliates of any of the foregoing, shall notnegotiate for, and shall cause its Subsidiaries and its and their respective Representatives not to, directly or indirectly, (i) solicit, initiate, knowingly facilitate encourage or knowingly encourage enter into any agreement, arrangement or proposal with respect to, nor market or advertise, the submission sale or announcement transfer of any inquiriespartnership interest in the Partnership or all or any portion of the assets or properties of the Partnership (including the assets and properties of the Local Limited Partnerships), proposals or offers that constitute any merger or would reasonably be expected other business combination of the Partnership (or any of the Local Limited Partnerships), or any other similar transaction, to lead or with any entity other than the RESI II Fund (and/or its Affiliates) (any of the foregoing, an “Acquisition Proposal”), or agree to or recommend any Takeover Acquisition Proposal. Notwithstanding the foregoing or anything else contained in this Agreement, so long as the Partnership, One Winthrop, and ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇ have not breached the obligation set forth in this Section 5.02, nothing contained in this Agreement shall prevent the Partnership or One Winthrop from (i) participation in ordinary course investor relations discussions not relating to an Acquisition Proposal or (ii) provide any non-public information concerning the Company or its Subsidiaries to any Person or group in connection with any Takeover Proposal, or engage in any entering into discussions or negotiations with respect any person or entity in connection with an unsolicited bonafide written Acquisition Proposal if and only to the extent that:
(i) One Winthrop determines in good faith, that such Acquisition Proposal is reasonably capable of being completed on the terms proposed and would, if consummated, result in a transaction more favorable than the transactions contemplated by this Agreement (any Takeover such more favorable Acquisition Proposal, a “Superior Transaction”) and One Winthrop determines in good faith and after consultation with outside legal counsel that such action is necessary in order to comply with its fiduciary duties to partners under applicable law,
(ii) prior to entering into discussions or negotiations with such person or entity, the Partnership or One Winthrop receives from such person or entity an executed confidentiality agreement on terms customary for such a situation, and
(iii) approveprior to recommending a Superior Transaction, supportOne Winthrop provides the RESI II Fund at least four (4) business days prior notice of its proposal to do so, adoptduring which time the RESI II Fund may make, endorse and in such event the Partnership and One Winthrop shall consider, a counterproposal to such Superior Transaction, and One Winthrop shall itself, and on behalf of the Partnership, cause the appropriate financial and legal advisors to negotiate in good faith with the RESI II Fund with respect to the terms and conditions of such counterproposal. In the event that such counterproposal by the RESI II Fund, if consummated, would result in a transaction more favorable than a Superior Transaction, then One Winthrop, as the general partner and on behalf of the Partnership, shall automatically be obligated promptly to accept and recommended such counterproposal from the RESI II Fund, and the parties hereto shall continue their efforts to consummate such transaction on the terms and conditions set forth herein.
(b) One Winthrop shall notify the RESI II Fund promptly after receipt by the Partnership (or recommend any Takeover Proposal, (ivits advisors) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” Acquisition Proposal (or other similar anti-takeover statute or regulation (including any transaction underinformation related thereto), or a third party becoming an “interested stockholder” underrequest for access to the properties, Section 203 books or records of the Corporation Law) inapplicable Partnership by any person or entity that is considering making, or has made, an Acquisition Proposal. Such notice shall be made orally and in writing and shall indicate in reasonable detail the identity of the offeror and the terms and conditions of such proposal, inquiry or contact. One Winthrop shall continue to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by keep the RESI II Fund informed, on a Takeover Proposalcurrent basis, (v) otherwise cooperate with or knowingly assist or participate in of the status of any such inquiries, proposals, offers, discussions or negotiations, negotiations and the terms being discussed or negotiated.
(vic) resolve or agree to do any of the foregoing. The Company One Winthrop shall, and shall cause its Subsidiaries representatives and its and their respective Representatives agents to, immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with any Person or groups that may be ongoing with respect to any Takeover Proposal or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company or any of its Subsidiaries or any of its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisionsexisting activities, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received a bona fide, written Takeover Proposal from any Person or group that did not result from a breach of this Section 6.02, and (ii) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or could reasonably be expected to result in a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, (A) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group making such Takeover Proposal; provided, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with any parties conducted heretofore of the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, that prior to or concurrently with the Company taking such actions as nature described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination this Section 5.02(a). It is agreed that any violation of the Company Board as provided for restrictions set forth in clause (ii) above, together with (subject to the existing terms of confidentiality obligations this Section 5.02 by any representative or Affiliates of the Company as in place as Partnership, One Winthrop, or ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇, whether or not such person is purporting to act on behalf of the date of this Agreement) the identity of the Person Partnership or group making such Takeover Proposal.
(c) The Company shall promptly (andotherwise, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable Law, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror breach of such material revision in compliance with this Section 6.02(c) 5.02 by One Winthrop and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable LawPartnership.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e).
(g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writ
Appears in 1 contract
Sources: Merger Agreement (Winthrop Residential Associates Ii)
No Solicitation. (a) Until the earlier of the Effective Time and the valid termination of Except as permitted by this Agreement pursuant to Section 8.015.3, the Company shall notshall, and shall cause each of its Subsidiaries and its and their respective officers and its and their officers’ direct reports and its and their directors to, and shall instruct and use its reasonable best efforts to cause its other Representatives not toto (i) immediately cease any solicitation, discussions or negotiations with any Persons with respect to a Takeover Proposal that existed on or prior to the date of this Agreement, (ii) during the Interim Period, not, directly or indirectly, indirectly (iA) solicit, initiate, knowingly encourage or knowingly facilitate or knowingly encourage the submission or announcement of any inquiriesinquiries regarding, proposals or offers the making of any proposal or offer that constitute constitutes, or would reasonably be expected to lead to any to, a Takeover Proposal, (iiB) provide other than informing third parties of the existence of the provisions contained in this Section 5.3, engage in, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any other Person any non-public information concerning the Company or its Subsidiaries to any Person or group in connection with any proposal or offer that constitutes, or would reasonably be expected to lead to, a Takeover Proposal, (C) approve, adopt, endorse, recommend or engage enter into any letter of intent, memorandum of understanding, agreement in any discussions principle, merger agreement, acquisition agreement or negotiations other similar Contract providing for a Takeover Proposal or with respect to any proposal or offer that would reasonably be expected to lead to, a Takeover ProposalProposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)) (any such letter of intent, memorandum of understanding, agreement or Contract, an “Alternative Acquisition Agreement”) or (iii) approve, support, adopt, endorse or recommend any Takeover Proposal, (ivD) take any action to make exempt any Person (other than Parent and its Subsidiaries) from the provisions of any “fair price,” “moratorium,” “control share acquisition,” restrictions on “business combinationcombinations” or other any similar provision contained in applicable Takeover Laws or the Company Organizational Documents; (iii) subject to the directors’ fiduciary duties under applicable Law, waive or release any preexisting explicit or implicit standstill provisions or similar agreements and “anti-takeover statute clubbing” or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate similar requirements contained in any such inquiries, proposals, offers, discussions or negotiationsother Contract, or (viiv) resolve or agree to do any of the foregoing. The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with any Person or groups that may be ongoing with respect to any Takeover Proposal or potential Takeover Proposal. The Company shall promptly after the date hereof (and in any event within five (5) Business Days hereof) request each Person (if any) that has heretofore prior to the date of this Agreement executed a confidentiality agreement (other than the Confidentiality Agreement) relating to in connection with its consideration of a proposed Takeover Proposal or potential Takeover Proposal to promptly return to within the Company or destroy all non-public documents and materials relating to fifteen (15) month period immediately preceding the Takeover Proposal or to the Company or any date of its Subsidiaries or any of its and their respective businessesthis Agreement to, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of the Company , return or its Subsidiaries shall enter into any confidentiality agreement subsequent destroy all confidential information furnished prior to the date hereof which prohibits execution of this Agreement to or for the benefit of such Person by or on behalf of the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this AgreementSubsidiaries.
(b) Notwithstanding anything contained in Section 5.3(a) or any other provision of this Agreement to the contrary contained in this Agreementcontrary, if if, at any time prior to the Offer Acceptance Time, the Company or any of its Representatives receives a bona fide written Takeover Proposal, which Takeover Proposal did not result from any breach of this Section 5.3, (i) the Company has received a bona fide, written Takeover Proposal from any and its Representatives may contact such Person or group of Persons making the Takeover Proposal solely to clarify the terms and conditions thereof or to request that did not result from a breach of this Section 6.02, any Takeover Proposal made orally be made in writing and (ii) if the Company Board determines in good faith, after consultation with its financial advisor advisors and outside legal counsel, that such Takeover Proposal constitutes or could reasonably be expected to result in a Superior Proposal, and that the failure 49 to take such action described in clauses (x) and (y) below would be inconsistent with the directors’ fiduciary duties under applicable Law, then the Company, the Company may, upon receipt Board and any of their respective Representatives may (x) enter into an Acceptable Confidentiality Agreement executed by such with the Person or group of Persons making such the Takeover Proposal, (A) Proposal and furnish pursuant to an Acceptable Confidentiality Agreement information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group making such Takeover Proposal; provided, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making Persons who has made such Takeover Proposal regarding such Takeover Proposal; provided, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or and its or their respective Representatives or potential sources of financing and their Representatives, receives any inquiry, proposal or offer ; provided that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, and in any event, event within twenty-four (24) hours) provide Acquiror to Parent any such non-public information concerning the Company or any of its Subsidiaries that is provided to any Person given such access to the extent it was not previously provided to Parent or its Representatives and (y) engage in or otherwise participate in discussions or negotiations with unredacted copies the Person or group of all Persons and its or their Representatives and potential sources of financing and their Representatives regarding such Takeover Proposal; provided, in the case of clauses (x) and (y), that at or prior to the first time that the Company furnishes any such information to or participates in any discussions or negotiations with any Person on or after the date of this Agreement, the Company shall provide written notice to Parent of such determination in good faith of the Company Board as provided for above.
(c) During the Interim Period, the Company shall (i) promptly (and in any event within thirty-six (36) hours after knowledge of receipt by an officer or director of the Company) notify Parent if any inquiries, requests, proposals or offersoffers with respect to, including proposed agreementsor that would reasonably be expected to lead to, and oral summaries a Takeover Proposal are received by the Company or any of any oral its Representatives, (ii) provide to Parent the identity of the Person or group of Persons making such inquiries, requests, proposals or offersoffers and a copy of any Takeover Proposal (including any proposed term sheet, received letter of intent, acquisition agreement or other agreement or other supporting materials with respect thereto, and any amendments thereto)and a summary of any material unwritten terms and conditions of any Takeover Proposal (and any amendments thereto) and (iii) keep Parent reasonably informed of any material developments, discussions or negotiations regarding any Takeover Proposal (and any amendments thereto) on a reasonably prompt basis (and in any event within thirty-six (36) hours after knowledge by an officer or director of the CompanyCompany of such material development, its Subsidiaries, discussion or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposalnegotiation).
(d) Neither Except as otherwise provided in this Agreement, neither the Company Board nor any committee thereof shall (i) (A) withdraw or rescind withhold (or modify modify, amend or qualify in a manner adverse to Acquiror or Merger SubParent), or publicly propose to withdraw or rescind withhold (or modify modify, amend or qualify in a manner adverse to Acquiror or Merger SubParent), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b)Recommendation, (iiB) recommend the approval or adoption of, declare advisable, or approve or recommend the adoption ofadopt, or publicly propose to approverecommend, declare the advisability of advisable, approve or recommend the adoption ofadopt, any Takeover Proposal, (iiiC) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or 14D-9, (viiD) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue recommend, in a press release publicly announcing Solicitation/Recommendation Statement on Schedule 14D-9, against any Takeover Proposal subject to Regulation 14D under the Exchange Act within ten (10) Business Days after commencement of such commencement Takeover Proposal (Aor, if earlier, by the close of business on the Business Day immediately preceding the scheduled date of the Offer Acceptance Time) or (E) after public announcement of a Takeover Proposal (other than a Takeover Proposal subject to Regulation 14D under the Exchange Act), fail to publicly affirm the Company Board 50 Recommendation within five (5) Business Days after a written request by Parent to do so (or, if earlier, by the close of business on the Business Day immediately preceding the scheduled date of the Offer Acceptance Time) (it being understood that the Company recommends rejection will have no obligation to make such reaffirmation on more than one occasion with respect to any such Takeover Proposal (it being understood that the Company will also, if so requested by Parent, make one reaffirmation (but no more than one reaffirmation) on each amendment of each such tender or exchange offer and (BTakeover Proposal)) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in this clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”) or (ii) approve, recommend, or enter into any Alternative Acquisition Agreement (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)).
(e) Notwithstanding anything in this Agreement to the contrary in this Agreementcontrary, at any time prior to the Offer Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response and subject to a Superior Proposal if and only if: (v) the Company has complied compliance with the other provisions of this Section 6.025.3, (w) in response to a bona fide written Takeover Proposal received by the Company Board determines after the date of this Agreement that did not result from a breach of this Section 5.3, that has not been withdrawn and that the Company Board has determined in good faith (faith, after consultation with its financial advisors and outside legal counsel) that , constitutes a Superior Proposal, the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable Law, Company Board may (x) make an Adverse Recommendation Change or (y) provided that the Company Board determines and its Subsidiaries are not in good faith (after consultation breach of this Section 5.3 in any material respect, terminate this Agreement to enter into an Alternative Acquisition Agreement with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a respect to such Superior Proposal and that it intends in accordance with Section 7.4(a), or authorize, resolve, agree or propose publicly to accept or recommend take any such Superior Proposalaction, if all of the following conditions are met:
(yi) the Company shall have (A) provided prior written notice to Acquiror, at least Parent four (4) Business Days days’ prior to effecting any Adverse Recommendation Changewritten notice, which shall (1) state that it has received a Superior Proposal, (2) attach the material terms and conditions of its intent to take such action, specifying the reasons therefor Superior Proposal (including the consideration offered therein and including the identity of the Person or group making the Superior Proposal) or a copy of the proposed acquisition agreement Alternative Acquisition Agreement and any other material documents related to such the Superior Proposal (a “Notice of Intended Recommendation Change”), it being understood and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing agreed that any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the financial terms (including the form, amount and timing of payment of consideration) or any Superior Proposal (provided, that any revision to the amount, form other material term or mix of consideration the Company’s stockholders would receive as a result condition of such Superior Proposal shall be deemed require a new notice and a new two (2) day period) and (3) state that, subject to be a material amendment)clause (ii) below, the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have has determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant in accordance with Section 7.4(a) in order to enter into the Alternative Acquisition Agreement, as applicable, and (B) prior to making such an Adverse Recommendation Change or determining to terminate this Agreement in accordance with Section 8.01(g7.4(a), as applicable, made itself or its Representatives available during such notice period to discuss potential amendments to this Agreement proposed by Parent that could result in the Alternative Acquisition Agreement ceasing to constitute a Superior Proposal; and
(ii) the Company Board shall have determined in good faith after consultation with its financial advisors and outside legal counsel, that, in light of such Superior Proposal and taking into account any revised terms timely proposed by Parent, such Superior Proposal continues to constitute a Superior Proposal and that the failure to make such Adverse Recommendation Change or to so terminate this Agreement in accordance with Section 7.4(a), as applicable, would reasonably be expected to be inconsistent with the exercise of its directors’ fiduciary duties under applicable Law.
(f) Notwithstanding anything in this Agreement to the contrary, at any time prior to the Offer Acceptance Time, upon the occurrence of any Intervening Event, the Company Board may make an Adverse Recommendation Change, or authorize, resolve, agree or propose publicly to take any such action, only if all of the following conditions are met:
(i) the Company shall have (A) provided to Parent four (4) days’ prior written notice, which shall (1) set forth in reasonable detail information describing the Intervening Event and the basis on which the Company Board intends to effect an Adverse Recommendation Change (it being understood and agreed that any material change to the facts or circumstances of such Intervening Event shall require a new notice and a new two (2) day period) and (2) state that, subject to clause (ii) below, the Company Board has determined to effect an Adverse Recommendation Change and (B) prior to making such an Adverse Recommendation Change, made itself or its Representatives available during such notice period to discuss potential amendments to this Agreement proposed by Parent that could result in the Intervening Event no longer reasonably being expected to be inconsistent with the directors’ fiduciary duties under applicable Law; and
(ii) the Company Board shall have determined, in good faith, after consultation with its outside legal counsel, that in light of such Intervening Event and taking into account any revised terms proposed by Parent, the failure to make an Adverse Recommendation Change would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law.
(g) Nothing contained in this Agreement shall prohibit the Company or the Company Board Board, directly or indirectly through their respective Representatives, from (i) taking and disclosing to the Company’s stockholders a of the Company any position with respect to a tender offer contemplated by a third party pursuant to Rules 14d-9 and Rule 14d-9, Rule 14e-2(a) or Item 1012(a) of Regulation M-A promulgated under the Exchange Act or from issuing a Act, (ii) making any “stop, look and listen” communication, as defined in communication to the Company’s stockholders pursuant to Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, or a factually accurate public statement by the Company that describes a Takeover Proposal and the issuance operation of this Agreement with respect thereto (it being agreed that any such communication or statement shall not, in and of itself, constitute not be deemed to be an Adverse Recommendation Change for purposes or give rise to a Parent termination right pursuant to Section 7.3(b)) or (iii) making any disclosure to the stockholders of this Agreementthe Company that is required by applicable Law; provided, however, provided that no the Company Board shall not effect an Adverse Recommendation Change may be made unless the Company shall have first complied except in accordance with its obligations in Section 6.02(e5.3(e) or (f).
(gh) Notwithstanding anything to The Company agrees that in the contrary contained in event (i) any of its officers or its officers’ direct reports or its directors or (ii) any investment banker or financial advisor retained by, and acting on behalf of the Company, takes any action that, if taken by the Company, would constitute a breach of this Section 6.02 or elsewhere in this Agreement5.3, the Company Board may, at any time prior shall be deemed to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date be in breach of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writSection 5.3.
Appears in 1 contract
Sources: Merger Agreement (CDK Global, Inc.)
No Solicitation. (aSubject to Section 5(a) Until hereof, Shareholder shall immediately cease, and shall cause any Affiliates of Shareholder to immediately cease, any discussions or negotiations with any third-party that may be ongoing with respect to a Competing Proposal, or any proposal that could reasonably be expected to lead to a Competing Proposal, and shall request to have returned promptly any confidential information that has been provided since January 2015 in any such discussions or negotiations. From the date hereof until the earlier of the Effective Time and or the valid date of termination of this Agreement pursuant to Section 8.01in accordance with its terms, the Company Shareholder shall not, and shall cause its Subsidiaries and its and their respective Representatives the Affiliates of Shareholder not to, directly or indirectly, (i) solicit, initiate, knowingly facilitate initiate or knowingly encourage the submission (including by way of furnishing information which has not been previously publicly disseminated) any Competing Proposal or announcement of any inquiries, proposals or offers that constitute or proposal which would reasonably be expected to lead to any Takeover a Competing Proposal, (ii) provide any non-public information concerning the Company or its Subsidiaries to any Person or group in connection with any Takeover Proposal, or engage in any discussions or negotiations with respect to regarding any Takeover Proposal, Competing Proposal or (iii) approve, supportendorse, adopt, endorse recommend or recommend any Takeover Proposal, (iv) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve or agree to do any of the foregoing. The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with any Person or groups that may be ongoing with respect to any Takeover Proposal or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company or any of its Subsidiaries or any of its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received a bona fide, written Takeover Proposal from any Person or group that did not result from a breach of this Section 6.02, and (ii) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or could reasonably be expected to result in a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, (A) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group making such Takeover Proposal; provided, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption ofinto, or publicly propose to approve, declare the advisability of or endorse, recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar definitive agreement with respect to any Competing Proposal; provided, however, that, for the avoidance of doubt, the foregoing restrictions shall not apply to Shareholder in her capacity as an officer or director of the Company to the extent such actions are permitted by the terms of the Merger Agreement. Shareholder shall promptly, and in any event no later than 24 hours, after it receives (x) any Competing Proposal or indication by any Person that it is considering making a Competing Proposal, (ivy) publicly propose any request for non-public information relating to the Company or announce an intention its Subsidiaries other than requests for information in the ordinary course of business consistent with past practice and unrelated to take a Competing Proposal or (z) any inquiry or request for discussions or negotiations regarding any Competing Proposal, notify the Company orally and in writing of any of the foregoing actionsoccurrences, (v) following the date any Takeover identity of the Person making such request, inquiry or Competing Proposal and provide the Company with a copy of such request, inquiry or Competing Proposal (other than any tender or exchange offer relating to securities where no such copy is available, a reasonably detailed description of the Company (other than the Offer)) such request, inquiry or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification theretoCompeting Proposal), (vi) withhold or fail to include including any modifications thereto. For the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement avoidance of any tender or exchange offer relating to securities of the Company (other than the Offer)doubt, fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding notwithstanding anything to the contrary in this AgreementSection 1(c), at this Section 1(c) shall not prohibit any time prior discussions, negotiations, or Transfers related to the Acceptance Timeany permitted Transfers pursuant to Section 1(b), the Company Board may effect an Adverse Recommendation Change in response to and any Transfer permitted under Section 1(b) will not constitute a Superior Proposal if and only if: (v) the Company has complied with the other provisions breach of this Section 6.02, (w) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable Law, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e1(c).
(g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writ
Appears in 1 contract
Sources: Voting and Support Agreement (Interval Leisure Group, Inc.)
No Solicitation. Prior to the Expiration Date, the Stockholder (a) Until the earlier in its capacity as a stockholder of the Effective Time and the valid termination of this Agreement pursuant to Section 8.01, the Company Company) shall not, and shall cause each of its Subsidiaries and its and their respective Representatives controlled Affiliates not to, directly or indirectly, (i) solicit, initiate, seek, knowingly encourage or knowingly facilitate or knowingly encourage any inquiries regarding, the submission or announcement making of any inquiriesproposal or offer with respect to, proposals or offers the announcement, making or completion of, any Company Acquisition Proposal, or inquiry, proposal or offer that constitute or would could reasonably be expected to lead to any Takeover to, a Company Acquisition Proposal, (ii) provide enter into, engage in, continue or otherwise participate in any non-public information concerning the Company discussions or its Subsidiaries negotiations regarding or that could reasonably be expected to lead to, or furnish to any Person or group other person any information in connection with, with respect to, or for the purpose of encouraging or facilitating, a Company Acquisition Proposal (other than, solely in response to an unsolicited inquiry, to refer the inquiring person to this Section 3.1 and/or Section 7.3 of the Merger Agreement and to limit its conversation or other communication exclusively to such referral), (iii) approve, recommend, publicly declare advisable, or enter into, or propose to approve, recommend, publicly declare advisable or enter into, any Takeover Company Alternative Acquisition Agreement or similar document, agreement, commitment, or agreement in principle (whether written or oral, binding or nonbinding) with respect to a Company Acquisition Proposal, or engage (iv) agree to or publicly propose to do any of the foregoing; provided that nothing herein shall prohibit the Stockholder or any of its controlled Affiliates from participating in any discussions or negotiations with respect to any Takeover Proposal, (iii) approve, support, adopt, endorse a possible stockholders’ consent or recommend any Takeover Proposal, (iv) take any action to make voting agreement or the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve or agree to do any of the foregoing. The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with any Person or groups that may be ongoing with respect to any Takeover Proposal or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company or any of its Subsidiaries or any of its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None treatment of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to Preferred Shares in connection with a Company Acquisition Proposal in the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreementevent that, and only so long as, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained actions set forth in this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received a bona fide, written Takeover Proposal from any Person or group that did not result from a breach of this Section 6.02, and (ii) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or could reasonably be expected to result in a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, (A) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group making such Takeover Proposal; provided, that clause (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and clause (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of Section 7.3(b) of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable Law, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Company Acquisition Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e).
(g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writ
Appears in 1 contract
Sources: Voting and Support Agreement (Landmark Apartment Trust, Inc.)
No Solicitation. (a) Until GFHF agrees that, except as expressly permitted by Section 6.7(b), from the earlier date of this Agreement until the Effective Time and or, if earlier, the valid termination of this Agreement pursuant to in accordance with Section 8.018.1, the Company shall it will not, and shall will cause its Subsidiaries and its Subsidiaries’ officers, directors, and their respective Representatives employees (the “GFHF Individuals”) not to, directly or indirectlyand will use its commercially reasonable efforts to cause GFHF’s and its Subsidiaries’ agents, advisors, accountants, legal counsel, and financial advisors (ithe “GFHF Representatives”) solicitnot to, initiate, solicit, encourage or knowingly facilitate inquiries or knowingly encourage the submission or announcement of any inquiries, proposals or offers that constitute or would reasonably be expected to lead to any Takeover Proposal, (ii) provide any non-public information concerning the Company or its Subsidiaries to any Person or group in connection with any Takeover Proposalrespect to, or engage in any discussions or negotiations with respect to concerning, or provide any Takeover confidential or nonpublic information or data concerning its and its Subsidiaries’ business, properties or assets (“GFHF Confidential Information”) to, or have any discussions with, any Person relating to, any Acquisition Proposal; provided, (iii) approvehowever, support, adopt, endorse or recommend that this Section 6.7 shall not prohibit any Takeover Proposal, (iv) take GFHF Representative from informing any action to make Person of the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation restrictions contained in this Section 6.7 (including by providing a copy hereof to such Person) or from contacting any transaction under, or a third party becoming Person who has made an “interested stockholder” under, Section 203 Acquisition Proposal for the purpose of requesting clarification of the Corporation Law) inapplicable terms and conditions thereof so as to determine whether the Acquisition Proposal constitutes or is reasonably expected to result in a Superior Proposal (provided, as to foregoing, that GFHF shall not provide any Person other than Acquiror and its Affiliates confidential or to any transactions constituting non-public information on GFHF or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve or agree to do any of the foregoing. The Company shall, and shall cause its Subsidiaries and or CenterState or its and their respective Representatives to, Subsidiaries). GFHF will immediately cease and cause to be terminated any solicitationactivities, encouragement, discussion discussions or negotiation negotiations conducted before the date of this Agreement with any Person or groups that may be ongoing Persons other than CenterState with respect to any Takeover Acquisition Proposal and will use its commercially reasonable efforts, subject to applicable law, to enforce any confidentiality or potential Takeover similar agreement relating to such an Acquisition Proposal. The Company shall promptly after the date hereof request each Person (if any) It is understood that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company or any of its Subsidiaries or any of its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal breach of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted 6.7 by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, GFHF Representative shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreementconstitute a breach by GFHF.
(b) Notwithstanding anything to the contrary contained in this AgreementSection 6.7(a), if at any time from the date of this Agreement and prior to obtaining the Acceptance TimeGFHF Shareholder Approval, in the event GFHF receives an unsolicited Acquisition Proposal and the Board of Directors of GFHF determines in good faith that there is a reasonable likelihood that such Acquisition Proposal constitutes, or is reasonably likely to result in, a Superior Proposal, GFHF may, and may permit its Subsidiaries and the GFHF Individuals and the GFHF Representatives to, (i) negotiate the Company has received terms of, and enter into, a bona fideconfidentiality agreement with terms and conditions no less favorable to GFHF than the Confidentiality Agreement, written Takeover Proposal from any (ii) furnish or cause to be furnished GFHF Confidential Information to the Person or group that did not result from a breach of this Section 6.02Persons making such Acquisition Proposal pursuant to such confidentiality agreement, and (iiiii) negotiate and participate in such negotiations or discussions with the Company Person or Persons making such Acquisition Proposal concerning such Acquisition Proposal, if the Board of Directors of GFHF determines in good faith, after faith (following consultation with its financial advisor and outside legal counsel, ) that failure to take such Takeover Proposal constitutes actions would or could would be reasonably be expected likely to result in a Superior Proposal, then the Company may, upon receipt violation of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, (A) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group making such Takeover Proposal; provided, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposalfiduciary duties under applicable law.
(c) The Company Board of Directors of GFHF shall promptly not (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer or request and the nature of such request, and thereafter the Company nor shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither the Company Board nor any committee thereof shall (ithereof) withdraw or rescind (or modify or qualify modify, in a manner adverse to Acquiror CenterState, the GFHF Board Recommendation or Merger Sub), make or publicly propose cause to be made any third party or public communication proposing or announcing an intention to withdraw or rescind (or modify or qualify in a any manner adverse to Acquiror or Merger Sub), CenterState the Company GFHF Board Recommendation or (any such action, a “Change in Recommendation”). Notwithstanding the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (orforegoing, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company GFHF Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Board determines concludes in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable Law, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover an Acquisition Proposal constitutes a Superior Proposal and (after consultation with its legal advisors) that it intends failure to accept or recommend such Superior Proposaldo so could be inconsistent with its fiduciary obligations to the stockholders of GFHF under applicable Laws, (y) the Company shall have provided prior written notice to Acquiror, GFHF Board may at least four (4) Business Days any time prior to effecting any Adverse the GFHF Shareholder Approval (i) effect a Change of Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal or (a “Notice of Intended Recommendation Change”), and (zii) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of terminate this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes to enter into a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) definitive agreement with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, furtherhowever, that the Company Board of Directors of GFHF may not make a Change in Recommendation, or terminate this Agreement, with respect to an Acquisition Proposal unless (i) GFHF shall not have considered in good faith any amendments to breached this Agreement Section 6.7 and (ii) (A) the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day Board of the applicable period(s) described above and shall have determined Directors of GFHF determines in good faith (after consultation with its outside legal counsel and financial advisorscounsel) that such Superior Proposal has been made and has not been withdrawn and continues to be a Superior Proposal after taking into account all adjustments to the failure terms of this Agreement that may be offered by CenterState under this Section 6.7(c); (B) GFHF has given CenterState at least three (3) days’ prior written notice of its intention to take such action set forth above (which notice shall specify the material terms and conditions of any such Superior Proposal (including the identity of the Company Board Person making such Superior Proposal) and has contemporaneously provided an unredacted copy of the relevant proposed transaction agreements with the Person making such Superior Proposal; and (C) before effecting such Change in Recommendation, GFHF has negotiated, and has caused its representatives to effect an Adverse Recommendation Change or negotiate, in good faith with CenterState during such notice period to the Company extent CenterState wishes to terminate negotiate, to enable CenterState to revise the terms of this Agreement pursuant such that it would cause such Superior Proposal to no longer constitute a Superior Proposal. In the event of any material change to the terms of such Superior Proposal, GFHF shall, in each case, be required to deliver to CenterState a new written notice, the notice period shall recommence and GFHF shall be required to comply with its obligations under this Section 8.01(g6.7 with respect to such new written notice.
(d) would be inconsistent GFHF will advise CenterState in writing within twenty-four (24) hours following receipt of any Acquisition Proposal and the substance thereof (including the identity of the Person making such Acquisition Proposal), and will keep CenterState apprised of any related developments, discussions and negotiations (including the terms and conditions of the Acquisition Proposal) on a current basis.
(e) Notwithstanding anything in this Agreement to the contrary, nothing contained in this Section or elsewhere in this Agreement shall prohibit GFHF, its Subsidiaries, or their respective Boards of Directors or any committees thereof, from complying with the exercise of its fiduciary duties their respective disclosure obligations under applicable Law.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e).
(g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere As used in this Agreement, the Company Board may, at any time prior to following terms have the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writmeanings set forth below:
Appears in 1 contract
No Solicitation. (a) Until Subject to the earlier of the Effective Time and the valid termination provisions of this Agreement pursuant to Section 8.015.8, the Company shall Bank of York will not, and shall will use commercially reasonable efforts to cause its Subsidiaries officers, directors, employees, Affiliates, agents and its and their respective Representatives other representatives (collectively, “Representatives”) not to, directly or indirectly, indirectly (i) solicitinitiate or solicit or Knowingly encourage or facilitate any inquiries or proposals with respect to, initiateor the making of, knowingly facilitate any Acquisition Proposal or knowingly encourage the submission or announcement making of any inquiries, proposals or offers proposal that constitute or would could reasonably be expected to lead to any Takeover Acquisition Proposal, (ii) engage, enter into, continue or otherwise participate in negotiations or discussions with, or provide any non-public information concerning the Company or its Subsidiaries to data to, any Person or group in connection with any Takeover Proposal, or engage in any discussions or negotiations with respect relating to any Takeover an Acquisition Proposal, (iii) approve, supportendorse or recommend, adoptor propose publicly to approve, endorse or recommend recommend, any Takeover Proposal, Acquisition Proposal or (iv) take enter into any action to make the provisions letter of any “fair price,” “moratorium,” “control share acquisition,” “business combination” intent, agreement in principle, merger agreement, acquisition agreement or other similar anti-takeover statute agreement relating to any Acquisition Proposal or regulation requiring Bank of York to abandon, terminate or breach its obligations hereunder or fail to consummate the Merger (including a “Bank of York Acquisition Agreement”) (other than a confidentiality agreement contemplated by Section 5.8(b)) (provided, however, that the foregoing shall not prohibit Bank of York or its Representatives from informing any transaction underPerson of the restrictions of this Section 5.8 or from contacting any Person who has made an Acquisition Proposal or inquiry or proposal relating thereto solely for the purpose of seeking clarification of the terms and conditions thereof so as to determine whether the Acquisition Proposal is, or could reasonably be expected to lead to, a third party becoming an “interested stockholder” under, Section 203 of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Superior Proposal, (v) otherwise cooperate with or knowingly assist or participate in and any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve or agree to do any actions shall not be a breach of the foregoingthis Section 5.8). The Company Bank of York shall, and shall cause each of its Subsidiaries and its and their respective Representatives to, (i) immediately cease and cause to be terminated any solicitationsolicitations, encouragement, discussion discussions or negotiation negotiations with any Person (other than Investar or groups that may be ongoing its Affiliates) conducted before the date of this Agreement with respect to any Takeover Acquisition Proposal and promptly request return or potential Takeover Proposal. The Company shall promptly destruction of confidential information related thereto, (ii) except to the extent the Bank of York board of directors determines in good faith (after the date hereof request each Person (if anyconsultation with its legal counsel) that has heretofore executed a such action is consistent with the Bank of York board of directors’ fiduciary duties under applicable law, not terminate, waive, amend, release or modify any provision of any confidentiality or standstill agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover any Acquisition Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company which it or any of its Subsidiaries or any of Representatives is a party and (iii) use its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives commercially reasonable efforts to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into enforce any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely agreement relating to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this AgreementAcquisition Proposal.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received a bona fide, written Takeover Proposal from any Person or group that did not result from a breach of this Section 6.02, and (ii) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or could reasonably be expected to result in a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, (A) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group making such Takeover Proposal; provided, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b5.8(a), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the contrary in this Agreement, at any time prior to obtaining the Acceptance TimeRequisite Shareholder Approval, in the Company Board event Bank of York receives an unsolicited, bona fide Acquisition Proposal in writing from a third party (which has not been withdrawn), Bank of York may effect an Adverse Recommendation Change engage in response discussions and negotiations (including exchanging draft agreements) with, furnish or cause to a Superior be furnished any information and data to, and afford access to its personnel, properties, books and records, to the Person making such Acquisition Proposal and its Representatives if and only if: (vi) the Company Bank of York board of directors has complied with the other provisions of this Section 6.02, (w) the Company Board determines determined in good faith (after consultation with its outside legal counsel and financial advisor) that such Acquisition Proposal is, or is reasonably likely to lead to, a Superior Proposal, and (ii) the Bank of York board of directors determines in good faith, (after consultation with its legal counsel) that the failure to take such action would be inconsistent with more likely than not to result in a violation of the exercise Bank of its York board of directors’ fiduciary duties under applicable Law, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreementlaw; provided, however, that no Adverse Recommendation Change may be made unless the Company that, prior to providing any nonpublic information to such Person or participating in discussions or negotiations with such Person, Bank of York shall have first complied entered into a confidentiality agreement (which confidentiality agreement shall not constitute a Bank of York Acquisition Agreement and a copy of which confidentiality agreement shall be promptly provided for informational purposes only to Investar) with such Person on terms that are no more favorable to such Person than the confidentiality provisions of Article VII and that any nonpublic information concerning Bank of York provided to such Person, to the extent not previously provided to Investar, is promptly provided to Investar. In addition, nothing herein shall restrict Bank of York from complying with its disclosure obligations in Section 6.02(e)with regard to any Acquisition Proposal under applicable law.
(gc) Notwithstanding anything Bank of York will notify Investar promptly (and in any event within 48 hours) after receipt of any Acquisition Proposal or any material modification of or material amendment to any Acquisition Proposal, or any request for non-public information relating to Bank of York or for access to the contrary contained in this Section 6.02 personnel, properties, books or elsewhere in this Agreementrecords of Bank of York by any Person that has made, the Company Board may, at any time prior or to the Acceptance TimeKnowledge of Bank of York, make may be considering making, an Adverse Recommendation ChangeAcquisition Proposal, if: (i) there which notice shall occur or arise after include the date material terms of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as and identity of the date Person(s) making such Acquisition Proposal. Bank of this Agreement York will (subject to the fiduciary duties of the Bank of York board of directors) keep Investar reasonably informed of the status and does not relate to any Takeover Proposal or the material terms and conditions of any such Acquisition Proposal and of any material amendments thereto.
(d) Except as provided in Section 5.9, the Bank of York board of directors shall not fail to make at any time required by this Agreement, which eventwithdraw, development amend, modify or change materially qualify, in circumstancea manner adverse to Investar, the Bank of York Board Recommendation, or adopt, approve or publicly recommend an Acquisition Proposal, or make any material consequences thereofpublic statement inconsistent with the Bank of York Board Recommendation, becomes known or resolve or agree to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall take any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: foregoing actions (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stockforegoing, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines a “Change in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writRecommendation”).
Appears in 1 contract
No Solicitation. (a) Until the earlier of the Effective Time and the valid termination of this Agreement pursuant Subject to Section 8.017 hereof, prior to the Termination Date, the Company shall notStockholder agrees not to, and shall use its reasonable best efforts to cause its Subsidiaries Affiliates and its and their respective Representatives not to, directly or indirectly, (i) solicit, initiate, knowingly facilitate encourage (including by means of furnishing or disclosing information), knowingly encourage facilitate, discuss or negotiate any inquiries or requests for information with respect to, or the submission making of, any inquiry regarding, or announcement of any inquiriesproposal or offer (written or oral) that constitutes, proposals or offers could reasonably be expected to result in or lead to, any Company Acquisition Proposal, (ii) furnish or disclose any non-public information to any Person in connection with, or that constitute or would could reasonably be expected to lead to any Takeover Proposalto, (ii) provide any non-public information concerning the a Company or its Subsidiaries to any Person or group in connection with any Takeover Proposal, or engage in any discussions or negotiations with respect to any Takeover Acquisition Proposal, (iii) approveengage in, supportcontinue or otherwise participate in any negotiations or discussions concerning, adoptor provide access to its properties, endorse books and records or recommend any Takeover confidential information or data to any Person relating to, any proposal, offer, inquiry or request for information that constitutes, or could reasonably be expected to result in or lead to, any Company Acquisition Proposal, (iv) prepare or take any action to make the provisions steps in connection with a public offering of any “fair price,” “moratorium,” “control share acquisition,” “business combination” Equity Securities of any Group Company (or other similar anti-takeover statute any Affiliate or regulation (including successor of any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover ProposalGroup Company), (v) execute or enter into, any Contract, letter of intent, memorandum of understanding, agreement in principle, confidentiality agreement, merger agreement, acquisition agreement, exchange agreement, joint venture agreement, partnership agreement, option agreement or other similar agreement for or relating to any Company Acquisition Proposal, (vi) waive or otherwise forbear in the enforcement of any rights or other benefits under confidential information agreements relating to a Company Acquisition Proposal, including without limitation any “standstill” or similar provisions thereunder; or (vii) otherwise cooperate with in any way with, or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiationsin, or (vi) resolve knowingly facilitate or agree encourage any effort or attempt by any Person to do or seek to do any of the foregoing. The Company Stockholder also agrees that immediately following the execution of this Agreement the Stockholder shall, and shall use commercially reasonable efforts to cause its Subsidiaries Affiliates and its and their respective Representatives to, immediately cease and cause to be terminated any solicitationsolicitations, encouragement, discussion discussions or negotiation negotiations with any Person or groups that may be ongoing (other than the parties and their respective Representatives) conducted heretofore in connection with respect to any Takeover an Acquisition Proposal or potential Takeover any inquiry or request for information that could reasonably be expected to lead to, or result in, a Company Acquisition Proposal. The Company Stockholder shall promptly (and in any event within one (1) Business Day) notify, in writing, the Company of the receipt of any Company Acquisition Proposal and any inquiry, proposal, offer or request for information received after the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company or any of its Subsidiaries or any of its and their respective businessesconstitutes, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received a bona fide, written Takeover Proposal from any Person or group that did not result from a breach of this Section 6.02, and (ii) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or could reasonably be expected to result in a Superior Proposalor lead to, then any Company Acquisition Proposal in reasonable detail (including the Company may, upon receipt identity of an Acceptable Confidentiality Agreement executed by such Person or group the Persons making such Takeover Company Acquisition Proposal). Notwithstanding anything in this Agreement to the contrary, (A) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group making such Takeover Proposal; provided, that (xi) the Company Stockholder shall substantially concurrently provide to Acquiror any non-public information (or access) concerning not be responsible for the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information actions of the Company or its SubsidiariesBoard of Directors (or any committee thereof), in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure any Subsidiary of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiariesor any officers, or its or directors (in their respective Representativescapacity as such), receives employees and professional advisors of any inquiryof the foregoing (the “Company Related Parties”), proposal or offer that constitutes or could reasonably be expected to lead including with respect to any Takeover Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of matters contemplated by this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b6(a), (ii) approve the Stockholder makes no representations or recommend warranties with respect to the adoption ofactions of any of the Company Related Parties, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, and (iii) cause or permit any breach by the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of its obligations under Section 5.6 of the foregoing actionsBusiness Combination Agreement shall not be considered a breach of this Section 6(a) (it being understood for the avoidance of doubt that the Stockholder shall remain responsible for any breach by the Stockholder or his, (v) following the date any Takeover Proposal her or its Representatives (other than any tender or exchange offer relating to securities of the such Representative that is a Company (other than the Offer)Related Party) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable Law, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”6(a), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e).
(g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writ
Appears in 1 contract
Sources: Transaction Support Agreement (Omnichannel Acquisition Corp.)
No Solicitation. (a) Until Subject to the earlier provisions of this Section 6.2, and except for actions or omissions taken by or at the direction of Parent, Merger Sub or the Rollover Stockholders or their respective Affiliates, including in such Person’s capacity as a director, officer or employee of any of the Effective Time and Group Companies, during the valid termination of this Agreement pursuant to Section 8.01Pre-Closing Period, the Company shall not, and shall cause not authorize or permit any of its Representatives, any of the Company’s Subsidiaries and its and or any of their respective Representatives not to, directly or indirectly, :
(i) solicit, initiate, knowingly facilitate initiate or knowingly encourage encourage, or take any other action to knowingly facilitate, any Competing Proposal or any inquiries or the submission or announcement making of any inquiries, proposals proposal or offers offer that constitute or would could reasonably be expected to lead to any Takeover a Competing Proposal, ;
(ii) provide enter into, continue or otherwise engage in discussions or negotiations with any Person or furnish to any Person (or any representative thereof) any non-public information concerning with respect to the Company or any of its Subsidiaries, or knowingly cooperate in any way with any Person (or any representative thereof), in each case, with the intent to induce the making of, a Competing Proposal or any proposal or offer that could reasonably be expected to lead to a Competing Proposal;
(iii) approve, endorse, recommend or enter into any written agreement in principle, letter of intent, merger agreement, acquisition agreement or other similar agreement or any Contract relating to any Competing Transaction (other than an Acceptable Confidentiality Agreement entered into in accordance with Section 6.2(b));
(iv) grant any waiver, amendment or release under any standstill, confidentiality or similar written agreement to which the Company is a party and the Company shall promptly take all actions necessary to terminate or cause to be terminated any such waiver previously granted with respect to any provision of any such standstill, confidentiality or similar written agreement and to enforce such standstill, confidentiality or similar agreement; or
(v) authorize or direct any of the Representatives of the Company or any of its Subsidiaries to take any action or resolve to propose, agree or publicly announce an intention to do any of the foregoing.
(b) Notwithstanding anything in this Agreement to the contrary, at any time prior to the receipt of the Company Stockholder Approval, following the receipt of an unsolicited, written and bona fide proposal or offer regarding a Competing Transaction that was not obtained in violation of this Section 6.2, (i) the Company, the Special Committee and their respective Representatives may communicate with the Person or group of Persons who has made such proposal or offer to clarify and understand the terms and conditions thereof, (ii) notify such Persons of the restrictions of this Section 6.2(b); (iii) the Company and its Representatives may furnish nonpublic information in connection with response to the request of the Person or group of Persons who has made such proposal or offer, provided that (x) prior to furnishing such nonpublic information, the Company receives from such Person or group of Persons an executed Acceptable Confidentiality Agreement, and (y) at least forty eight (48) hours prior to furnishing any Takeover Proposalsuch nonpublic information to such Person or group of Persons, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent); and (iv) the Company, the Special Committee and their respective Representatives may engage or engage participate in any discussions or negotiations with the Person or group of Persons who has made such proposal or offer provided that prior to taking any actions described in clause (iii), or (iv), the Special Committee shall (A) have determined in good faith, after consultation with its outside legal counsel, that such proposal or offer constitutes a Superior Proposal or could reasonably be expected to result in a Superior Proposal; (B) have determined in good faith, after consultation with its outside legal counsel, that the failure to take such action could reasonably be expected to be inconsistent with its fiduciary duties under applicable Law; and (C) provide Parent written notice of the receipt by the Company of any Competing Proposal or any inquiry, offer or proposal that could reasonably be expected to lead to a Competing Proposal (including the identity of the Person or group of Persons making or submitting such Competing Proposal, and details of the material terms and conditions thereof) at least forty eight (48) hours prior to taking any such action.
(c) The Company shall keep Parent promptly and reasonably informed with respect to (i) any Takeover inquiry or indication of interest that could lead to a Competing Proposal, (ii) the status of any such Competing Proposal and (iii) approvethe status, support, adopt, endorse or recommend any Takeover Proposal, (iv) take any action to make material developments and the provisions terms of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve or agree to do any of the foregoingmaterial modification thereto. The Company shallagrees that it will not enter into any agreement with any Person subsequent to the date hereof that prohibits the Company from providing any information or materials to Parent in accordance with, and or otherwise complying with, this Section 6.2(c).
(d) The Company shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation discussions existing as of the date hereof with any Person or groups group of Persons that may be ongoing with respect relate to any Takeover Proposal or potential Takeover Competing Proposal. The Company shall promptly after .
(e) Without prejudice to Section 6.2(f) and Section 6.2(g), during the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to Pre-Closing Period, neither the Company or destroy all non-public documents and materials relating to nor the Takeover Proposal or to the Company or any of its Subsidiaries or any of its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives Board (in accordance with the terms of such confidentiality agreement. None of the Company Section 10.16) nor any committee thereof shall (i) withhold, withdraw, amend, qualify or its Subsidiaries shall enter into any confidentiality agreement subsequent modify, in a manner adverse to the date hereof which prohibits the Company Parent or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this AgreementMerger Sub, the Company and its Representatives may Recommendation, (ii) adopt, approve or recommend any Competing Transaction, (iii) fail to include the Company Recommendation in the Proxy Statement or fail to recommend against any Competing Transaction subject to Regulation 14D under the Exchange Act in any solicitation or recommendation statement on Schedule 14D-9 as promptly as practicable after the commencement of such Competing Transaction (but in any event inform a Person within ten (10) Business Days following such commencement), or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby (iv) resolve or agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreementof the foregoing actions (any of the actions or events described in clauses “(i)” through “(iv)”, a “Change in Company Recommendation ”).
(bf) Notwithstanding anything in this Agreement to the contrary contained in this Agreementcontrary, if at any time prior to the Acceptance Time, (i) receipt of the Company has received a bona fideStockholder Approval, written Takeover Proposal from any Person or group that did not result from a breach of this Section 6.02, and (ii) if in response to the receipt by the Company of a Competing Proposal, the Board determines in good faith, after faith upon the direction of the Special Committee following consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or could reasonably be expected to result in a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, (A) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group making such Takeover Proposal; provided, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to proposal constitutes a Superior Proposal if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would could reasonably be expected to be inconsistent with the exercise of to its fiduciary duties under applicable LawLaws, the Board (xacting upon the recommendation of the Special Committee) or the Special Committee, as the case may be, may (1) make a Change in Company Board determines Recommendation in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend respect of such Superior Proposal, and/or (y2) cause the Company to terminate this Agreement in accordance with Section 9.1(c)(ii); provided that (i) the Company shall have provided prior written notice to Acquiror, at least four Board (4acting upon the recommendation of the Special Committee) Business Days prior to effecting any Adverse Recommendation Change, or the Special Committee has first notified Parent in writing of its intent to take such actionaction (any such notice, specifying a “Change in Company Recommendation Notice”), which notice shall contain the reasons therefor and including identity of the Person making the Superior Proposal, specify the material terms of the Superior Proposal, contain a copy of the proposed acquisition agreement and any other material documents related to such and/or agreements providing for the Superior Proposal and indicate that the Board (acting upon the recommendation of the Special Committee) or the Special Committee intends to effect a “Notice of Intended Change in Company Recommendation Change”), and and/or terminate this Agreement; (zii) if requested by Parent in writing by Acquirorwriting, the Company has negotiatedshall, and has caused shall cause its Subsidiaries and its and their respective Representatives to, after providing for a period of at least five (5) Business Days following receipt by Parent of the Change in Company Recommendation Notice (such time period, the “Notice Period”) and prior to making any such Notice Change in Company Recommendation and/or terminating this Agreement, negotiate with Parent and any Representative of Intended Recommendation Change, negotiated with Acquiror Parent in good faith during (to the four (4extent Parent desires to negotiate) Business Day period after such Notice of Intended Recommendation Change to amend permit Parent to propose amendments to the terms and conditions of this Agreement and the other agreements contemplated hereby Transactions (a “Parent Proposal”); (iii) following the Notice Period, and taking into account any Parent Proposal received during the Notice Period, the Board (acting upon the recommendation of the Special Committee) or the Special Committee shall have considered in good faith such Parent Proposal, if any, and shall, prior to making any such Change in Company Recommendation and/or terminating this Agreement, have determined, in respect of such Superior Proposal, that the Superior Proposal no longer constitutes would continue to constitute a Superior Proposal and at if the end revisions proposed in such Parent Proposal, if any, were to be given effect; (iv) such Superior Proposal did not result from a material breach of this Section 6.2 (other than any such four (4) Business Day period (as it may be extended pursuant to breach caused by Parent, Merger Sub, the following proviso) the Company Board again makes the determinations described in clauses (w) Rollover Stockholders or their respective Affiliates); and (xv) with respect to such Superior Proposal; provided, further, that in the event that there the Board (acting upon the recommendation of the Special Committee) or the Special Committee (in accordance with Section 10.16) causes the Company to terminate this Agreement in accordance with Section 9.1(c)(ii), the Board (acting upon the recommendation of the Special Committee) or the Special Committee shall cause the Company to pay to Parent the Company Termination Fee in accordance with Section 9.3(a). The Company acknowledges and agrees that, in connection with a Change in Company Recommendation Notice delivered in connection with a Competing Proposal that is any determined to be a Superior Proposal, each successive material amendment modification to the financial terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Competing Proposal shall be deemed to be constitute a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during new Competing Proposal to which the Company shall, requirements of this Section 6.2(f) shall again apply and shall cause its Subsidiaries and its and their respective directorstrigger a new Notice Period, officers, employees and other Representatives to, negotiate in good faith with Acquiror except that the Notice Period shall be extended until at least three (3) Business Days after Days.
(g) Notwithstanding anything in this Agreement to the contrary, at any time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure receipt of the Company Stockholder Approval, the Board to (acting upon the recommendation of the Special Committee) or the Special Committee may effect an Adverse a Change in Company Recommendation Change or and direct the Company to terminate this Agreement if:
(i) a material development or change in circumstances has occurred or arisen after the date of this Agreement that was not known to, nor reasonably foreseeable by, any member of the Special Committee as of or prior to the date hereof and did not result from or arise out of the announcement or pendency of, or any actions required to be taken by the Company (or to be refrained from being taken by the Company) pursuant to, this Agreement (an “Intervening Event”), provided, that in no event shall the following developments or changes in circumstances constitute an Intervening Event: (x) the receipt, existence, or terms of a Competing Proposal or any matter relating thereto or consequence thereof or any inquiry, proposal, offer, or transaction from any third party relating to Section 8.01(gor in connection with a transaction of the nature described in the definition of “Competing Proposal” (which, for the purposes of the Intervening Event definition, shall be read without reference to the percentage thresholds set forth in the definition thereof) or (y) any change in the price, or change in trading volume, of the Shares (provided, however, that the exception to this clause (y) shall not apply to the underlying causes giving rise to or contributing to such change or prevent any of such underlying causes from being taken into account in determining whether an Intervening Event has occurred),
(ii) the Board has first reasonably determined in good faith judgement upon the recommendation of the Special Committee, after consultation with outside legal counsel, that failure to do so would reasonably be expected to be inconsistent with the exercise directors’ duties under applicable Law,
(iii) five (5) Business Days have elapsed since the Company has given notice of its fiduciary termination of this Agreement in response to such Intervening Event to Parent advising that it intends to take such action and specifying in reasonable detail the reasons therefor,
(iv) during such five (5)-Business-Day period, the Company has considered and, if requested by Parent, engaged in good faith discussions with Parent regarding, any adjustment or modification to the terms of this Agreement proposed by Parent, and
(v) the Board (acting upon recommendation of the Special Committee) or the Special Committee, following such five (5)-Business-Day period, again reasonably determines in good faith, after consultation with outside legal counsel and taking into account any adjustment or modification to the terms of this Agreement proposed by Parent, that failure to do so would reasonably be expected to be inconsistent with the directors’ duties under applicable Law.
(fh) Nothing contained in this Agreement shall prohibit the Company or the Company Board or any committee thereof from taking and disclosing (i) making any disclosure to the Company’s stockholders a position if the Board or any committee thereof has determined in good faith that the failure to do so could reasonably be expected to be inconsistent with respect to a tender offer by a third party pursuant to Rules 14d-9 and applicable Laws (including fiduciary duties), or (ii) complying with Rule 14d-9, Rule 14e-2(a) or Item 1012(a) of Regulation M-A promulgated under the Exchange Act with respect to a Competing Proposal (or from issuing any similar communication to its stockholders in connection with the making or amendment of a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(etender offer or exchange offer).
(g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writ
Appears in 1 contract
No Solicitation. (a) Until At all times during the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 8.01Pre-Closing Period, the Company shall not, and shall cause not authorize or knowingly permit its Subsidiaries and its and their respective Representatives not to, directly or indirectly, indirectly (other than with respect to Parent or Merger Sub): (i) solicit, initiate, propose or take any action to knowingly facilitate or knowingly encourage any inquiries regarding, or the submission or announcement of any inquiriesproposal or offer that constitutes, proposals or offers could reasonably be expected to lead to, an Acquisition Proposal; (ii) except as otherwise expressly permitted by this Section 6.9(a), enter into, continue or otherwise participate in any discussions or negotiations regarding, furnish to any Third Party any information or data relating to, afford access to the business, personnel, properties, assets, books or records of the Company in connection with, or otherwise cooperate with any Person with respect to, any Acquisition Proposal or any inquiry, proposal or offer that constitute or would could reasonably be expected to lead to an Acquisition Proposal (except to provide notice as to the existence of these provisions or solely to the extent necessary to clarify the terms and conditions of any Takeover Acquisition Proposal); (iii) grant any waiver, (ii) provide any non-public information concerning the Company amendment or its Subsidiaries to any Person release of or group in connection with any Takeover Proposalunder, or engage in fail to enforce, any discussions confidentiality, standstill or negotiations similar agreement (or any confidentiality, standstill or similar provision of any other Contract) with respect to any Takeover potential Acquisition Proposal, (iii) approveunless the Company Board determines in good faith, supportafter consultation with the Company’s outside legal counsel, adopt, endorse or recommend any Takeover Proposal, that the failure to take such action would be reasonably expected to be inconsistent with the fiduciary duties of the Company Board under applicable Law; (iv) enter into any letter of intent, Contract, commitment or agreement in principle with respect to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement entered into pursuant to the immediately following sentence) or enter into any Contract or commitment requiring the Company to abandon, terminate or fail to consummate the Transactions or that would otherwise materially impede the ability of Parent and Merger Sub to consummate the Merger; (v) take any action to make or exempt any Third Party from the provisions of any “fair price,” “moratorium,” “control share acquisition,” restriction on “business combinationcombinations” or other any similar anti-takeover statute provision contained in applicable Takeover Provisions or regulation (including any transaction under, the Company Charter Documents or grant a third party becoming an “interested stockholder” under, waiver under Section 203 of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, DGCL; or (vi) resolve resolve, propose or agree to do any of the foregoing. The Company shallNotwithstanding anything in this Agreement to the contrary, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause if in response to be terminated any solicitation, encouragement, discussion or negotiation with any Person or groups that may be ongoing with respect to any Takeover an unsolicited bona fide written Acquisition Proposal or potential Takeover Proposal. The Company shall promptly made by a Third Party after the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company or any of its Subsidiaries or any of its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to obtaining the Acceptance TimeRequisite Company Vote, (i) the Company has received a bona fide, written Takeover which Acquisition Proposal from any Person or group that did not result from a breach of this Section 6.026.9, the Company Board determines in good faith (after consultation with outside legal counsel and financial advisors) that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal and, after consultation with outside legal counsel, that the failure to take such action would be reasonably likely to be inconsistent with the fiduciary duties of the Company Board under applicable Law, then the Company may, at any time prior to obtaining the Requisite Company Vote (but in no event after such time), enter into a customary confidentiality agreement (1) containing provisions limiting the disclosure or use of nonpublic information of or with respect to the Company that are not, in the aggregate, less favorable to the Company than those contained in the Confidentiality Agreement, (2) that does not include any provision calling for any exclusive right to negotiate with any Third Party and (3) that does not prevent the Company from providing any information to Parent, its Affiliates and their respective Representatives in accordance with this Agreement or otherwise complying with its obligations under this Agreement (an “Acceptable Confidentiality Agreement”) with such Third Party making such an Acquisition Proposal (it being agreed that any such Acceptable Confidentiality Agreement need not contain a “standstill” or other provisions having similar effect) and thereafter (A) furnish information and data (including nonpublic information) with respect to the Company and afford access to the business, personnel, properties, assets, books or records of the Company, in each case, pursuant to such Acceptable Confidentiality Agreement, and (B) enter into, maintain and participate in discussions or negotiations with, the Third Party making such Acquisition Proposal and its Representatives; provided, that the Company will concurrently provide to Parent any information and data concerning the Company or access provided to such Third Party that was not previously made available to Parent. The Company shall ensure that its Representatives are aware of the provisions of this Section 6.9(a). Without limiting the foregoing, it is agreed that, for purposes of determining whether a breach of this Section 6.9(a) has occurred, the actions of any Representative of the Company shall be deemed to be the actions of the Company, and the Company shall be responsible for any breach of this Section 6.9 by any Representative of the Company acting on behalf of the Company.
(b) The Company shall, as promptly as practicable, and in any event no later than 48 hours after receipt thereof, notify Parent, orally and in writing, of any Acquisition Proposal or any inquiry, proposal or offer that expressly contemplates or could reasonably be expected to lead to an Acquisition Proposal. The Company shall thereafter keep Parent reasonably informed on a reasonably current basis of the status of, or any material developments, discussions or negotiations regarding, any such inquiry, proposal, offer or Acquisition Proposal, and the material terms and conditions thereof (including any change in price or form of consideration or other material amendment thereto).
(c) Except as expressly permitted by Section 6.9(d), neither the Company Board nor any committee thereof shall (i) (1) withhold, fail to include in (or remove from) the Proxy Statement, withdraw, qualify or modify in a manner adverse to Parent (or publicly propose or resolve to withhold, fail to include in (or remove from) the Proxy Statement, withdraw, qualify or modify in a manner adverse to Parent), the Company Recommendation; (2) adopt, approve, recommend, submit to the Stockholders or declare advisable (or publicly propose to adopt, approve, recommend, submit to the Stockholders or declare advisable) any Acquisition Proposal; (3) fail to (A) reaffirm the Company Recommendation and (B) recommend against acceptance of a tender or exchange offer by the Stockholders pursuant to Rule 14d-2 under the Exchange Act for outstanding shares of Company Common Stock, in each case, within ten (10) Business Days after receipt of a written request of Parent following an Acquisition Proposal that has been publicly announced (in the case of clause (A)) or the commencement of such tender offer or exchange offer (in the case of clause (B)) (any action described in this Section 6.9(c), other than as described in Section 6.9(f), being referred to as a “Company Adverse Recommendation Change”); (ii) subject to Section 8.1(d)(i), cause or allow the Company to enter into a Specified Agreement or (iii) resolve, propose or agree to take any such action described in clause (i) or (ii).
(d) Notwithstanding anything in this Agreement to the contrary, at any time prior to obtaining the Requisite Company Vote, the Company Board may effect a Company Adverse Recommendation Change in connection with an Acquisition Proposal or terminate this Agreement to enter into a Specified Agreement, in each case if, and only if, (i) such Acquisition Proposal did not result from a breach of this Section 6.9, (ii) the Company Board determines in good faith, after consultation with its financial advisor and the Company’s outside legal counsel, that the failure to make the Company Adverse Recommendation Change or terminate this Agreement to enter into a Specified Agreement would be reasonably likely to be inconsistent with the fiduciary duties of the Company Board under applicable Law, (iii) the Company has given Parent written notice of the Company Board’s intention to make a Company Adverse Recommendation Change or terminate this Agreement to enter into a Specified Agreement not earlier than 11:59 p.m. New York time on the fourth Business Day after Parent receives such Takeover written notice, (iv) the decision to make a Company Adverse Recommendation Change is in connection with an Acquisition Proposal constitutes or could reasonably be expected with the Company’s intent to result in terminate this Agreement to enter into a Specified Agreement, and the Company shall have complied with clauses (1) through (5), as follows: (1) prior to giving effect to clauses (2) through (5), the Company Board shall have determined that such Acquisition Proposal is a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, ; (A) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group making such Takeover Proposal; provided, that (x2) the Company shall substantially concurrently provide have made available to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror Parent in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, provide the material terms and conditions of such Acquisition Proposal and a copy of the most current draft of any Contract relating to such inquiry, proposal, offer or request and the nature of such request, and thereafter Acquisition Proposal; (3) the Company shall keep Acquiror reasonably informed on a prompt have negotiated in good faith with Parent (and timely basis of the status and material details of discussions caused its Representatives to so negotiate with respect theretoParent), including any material changes to the terms of any such inquiryextent that Parent desires to negotiate, proposal, offer or request. Without limiting during the generality of four Business Day period provided in the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, foregoing clause (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (BSection 6.9(d) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto)proposed revisions to this Agreement or other proposals made by Parent, (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer)if any, fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) so that the Company recommends rejection Acquisition Proposal would no longer constitute a Superior Proposal; (4) after considering the results of such tender or exchange offer negotiations with Parent and (B) reaffirming its recommendation of this Agreementtaking into account the proposals made by Parent, the Offer and the Merger (any action described in clause (i)if any, (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable Law, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and a financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, advisor of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquirornationally recognized reputation, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (that such Acquisition Proposal remains a Superior Proposal, and, after consultation with its outside legal counsel and financial advisors) counsel, that the failure to make the Company Adverse Recommendation Change or terminate this Agreement to enter into a Specified Agreement would be reasonably likely to be inconsistent with the fiduciary duties of the Company Board to effect an Adverse Recommendation Change or under applicable Law and (5) if the Company intends to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders enter into a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from issuing a “stopSpecified Agreement, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e8.1(d)(i). For clarity, the provisions of this Section 6.9(d) shall also apply to any amendment to the financial terms or any other material amendment to any Acquisition Proposal (except that any reference to “four Business Days” shall instead be deemed a reference to “two Business Days”) or any successive Acquisition Proposals.
(ge) Notwithstanding anything in this Agreement to the contrary contained in this Section 6.02 or elsewhere in this Agreement, the Company Board maycontrary, at any time prior to obtaining the Acceptance TimeRequisite Company Vote, the Company Board may make an a Company Adverse Recommendation ChangeChange with respect to an Intervening Event, if and only if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and the Company’s outside legal counsel, that, in light of such Intervening Event, that the failure to make an the Company Adverse Recommendation Change would be reasonably likely to be inconsistent with the exercise fiduciary duties of the Company Board under applicable Law; (ii) Parent shall have received from the Company written notice not later than 11:59 p.m. New York time on the fourth Business Day prior to the making of any Company Adverse Recommendation Change, describing the Intervening Event in reasonable detail; (iii) during the four Business Day period provided in the foregoing clause (ii), the Company shall have negotiated in good faith with Parent (and caused its Representatives to negotiate with Parent), to the extent that Parent desires to negotiate, with respect to any proposed revisions to this Agreement or other proposals made by Parent, if any, that would obviate the requirement to make a Company Adverse Recommendation Change; and (iv) after considering the results of negotiations with Parent and taking into account the proposals made by Parent, if any, after consultation with its outside legal counsel, the Company Board shall have determined in good faith that the failure to make the Company Adverse Recommendation Change would be reasonably likely to be inconsistent with the fiduciary duties of the Company Board under applicable Law. For the avoidance of doubt, the provisions of this Section 6.9(e) shall also apply to any material change to the facts and circumstances relating to such Intervening Event (except that any reference to four Business Days shall instead be two Business Days).
(f) Nothing in this Section 6.9 shall prohibit the Company from (i) taking and disclosing a position contemplated by Rule 14d-9 or Rule 14e-2(a) under the Exchange Act or complying with Item 1012(a) of Regulation M-A under the Exchange Act; (ii) making any required disclosure to the Stockholders, if the Company Board determines in good faith, after consultation with outside legal counsel, that the failure to make such disclosure would be reasonably likely to be inconsistent with its fiduciary duties under applicable LawLaw or any disclosure requirement under applicable Law or (iii) making any disclosure that constitutes a “stop, look and listen” communication pursuant to Rule 14d-9(f) promulgated under the Exchange Act.
(g) The Company shall, and shall cause its Representatives to, (i) immediately cease and cause to be terminated any existing solicitations, encouragements, facilitations, discussions or negotiations with any Third Party conducted on or prior to the date hereof by the Company or its Representatives with respect to an Acquisition Proposal; (vii) no Adverse Recommendation Change has been made for three immediately terminate access to any physical or electronic data rooms relating to a possible Acquisition Proposal and (3iii) Business Days after receipt promptly following the execution of this Agreement request and use reasonable best efforts to obtain the return from all such Persons, or cause the destruction, of all copies of confidential information previously provided to such Persons by Acquiror or on behalf of a writthe Company or its Representatives in accordance with the terms of the applicable confidentiality agreement with such Person. For purposes of this Section 6.9(g), the term “Person” shall not include Parent or any Affiliate of Parent or any of their Representatives.
Appears in 1 contract
No Solicitation. (a) Until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 8.01, the Company Seller agrees that it shall not, and shall will cause its Subsidiaries and not to, permit or authorize any of its and their respective or any of its Subsidiaries’ Representatives not to, directly or indirectly, : (i) solicit, initiate, seek, knowingly facilitate encourage or knowingly encourage facilitate, knowingly support or knowingly induce any inquiry with respect to, or the making, submission or announcement of, any proposal that constitutes, or is reasonably expected to lead to, any Alternative Transaction Proposal (except to the extent specifically permitted by Section 5.7(d)); (ii) participate or otherwise engage in any discussions or negotiations regarding, or furnish to any person any non-public information or grant access to Seller’s books, records or personnel with respect to, or take any other action (except to the extent specifically permitted pursuant to Section 5.7(d)) to knowingly facilitate any inquiries or the making of any inquiries, proposals or offers proposal that constitute constitutes or would reasonably be expected to lead to, any Alternative Transaction Proposal (except to provide notification of or disclose the existence of the provisions of this Section 5.7(a)); (iii) grant any Takeover Proposal, (ii) provide person a waiver or release under any non-public information concerning the Company standstill or its Subsidiaries to any Person or group in connection with any Takeover Proposal, or engage in any discussions or negotiations similar agreement with respect to any Takeover Proposalclass of equity security of Seller or any of its Subsidiaries, or approve a transaction in which any person becomes an “interested stockholder” under Section 203 of Delaware Law other than in connection with the Support Agreements), except (A) in that case where Seller’s Board of Directors determines in good faith, after receiving advice from and consultation with its outside legal counsel, that the failure to do so would be inconsistent with its fiduciary obligations to its stockholders under Delaware Law, (B) that the automatic termination or “fall-away” of any standstill or similar agreement shall not constitute a breach of this clause (iii) and (C) as set forth in Section 6.2 of the Disclosure Letter; (iv) approve, support, adopt, endorse or recommend any Takeover Proposal, Alternative Transaction Proposal (iv) take any action except to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, extent specifically permitted pursuant to Section 203 of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, 5.7(d)); (v) enter into any letter of intent or similar document or any contract, agreement or commitment (whether binding or not) contemplating or otherwise cooperate with relating to any Alternative Transaction Proposal or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, transaction contemplated thereby (an “Alternative Acquisition Agreement”); or (vi) resolve authorize or agree commit to do any of the foregoing. The Company shallSeller will, and shall will cause its Subsidiaries to, and will use commercially reasonable efforts to cause its and their respective Representatives to, immediately cease any and cause to be terminated any solicitationall existing activities, encouragement, discussion discussions or negotiation negotiations with any Person or groups that may be ongoing third parties conducted heretofore with respect to any Takeover Proposal or potential Takeover Alternative Transaction Proposal. The Company shall , and, as promptly as reasonably practicable after the date hereof hereof, shall request each the prompt return or destruction of all confidential information previously furnished to any Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company or any of with which Seller, its Subsidiaries or its or their Representatives have engaged in any of its and their respective businesses, operations or affairs heretofore furnished by such activities within the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with twelve (12) month period preceding the terms of such confidentiality agreementdate hereof. None Any breach of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the foregoing provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted 5.7(a) by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received a bona fide, written Takeover Proposal from any Person or group that did not result from a breach of this Section 6.02, and (ii) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or could reasonably be expected to result in a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, (A) furnish information (including non-public information) with respect to the Company and its Seller’s Subsidiaries to the Person or group making such Takeover Proposal; provided, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable Law, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing breach by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable LawSeller.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e).
(g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writ
Appears in 1 contract
No Solicitation. (a) Until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 8.01, the Company No Stockholder shall not, and shall cause its Subsidiaries and its and their respective Representatives not totake, directly or indirectly, (nor shall a Stockholder authorize or permit his representatives, or to the extent within the Stockholder's control, his affiliates to take) any action to (i) encourage (including by way of furnishing nonpublic information), solicit, initiateinitiate or facilitate any Acquisition Proposal, knowingly (ii) enter into any letter of intent, term sheet or other agreement with respect to any Acquisition Proposal or (iii) participate in any way in discussions or negotiations with, or furnish any information to, any person in connection with, or take any other action to facilitate any inquiries or knowingly encourage the submission or announcement making of any inquiriesproposal that constitutes, proposals or offers that constitute or would could reasonably be expected to lead to to, any Takeover Acquisition Proposal; PROVIDED, (ii) provide any non-public information concerning HOWEVER, that nothing in this Section 5 shall prevent the Company Stockholder, in his capacity as a director or its Subsidiaries to any Person or group in connection with any Takeover Proposalexecutive officer of the Company, or engage from engaging in any discussions or negotiations with respect activity permitted pursuant to any Takeover Proposal, (iii) approve, support, adopt, endorse or recommend any Takeover Proposal, (iv) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 5.5 of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve or agree to do any of the foregoingMerger Agreement. The Company shall, and Stockholder shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion all discussions or negotiation with any Person or groups that may be ongoing negotiations commenced prior to the date hereof with respect to any Takeover Proposal or potential Takeover Acquisition Proposal. The Company shall promptly From and after the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company or any of its Subsidiaries or any of its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received a bona fide, written Takeover Proposal from any Person or group that did not result from a breach of this Section 6.02, and (ii) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or could reasonably be expected to result in a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, (A) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group making such Takeover Proposal; provided, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date execution of this Agreement, the Company shall Stockholder will as promptly (and, as practicable communicate to Parent orally and in writing any event, within twenty-four (24) hours) provide Acquiror with unredacted copies inquiry received by him relating to any Acquisition Proposal and the material terms of all written inquiries, requests, proposals any proposal or offersinquiry, including proposed agreementsthe identity of the person and its affiliates making the same, and oral summaries that he may receive in respect of any oral inquiries, requests, proposals such negotiations or offers, received by discussions being sought to be initiated with the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither the Company Board nor any committee thereof . The Stockholder shall (i) withdraw keep Parent fully informed on a prompt basis with respect to any developments with respect to the foregoing and (ii) provide to Parent as soon as practicable after receipt or rescind (delivery thereof with copies of all correspondence and other written material sent or modify or qualify in a manner adverse provided to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or from any Third Party in connection with any Acquisition Proposal. In addition, each of the findings or conclusions Stockholders of the Company Board referred to agrees that he will not enter into any employment, consulting or similar arrangement (or participate in Section 4.03(b), (iiany negotiations or discussions concerning such arrangements) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, with any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any person that has made an Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender Parent or exchange offer relating to securities of the Company (other than the Offer)its affiliates) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable Law, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e).
(g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date termination of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation accordance with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writterms.
Appears in 1 contract
Sources: Voting Agreement (Cogan John F Jr)
No Solicitation. (a) Until the earlier None of the Effective Time and the valid termination of this Agreement pursuant to Section 8.01GB&T, the Company shall not, and shall cause its Subsidiaries and or any officer, director, employee, agent or representative (including any investment banker, financial advisor, attorney, accountant or other retained representative) of GB&T or any of its and their respective Representatives not to, Subsidiaries shall directly or indirectly, indirectly (i) solicit, initiate, knowingly encourage, facilitate (including by way of furnishing information) or knowingly encourage take any other action designed to facilitate any inquiries or proposals regarding any merger, share exchange, consolidation, sale of assets, sale of shares of capital stock (including by way of a tender offer) or similar transactions involving GB&T or any of its Subsidiaries that, if consummated, would constitute an Alternative Transaction (any of the submission foregoing inquiries or announcement of any inquiries, proposals or offers that constitute or would reasonably be expected being referred to lead to any Takeover herein as an "Alternative Proposal"), (ii) provide any non-public information concerning the Company or its Subsidiaries to any Person or group in connection with any Takeover Proposal, or engage participate in any discussions or negotiations with respect to any Takeover Proposal, regarding an Alternative Transaction; or (iii) approveenter into any agreement regarding any Alternative Transaction. Notwithstanding the foregoing, support, adopt, endorse or recommend any Takeover Proposal, (iv) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the Corporation Law) inapplicable to any Person other than Acquiror GB&T Board and its Affiliates or to any transactions constituting or contemplated representatives shall be permitted, before the approval of this Agreement by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve or agree to do any of the foregoing. The Company shallGB&T's shareholders, and shall cause its Subsidiaries subject to compliance with the other terms of this Section 6.10 and its and their respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with any Person or groups that may be ongoing with respect to any Takeover Proposal or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed first entering into a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company or any of its Subsidiaries or any of its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the person proposing such Alternative Proposal on terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent substantially similar to, and no less favorable to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary GB&T than, those contained in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any to furnish nonpublic information regarding GB&T to a person, and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates consider and participate in discussions and negotiations with respect to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received a bona fide, written Takeover fide Alternative Proposal from any Person or group received by GB&T that did not result from a breach of this Section 6.02, and (ii) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or could is reasonably be expected likely to result in a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, (A) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group making such Takeover Proposal; provided, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (v) to the Company has complied with extent that and so long as the other provisions of this Section 6.02, (w) the Company GB&T Board reasonably determines in good faith (after consultation with its outside legal counsel) that the failure to take such action do so would cause it to violate its fiduciary duties. As used in this Agreement, "Alternative Transaction" means any of (w) a transaction pursuant to which any person (or group of persons) (other than SunTrust or its affiliates), directly or indirectly, acquires or would acquire more than 25% of the outstanding shares of GB&T Common Stock or outstanding voting power or of any new series or new class of preferred stock that would be inconsistent entitled to a class or series vote with respect to the exercise of its fiduciary duties under applicable LawMerger, whether from GB&T or pursuant to a tender offer or exchange offer or otherwise, (x) a merger, share exchange, consolidation or other business combination involving GB&T (other than the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend such Superior ProposalMerger), (y) any transaction pursuant to which any person (or group of persons) (other than SunTrust or its affiliates) acquires or would acquire control of assets (including for this purpose the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, outstanding equity securities of its intent to take such action, specifying the reasons therefor Subsidiaries of GB&T and including a copy securities of the proposed acquisition agreement and entity surviving any other documents related to such Superior Proposal (a “Notice merger or business combination including any of Intended Recommendation Change”), and (zGB&T's Subsidiaries) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e).
(g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstanceGB&T, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of its Subsidiaries representing more than 25% of the following constitutefair market value of all the assets, net revenues or be net income of GB&T and its Subsidiaries, taken into account in determining the existence ofas a whole, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreementimmediately before such transaction, or (z) any eventother consolidation, factbusiness combination, circumstance recapitalization or occurrence similar transaction involving GB&T or combination or series thereof relating to or involving Acquirorany of its Subsidiaries, including declines in other than the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of transactions contemplated by this Agreement, that as a result of which the holders of shares of GB&T immediately before such Intervening Event was reasonably foreseeable transactions do not, in the aggregate, own at least 75% of the outstanding shares of common stock and the outstanding voting power of the surviving or reasonably likely to occur or arise resulting entity in such transaction immediately after the date consummation thereof in substantially the same proportion as such holders held the shares of this Agreement; (iii) GB&T Common Stock immediately before the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writconsummation thereof.
Appears in 1 contract
No Solicitation. (a) Until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 8.01, the Company Stockholder hereby agrees that it shall not, and shall cause its Subsidiaries and its and their respective Representatives not to, directly or indirectly, to the extent prohibited by Section 6.1 of the Merger Agreement (iassuming for this purpose that Company Stockholder is the “Company”, as such term is defined in the Merger Agreement), (a) solicit, initiate, knowingly facilitate or knowingly encourage the submission (including by way of furnishing or announcement of providing access to non-public information), or take any inquiriesother action that would reasonably be expected to facilitate, any inquiries or proposals that constitute, or offers that constitute or which would reasonably be expected to lead to any Takeover to, an Acquisition Proposal, (iib) provide any non-public information concerning the Company or its Subsidiaries to any Person or group in connection with any Takeover Proposalenter into, participate or engage in in, maintain or continue any discussions or negotiations relating to, any potential Acquisition Proposal with respect to any Takeover ProposalPerson other than Parent, Merger Sub or the Company (including for such purpose any officer or director of the Company), (iiic) approve, support, adopt, endorse or recommend any Takeover Proposal, (iv) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including approve any transaction under, or a third party any Person (other than Parent or Merger Sub) becoming an “interested stockholder” under, Section 203 of the Corporation LawDGCL (except in connection with the Transactions), (d) inapplicable enter into any merger or other agreement, agreement in principle, letter of intent, term sheet, voting or tender agreement, joint venture agreement, partnership agreement or other similar instrument constituting or related to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, Acquisition Proposal or (vie) resolve or agree to do any of the foregoing. The Company shall, and Stockholder shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with any Person or groups that may be ongoing with respect to any Takeover Proposal or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company or any of its Subsidiaries or any of its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received a bona fide, written Takeover Proposal from any Person or group that did not result from a breach of this Section 6.02, and (ii) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or could reasonably be expected to result in a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, (A) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group making such Takeover Proposal; provided, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with any Person conducted heretofore with respect to an Acquisition Proposal, and use reasonable best efforts to obtain the Person making return from all such Takeover Proposal regarding Persons or cause the destruction of all copies of confidential information previously furnished to such Takeover Proposal; provided, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that Persons by the Company, its Subsidiaries, the Subsidiaries or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, andRepresentatives, in connection with such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, provide the material terms and conditions of exploring any such inquiry, proposal, offer or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover potential Acquisition Proposal.
(d) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable Law, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e).
(g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writ
Appears in 1 contract
No Solicitation. (a) Until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 8.01, the The Company shall not, and nor shall cause it permit any of its Subsidiaries and subsidiaries to, nor shall it authorize any person or permit any director, officer or employee of the Company or any of its and their respective Representatives not subsidiaries or any investment banker, attorney, accountant or other advisor or representative of the Company or any of its subsidiaries to, directly or indirectly, (i) solicit, initiateinitiate or encourage, or take any other action knowingly facilitate to facilitate, any Takeover Proposal or knowingly encourage the submission or announcement making of any inquiries, proposals inquiry or offers proposal that constitute or would could reasonably be expected to lead to any a Takeover Proposal, Proposal or (ii) provide any non-public information concerning the Company enter into, continue or its Subsidiaries to any Person or group in connection with any Takeover Proposal, or engage otherwise participate in any discussions or negotiations regarding, or furnish to any person (other than Parent or its representatives or the Company’s representatives) any information with respect to any Takeover Proposal, (iii) approve, support, adopt, endorse or recommend any Takeover Proposal, (iv) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve or agree to do any of the foregoing. The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with any Person or groups that may be ongoing with respect to any Takeover Proposal or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company or any of its Subsidiaries or any of its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received a bona fide, written Takeover Proposal from any Person or group that did not result from a breach of this Section 6.02, and (ii) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or could reasonably be expected to result in a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, (A) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group making such Takeover Proposal; provided, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, that prior to or concurrently with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(d) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the contrary in this Agreement, at any time prior to obtaining the Acceptance TimeStockholder Approval, the Board of Directors of the Company Board may effect an Adverse Recommendation Change may, in response to a Superior written Takeover Proposal if and only if: (v) the Company has complied with the other provisions that such Board of this Section 6.02, (w) the Company Board Directors determines in good faith to be bona fide and determines in good faith constitutes or is reasonably likely to lead to a Superior Proposal, and which Takeover Proposal was unsolicited and did not otherwise result from a breach of this Section 4.02, and subject to compliance with Section 4.02(c) and (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable Lawd), (x) furnish information with respect to the Company Board determines in good faith (after consultation with and its outside legal counsel and financial advisors) that subsidiaries to the applicable person making such Takeover Proposal constitutes (and its representatives) pursuant to a Superior Proposal confidentiality agreement which contains terms that are substantially equivalent to, and in no respect less favorable to the Company than, the terms of the Confidentiality Agreement dated April 1, 2004 (as amended June 30, 2004 and October 15, 2004 and as it may thereafter be amended from time to time), between Parent and the Company (the “Confidentiality Agreement”); provided that it intends all such information is provided on a prior or substantially concurrent basis to accept or recommend such Superior Proposal, Parent and (y) participate in discussions or negotiations with the person making such Takeover Proposal (and its representatives) regarding such Takeover Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding sentence by any director, officer or employee of the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting or any Adverse Recommendation Change, of its intent to take such actionsubsidiaries or any investment banker, specifying the reasons therefor and including a copy attorney, accountant or other advisor or representative of the proposed acquisition agreement and Company or any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal subsidiaries shall be deemed to be a material amendment), the Company shall notify Acquiror breach of such material revision in compliance with this Section 6.02(c4.02(a) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e).
(g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writ
Appears in 1 contract
Sources: Merger Agreement (Corio Inc)
No Solicitation. (a) Until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 8.01, the The Company shall not, and nor shall cause its Subsidiaries and its and their respective Representatives not it authorize or permit any Company Subsidiary to, directly nor shall it authorize or indirectlypermit any officer, director or employee of, or any investment banker, attorney or other advisor or representative (collectively, "Representatives") of, the Company or any Company Subsidiary to, (i) directly or indirectly solicit, initiate, knowingly facilitate initiate or knowingly encourage the submission of, any Company Takeover Proposal (as defined in Section 5.02(e)), (ii) enter into any agreement with respect to any Company Takeover Proposal or announcement (iii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any inquiriesproposal that constitutes, proposals or offers that constitute or would may reasonably be expected to lead to any Takeover Proposal, (ii) provide any non-public information concerning the Company or its Subsidiaries to any Person or group in connection with any Takeover Proposal, or engage in any discussions or negotiations with respect to any Takeover Proposal, (iii) approve, support, adopt, endorse or recommend any Takeover Proposal, (iv) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve or agree to do any of the foregoing. The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with any Person or groups that may be ongoing with respect to any Takeover Proposal or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company or any of its Subsidiaries or any of its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance Time, (i) the Company has received a bona fide, written Takeover Proposal from any Person or group that did not result from a breach of this Section 6.02, and (ii) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or could reasonably be expected to result in a Superior Proposal, then the Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, (A) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group making such Takeover Proposal; provided, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, that prior to or concurrently the first acceptance for payment of shares of Company Common Stock pursuant to the Offer the Company may, to the extent necessary to act in a manner consistent with the Company taking such actions as described in clauses (A) and/or (B) above, the Company shall provide written notice to Acquiror of such determination of the Company Board as provided for in clause (ii) above, together with (subject to the existing terms of confidentiality fiduciary obligations of the Company Board, as determined in place as of the date of this Agreement) the identity of the Person good faith by it after consultation with outside counsel and TM Capital or group making such Takeover Proposal.
(c) The Company shall promptly (andanother nationally recognized independent financial advisor, in any event, within twenty-four (24) hours) notify Acquiror in writing in the event response to a Company Takeover Proposal that the CompanyCompany Board determines, its Subsidiariesin good faith after consultation with outside counsel, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could is reasonably be expected likely to lead to any Takeover Proposala Superior Company Proposal (as defined in Section 5.02(e)), or any initial request for non-public information concerning that was not solicited by the Company and that did not otherwise result from a breach or its Subsidiaries from any Person or group who has made or would reasonably be expected (pursuant to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such noticethe last sentence of this Section 5.02(a)) a deemed breach of this Section 5.02(a), and subject to the existing terms of confidentiality obligations of compliance with Section 5.02(c), (x) furnish information with respect to the Company as in place as of the date of this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer or request and the nature of such request, and thereafter the Company shall keep Acquiror reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the terms of any person making such inquiry, proposal, offer Company Takeover Proposal and its Representatives pursuant to a customary confidentiality agreement and (y) participate in discussions or requestnegotiations with such person and its Representatives regarding such Company Takeover Proposal. Without limiting the generality foregoing, it is agreed that any violation of the foregoingrestrictions set forth in the preceding sentence by any officer, and subject to the existing terms of confidentiality obligations director, investment banker, attorney or other advisor or representative of the Company as in place as or any Company Subsidiary, whether or not such person is purporting to act on behalf of the date Company or any Company Subsidiary or otherwise, shall be deemed to be a breach of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24Section 5.02(a) hours) provide Acquiror with unredacted copies of all written inquiries, requests, proposals or offers, including proposed agreements, and oral summaries of any oral inquiries, requests, proposals or offers, received by the Company, its Subsidiaries, or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers to any Person or group making a Takeover Proposal.
(db) Neither Unless the Company Board, after consultation with outside counsel, determines in its good faith judgment that it is necessary to do so in order to fulfill its fiduciary obligations under applicable Law, neither the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror Parent or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror Parent or Merger Sub), the approval or recommendation by the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation such committee of this Agreement, the Offer and or the Merger, and (Bii) rejecting and not recommending such approve any letter of intent, agreement in principle, acquisition or similar agreement relating to any Company Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (viiiii) following approve or recommend, or publicly propose to approve or recommend, any Company Takeover Proposal. The Company shall not take the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described actions set forth in clause (i), clauses (ii), (iii), (iv), (v), (vi) or (viiiii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable Law, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company preceding sentence unless it has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form terminated or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate concurrently terminates this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law8.01(e).
(fc) The Company promptly shall advise Parent orally and, within one business day, in writing of any Company Takeover Proposal or any inquiry with respect to, or that could reasonably be expected to lead to, any Company Takeover Proposal, the material terms and conditions of any such Company Takeover Proposal (including any changes thereto) and the identity of the person making any such Company Takeover Proposal or inquiry. The Company shall (i) keep Parent fully informed of the status and details (including any change to the terms thereof) of any such Company Takeover Proposal and (ii) provide to Parent as soon as practicable after receipt or delivery thereof with copies of all correspondence and other written material sent or provided to the Company by any third party in connection with any Company Takeover Proposal or sent or provided by the Company to any third party in connection with any Company Takeover Proposal.
(d) Nothing contained in this Agreement Section 5.02 shall prohibit the Company or the Company Board from taking and disclosing to the Company’s its stockholders a position with respect to a tender offer contemplated by a third party pursuant to Rules 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under making any required disclosure to the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall notCompany's stockholders if, in and the good faith judgment of itselfthe Company Board, constitute an Adverse Recommendation Change for after consultation with outside counsel, failure so to disclose would be inconsistent with its obligations under applicable law.
(e) For purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e).
(g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writ:
Appears in 1 contract
No Solicitation. (a) Until the earlier None of the Effective Time and the valid termination of this Agreement pursuant to Section 8.01Seller, the Company shall notStockholder, and shall cause its Subsidiaries and its and their respective Representatives not tonor any officer, directly director or indirectlyemployee of, or any investment banker, attorney or other advisor or representative (collectively, "Representatives") of, the Seller or the Stockholder shall, (i) directly or indirectly solicit, initiate, knowingly facilitate initiate or knowingly encourage the submission or announcement of of, any inquiries, proposals or offers that constitute or would reasonably be expected to lead to any Company Takeover Proposal, (ii) provide enter into any non-public information concerning the Company or its Subsidiaries to any Person or group in connection with any Takeover Proposal, or engage in any discussions or negotiations Contractual Obligation with respect to any Company Takeover Proposal, Proposal or (iii) approve, support, adopt, endorse directly or recommend indirectly participate in any Takeover Proposal, (iv) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” discussion or other similar anti-takeover statute or regulation (including any transaction undernegotiations regarding, or a third party becoming an “interested stockholder” under, Section 203 of the Corporation Law) inapplicable furnish to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate information with or knowingly assist or participate in any such inquiries, proposals, offers, discussions or negotiationsrespect to, or (vi) resolve or agree to do any of the foregoing. The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with any Person or groups that may be ongoing with respect to any Takeover Proposal or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company or any of its Subsidiaries or any of its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the Confidentiality Agreement shall, as of the date of this Agreement, terminate and be of no further force and effect solely to the extent necessary to allow Acquiror to effect the transactions contemplated or permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any other action contemplated this Agreement.
(b) Notwithstanding anything to or facilitate any inquiries or the contrary contained in this Agreementmaking of any proposal that constitutes, if at any time prior to the Acceptance Time, (i) the Company has received a bona fide, written Takeover Proposal from any Person or group that did not result from a breach of this Section 6.02, and (ii) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or could may reasonably be expected to result in a Superior Proposallead to, then the any Company may, upon receipt of an Acceptable Confidentiality Agreement executed by such Person or group making such Takeover Proposal, (A) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group making such Takeover Proposal; provided, that (x) the Company shall substantially concurrently provide to Acquiror any non-public information (or access) concerning the Company or its Subsidiaries that is provided to (or access which is given to) any Person or group and which was not previously provided to Acquiror and (y) the Company shall take reasonable steps to safeguard any commercially sensitive non-public information of the Company or its Subsidiaries, in a manner reasonably consistent with the Company’s past practices in dealing with the disclosure of such information in the context of considering Takeover Proposals, and (B) engage in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, that prior to or concurrently the Closing the -------- ------- Seller and the Stockholder may, to the extent necessary to act in a manner consistent with the fiduciary obligations of the Stockholder's board of directors (the "Stockholder's Board"), as determined in good faith by it after consultation with outside counsel, in response to a Company taking Takeover Proposal that the Stockholder's Board determines, in good faith after consultation with outside counsel and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or another comparable independent financial advisor, is reasonably likely to lead to a Superior Company Proposal, that was not solicited by the Seller or the Stockholder and that did not otherwise result from a breach of this Section 5.7(a), and subject to compliance with Section 5.7(c), (x) furnish information with respect to the Company to the person making such actions as described Company Takeover Proposal and its Representatives pursuant to a customary confidentiality agreement and (y) participate in clauses discussions or negotiations with such person and its Representatives regarding such Company Takeover Proposal.
(Ab) and/or (B) aboveUnless the Stockholder's Board, after consultation with outside counsel, determines in good faith judgment that it is necessary to do so in order to fulfill its fiduciary obligations under applicable law, none of the Stockholder's Board, the Company shall provide written notice to Acquiror board of such determination directors of the Company Board as provided for nor any committee of either such board shall (i) approve any letter of intent, agreement in clause principle, acquisition agreement or similar agreement relating to any Company Takeover Proposal or (ii) above, together with (subject to the existing terms of confidentiality obligations of the approve or recommend any Company as in place as of the date of this Agreement) the identity of the Person or group making such Takeover Proposal.
(c) The Company Seller and the Stockholder promptly shall promptly (advise Buyer orally and, in any eventwithin two business days, within twenty-four (24) hours) notify Acquiror in writing in the event of any Company Takeover Proposal or any inquiry with respect to or that the Company, its Subsidiaries, or its or their respective Representatives, receives any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Company Takeover Proposal, or any initial request for non-public information concerning the Company or its Subsidiaries from any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and, in connection with such notice, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, provide the material terms and conditions of any such inquiry, proposal, offer or request Company Takeover Proposal (including any changes thereto) and the nature identity of the person making such request, Company Takeover Proposal or inquiry. The Seller and thereafter the Company Stockholder shall (i) keep Acquiror reasonably Buyer fully informed on a prompt and timely basis of the status and material details of discussions with respect thereto, (including any material changes change to the terms thereof) of any such inquiry, proposal, offer or request. Without limiting the generality of the foregoing, Company Takeover Proposal and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hoursii) provide Acquiror to Buyer as soon as practicable after receipt or delivery thereof with unredacted copies of all correspondence and other written inquiries, requests, proposals material sent or offers, including proposed agreements, and oral summaries of provided to the Seller or the Stockholder by any oral inquiries, requests, proposals third party in connection with any Company Takeover Proposal or offers, received sent or provided by the Company, its Subsidiaries, Seller or its or their respective Representatives, in each case relating to a Takeover Proposal, or that the Company, its Subsidiaries, or its or their respective Representatives delivers Stockholder to any Person or group making a third party in connection with any Company Takeover Proposal.
(d) Neither the Company Board nor any committee thereof shall (i) withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Acquiror or Merger Sub), the Company Board Recommendation or the findings or conclusions of the Company Board referred to in Section 4.03(b), (ii) approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal, (iii) cause or permit the Company to execute or enter into, any Acquisition Agreement, (iv) publicly propose or announce an intention to take any of the foregoing actions, (v) following the date any Takeover Proposal (other than any tender or exchange offer relating to securities of the Company (other than the Offer)) or any material modification thereto is first made public or sent or given to the stockholders of the Company or received by the Company, fail to issue a press release publicly (A) reaffirming its recommendation of this Agreement, the Offer and the Merger, and (B) rejecting and not recommending such Takeover Proposal within five (5) Business Days (or, if earlier, prior to the anticipated Expiration Date) following Acquiror’s written request to do so (which request may only be made once with respect to any such Takeover Proposal and each material modification thereto), (vi) withhold or fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders or (vii) following the commencement of any tender or exchange offer relating to securities of the Company (other than the Offer), fail to issue a press release publicly announcing within ten (10) Business Days of such commencement (A) that the Company recommends rejection of such tender or exchange offer and (B) reaffirming its recommendation of this Agreement, the Offer and the Merger (any action described in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Acceptance Time, the Company Board may effect an Adverse Recommendation Change in response to a Superior Proposal if and only if: (v) the Company has complied with the other provisions of this Section 6.02, (w) the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with the exercise of its fiduciary duties under applicable Law, (x) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the applicable Takeover Proposal constitutes a Superior Proposal and that it intends to accept or recommend such Superior Proposal, (y) the Company shall have provided prior written notice to Acquiror, at least four (4) Business Days prior to effecting any Adverse Recommendation Change, of its intent to take such action, specifying the reasons therefor and including a copy of the proposed acquisition agreement and any other documents related to such Superior Proposal (a “Notice of Intended Recommendation Change”), and (z) if requested in writing by Acquiror, the Company has negotiated, and has caused its Subsidiaries and its and their respective Representatives to, after providing any such Notice of Intended Recommendation Change, negotiated with Acquiror in good faith during the four (4) Business Day period after such Notice of Intended Recommendation Change to amend the terms and conditions of this Agreement and the other agreements contemplated hereby such that the Superior Proposal no longer constitutes a Superior Proposal and at the end of such four (4) Business Day period (as it may be extended pursuant to the following proviso) the Company Board again makes the determinations described in clauses (w) and (x) with respect to such Superior Proposal; provided, further, that in the event that there is any material amendment to the terms of any Superior Proposal (provided, that any revision to the amount, form or mix of consideration the Company’s stockholders would receive as a result of such Superior Proposal shall be deemed to be a material amendment), the Company shall notify Acquiror of such material revision in compliance with Section 6.02(c) and the period during which the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees and other Representatives to, negotiate in good faith with Acquiror shall be extended until at least three (3) Business Days after the time the Company provides such notification to Acquiror of any such material revision and the Company Board shall not make an Adverse Recommendation Change prior to the end of any such period as so extended; provided, further, that the Company Board shall have considered in good faith any amendments to this Agreement and the other agreements contemplated hereby offered in writing by Acquiror prior to 8:00 p.m. New York time on the last day of the applicable period(s) described above and shall have determined in good faith (after consultation with its outside legal counsel and financial advisors) that the failure of the Company Board to effect an Adverse Recommendation Change or the Company to terminate this Agreement pursuant to Section 8.01(g) would be inconsistent with the exercise of its fiduciary duties under applicable Law.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board from taking and disclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” communication, as defined in Rule 14d-9(f) promulgated under the Exchange Act and in accordance therewith, pending disclosure of its position thereunder, and the issuance of any such communication shall not, in and of itself, constitute an Adverse Recommendation Change for purposes of this Agreement; provided, however, that no Adverse Recommendation Change may be made unless the Company shall have first complied with its obligations in Section 6.02(e).
(g) Notwithstanding anything to the contrary contained in this Section 6.02 or elsewhere in this Agreement, the Company Board may, at any time prior to the Acceptance Time, make an Adverse Recommendation Change, if: (i) there shall occur or arise after the date of this Agreement a material event, material development or material change in circumstances that was not known by the Company or the Company Board as of the date of this Agreement and does not relate to any Takeover Proposal or the terms and conditions of this Agreement, which event, development or change in circumstance, or any material consequences thereof, becomes known to the Company Board prior to the Acceptance Time (any such material event, material development or material change in circumstances unrelated to a Takeover Proposal being referred to as an “Intervening Event”); provided, however that in no event shall any of the following constitute, or be taken into account in determining the existence of, an Intervening Event: (x) the fact that the Company meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes after the date of this Agreement in the market price or trading volume of the Common Stock, (y) the reasonably foreseeable consequences of the announcement of this Agreement, or (z) any event, fact, circumstance or occurrence or combination or series thereof relating to or involving Acquiror, including declines in the market price or trading volume of Acquiror stock; (ii) no director had knowledge, as of the date of this Agreement, that such Intervening Event was reasonably foreseeable or reasonably likely to occur or arise after the date of this Agreement; (iii) the Company provides Acquiror, at least two (2) Business Days prior to any meeting of the Company Board at which it will consider and determine whether such Intervening Event may require the Company to make an Adverse Recommendation Change, with a written notice specifying the date and time of such meeting, the reasons for holding such meeting and a reasonably detailed description of such Intervening Event; (iv) the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with the exercise of its fiduciary duties under applicable Law; (v) no Adverse Recommendation Change has been made for three (3) Business Days after receipt by Acquiror of a writ
Appears in 1 contract
Sources: Asset Purchase Agreement (Nu Horizons Electronics Corp)