No Solicitations. (a) From the date of this Agreement until the Effective Time, the Company and the Operating Partnership shall not, and shall not authorize or permit any of the Company Subsidiaries, or any of its or their officers, trustees, directors, partners, Affiliates or employees or any investment banker, financial advisor, attorney, accountant, agent or other representative retained by it or any of its Subsidiaries (collectively, the “Company Representatives”), directly or indirectly, to (i) solicit, initiate or knowingly encourage or knowingly facilitate (including by way of furnishing information) any inquiries, proposals or offers or any other efforts or attempts that constitute or that reasonably may be expected to lead to, a Competing Proposal or (ii) initiate or participate in any discussions or negotiations (other than to seek clarifications with respect to the Competing Proposal) regarding, or that reasonably may be expected to lead to, a Competing Proposal or approve or recommend, or publicly propose to approve or recommend, a Competing Proposal or enter into any merger agreement, letter of intent, agreement in principle, share purchase agreement, asset purchase agreement or share exchange agreement, option agreement or other similar agreement relating to a Competing Proposal, or enter into any agreement or agreement in principle requiring the Company or the Operating Partnership to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder or resolve, propose or agree to do any of the foregoing, except as contemplated in Section 6.5(d). Without limiting the foregoing, the Company shall be responsible for any failure on the part of its Company Representatives to comply with this Section 6.5. (b) Any other provision of this Agreement notwithstanding, at any time prior to the receipt of the Company Shareholder Approval, if the Company receives a bona fide written Competing Proposal from a third party (which was not solicited, initiated, encouraged or facilitated in violation of Section 6.5(a)) after the date hereof, the Company (x) may furnish, or cause to be furnished, non-public information with respect to the Company and the Company Subsidiaries to the Person who made such Competing Proposal and to its financing sources and Persons or entities working in concert with it (collectively, a “Third Party”), and (y) may participate in discussions and negotiations regarding such Competing Proposal, if, in the case of either clause (x) or (y): (A) prior to taking such action, the Company enters into a confidentiality agreement with the Person who made such Competing Proposal with respect to such Competing Proposal that is substantially similar (except for the absence of standstill provisions) to the Confidentiality Agreement dated as of July 5, 2007 between the Company and Parent (the “Confidentiality Agreement”), and (B) the Company Board determines in good faith, after consultation with its outside legal counsel and independent financial advisors, that such Competing Proposal is, or is reasonably likely to lead to, a Superior Proposal. (c) The Company and the Operating Partnership shall provide prompt (within twenty-four (24) hours following receipt thereof) oral and written notice to Parent of (i) the receipt of any Competing Proposal, or any material modification or amendment to any Competing Proposal, by the Company, the Operating Partnership, any Company Subsidiary or any Company Representative, (ii) a copy of any documents or agreements provided in contemplation of such Competing Proposal (including any amendments, supplements or modifications thereto but excluding any financing documents or agreements it is not permitted to deliver as a result of confidentiality restrictions), and (iii) the identity of such Person or entity making any such Competing Proposal. The Company and the Operating Partnership shall keep Parent reasonably informed on a current basis, to the extent reasonably practicable, but in any event as promptly as practicable, of the status and material details (including any change to the material terms and conditions) of any such Competing Proposal. The Company and the Operating Partnership shall not, and shall cause each of the Company Subsidiaries not to, enter into any confidentiality agreement with any Person subsequent to the date hereof which prohibits the Company or the Operating Partnership from providing such information to Parent. (d) Subject to this paragraph (d) and to Section 8.1(e), neither the Company Board nor any committee of the Company Board may (i) withdraw, qualify or modify or propose publicly to withdraw, qualify or modify, in each case, in a manner adverse to Parent, the Company Recommendation, or the approval or recommendation of any committee of the Company Board of the Merger or of any other transactions contemplated hereby, (ii) approve, recommend or endorse, or propose publicly to approve, recommend or endorse, a Competing Proposal (any action described in clauses (i) or (ii) being referred to as an “Adverse Recommendation Change”, it being agreed that the taking of any of the actions contemplated by Section 6.5(b), (c) or (f) shall not constitute, or be deemed to constitute, an Adverse Recommendation Change) or (iii) authorize or permit the Company or any of the Company Subsidiaries to enter into any agreement, arrangement or understanding (each, an “Acquisition Agreement”) contemplating, or that could reasonably be expected to lead to, a Competing Proposal (other than a confidentiality agreement in compliance with Section 6.5(b)). Notwithstanding the foregoing, at any time prior to receipt of the Company Shareholder Approval, the Company Board or a committee of the Company Board may (1) make an Adverse Recommendation Change for reasons not related to the receipt of a Competing Proposal if the Company Board determines in good faith after consultation with its independent financial advisors and outside legal counsel, that failure to take such action would be inconsistent with the directors’ duties to the Company or its stockholders under applicable Law or (2) in response to a bona fide written Competing Proposal (which was not solicited, initiated, encouraged or facilitated in violation of Section 6.5(a)) made after the date hereof take an action referred to in clause (i), (ii) or (iii) above and, in the case of clause (iii), terminate this Agreement in accordance with Section 8.1(e) if, after consultation with its independent financial advisors and outside legal counsel, the Company Board determines in good faith that such Competing Proposal constitutes a Superior Proposal (a “Subsequent Determination”); provided, however, that such actions may only be taken at a time that is after (I) the third (3rd) Business Day following Parent’s receipt of written notice from the Company that the Company Board is prepared to take such action, and (II) at the end of such period, the Company Board determines in good faith, after taking into account all amendments or revisions committed to by Parent and after consultation with its independent financial advisors and outside legal counsel, that such Competing Proposal remains a Superior Proposal relative to the Merger, as supplemented by any Counterproposal. Any such written notice shall specify the material terms and conditions of such applicable Competing Proposal, include the most current version of any Acquisition Agreement (including any amendments, supplements or modifications thereto), identify the person making such Competing Proposal and state that the Company Board otherwise intends to make a Subsequent Determination (subject to compliance with this subsection (d)). During any such three Business Day period, Parent shall be entitled to deliver to the Company a counterproposal to such Competing Proposal (a “Counterproposal”). For the avoidance of doubt, the parties hereto acknowledge and agree that any amendment to the financial terms or any other material amendment to any material term of a Competing Proposal which amendment affects the determination of whether the Competing Proposal is a Superior Proposal to any Counterproposal shall be treated as a new Competing Proposal for the purposes of this Section 6.5(d) (requiring a new written notice by the Company and a new three Business Day period). For purposes of clarification, the statement by the Company that it has received a Competing Proposal, that its Board will consider such Competing Proposal and that its Board continues to recommend this Agreement pending such consideration shall not be deemed an Adverse Recommendation Change. (e) Upon execution of this Agreement, the Company, the Operating Partnership and the Company Subsidiaries shall cease immediately and cause to be terminated any and all existing activities, discussions, solicitations or negotiations with any parties conducted heretofore with respect to a Competing Proposal by or on behalf of the Company, the Operating Partnership or any of the Company Representatives. The Company shall use its reasonable best efforts to cause (including by written request) each Person with whom it has executed a confidentiality agreement within the twelve months prior to the date hereof in connection with its consideration of any Competing Proposal to return or destroy all confidential or other non-public information heretofore furnished to such Person by or on behalf of the Company, the Operating Partnership or any of the Company Representatives. (f) Any other provision of this Agreement notwithstanding, the Company Board may at any time take and disclose to its holders of Company Common Shares a position contemplated by Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act, may issue a stop, look and listen announcement and may make any disclosure required by Rule 14a-9 promulgated under the Exchange Act or Item 1012(a) of Regulation M-A; provided, however, that neither the Company nor the Company Board shall be permitted to recommend a Competing Proposal which is not a Superior Proposal; provided, further, that, for the avoidance of doubt, any public statements by the Company commenting on the merits of a Competing Proposal shall be an Adverse Recommendation Change other than (A) a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) of the Exchange Act, (B) an express rejection of a Competing Proposal or (C) an express reaffirmation of the Company Recommendation to its stockholders in favor of the Mergers. (g) The Company shall not take any action to exempt any Person (other than Parent or any of its Affiliates and other than in connection with an Acquisition Agreement following a Subsequent Determination) from the restrictions on “control share acquisitions” contained in the Maryland Control Share Acquisition Act, as amended (or any similar provisions of the MRL) or otherwise cause such restrictions not to apply.
Appears in 3 contracts
Sources: Merger Agreement (American Financial Realty Trust), Merger Agreement (Gramercy Capital Corp), Stockholder Voting Agreement (Morgan Stanley)
No Solicitations. (a) From and after the date of this Agreement until the Effective Timehereof, the Company and the Operating Partnership shall KCPL will not, and shall will not authorize or permit any of the Company Subsidiaries, or any of its or their officers, trustees, directors, partners, Affiliates or employees or any investment banker, financial advisor, attorney, accountant, agent or other representative retained by it or any of its Subsidiaries (collectively, the “Company Representatives”)Representatives to, directly or indirectly, to (i) solicit, initiate or knowingly encourage or knowingly facilitate (including by way of furnishing information) any inquiries, proposals or offers or take any other efforts action to facilitate knowingly any inquiries or attempts that constitute the making of any proposal which constitutes or that may reasonably may be expected to lead toto an Acquisition Proposal (as defined herein) from any person, a Competing Proposal or (ii) initiate or participate engage in any discussions discussion or negotiations (other than to seek clarifications with respect to the Competing relating thereto or accept any Acquisition Proposal) regarding; provided, or however, that reasonably may be expected to lead to, a Competing Proposal or approve or recommend, or publicly propose to approve or recommend, a Competing Proposal or enter into notwithstanding any merger agreement, letter of intent, agreement in principle, share purchase agreement, asset purchase agreement or share exchange agreement, option agreement or other similar agreement relating to a Competing Proposal, or enter into any agreement or agreement in principle requiring the Company or the Operating Partnership to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder or resolve, propose or agree to do any of the foregoing, except as contemplated in Section 6.5(d). Without limiting the foregoing, the Company shall be responsible for any failure on the part of its Company Representatives to comply with this Section 6.5.
(b) Any other provision of this Agreement notwithstandinghereof, KCPL may (i) at any time prior to the receipt of the Company Shareholder Approvaltime KCPL's shareholders shall have voted to approve this Agreement, if the Company receives a bona fide written Competing Proposal from engage in discussions or negotiations with a third party who (which was not solicitedwithout any solicitation, initiatedinitiation, encouraged encouragement, discussion or facilitated in violation of Section 6.5(a)) negotiation, directly or indirectly, by or with KCPL or its Representatives after the date hereof) seeks to initiate such discussions or negotiations and may furnish such third party information concerning KCPL and its business, properties and assets if, and only to the Company extent that, (A) (x) may furnish, or cause the third party has first made an Acquisition Proposal that is financially superior to the transactions contemplated herein and has demonstrated that financing for the Acquisition Proposal is reasonably likely to be furnished, non-public information obtained (as determined in good faith by KCPL's Board of Directors after consultation with respect to the Company and the Company Subsidiaries to the Person who made such Competing Proposal and to its financing sources and Persons or entities working in concert with it (collectively, a “Third Party”), financial advisors) and (y) may participate in discussions and negotiations regarding such Competing Proposal, if, in the case KCPL's Board of either clause (x) or (y): (A) prior to taking such action, the Company enters into a confidentiality agreement with the Person who made such Competing Proposal with respect to such Competing Proposal that is substantially similar (except for the absence of standstill provisions) to the Confidentiality Agreement dated as of July 5, 2007 between the Company and Parent (the “Confidentiality Agreement”), and (B) the Company Board determines Directors shall conclude in good faith, after consultation considering applicable provisions of state law, on the basis of oral or written advice of outside counsel that such action is necessary for the KCPL Board of Directors to act in a manner consistent with its outside legal counsel fiduciary duties under applicable law and independent financial advisors(B) prior to furnishing such information to or entering into discussions or negotiations with such person or entity, that such Competing Proposal is, or is reasonably likely to lead to, a Superior Proposal.
KCPL (cx) The Company and the Operating Partnership shall provide provides prompt (within twenty-four (24) hours following receipt thereof) oral and written notice to Parent of Western Resources to the effect that it is planning to furnish information to or enter into discussions or negotiations with such person or entity and (iy) receives from such person or entity an executed confidentiality agreement in reasonably customary form on terms not in the receipt of any Competing Proposal, aggregate materially more favorable to such person or any material modification or amendment to any Competing Proposal, by entity than the Company, terms contained in the Operating Partnership, any Company Subsidiary or any Company RepresentativeConfidentiality Agreement, (ii) comply with Rule 14e-2 promulgated under the Exchange Act with regard to a copy of any documents tender or agreements provided in contemplation of such Competing Proposal (including any amendmentsexchange offer, supplements or modifications thereto but excluding any financing documents or agreements it is not permitted to deliver as a result of confidentiality restrictions), and and/or (iii) the identity of such Person or entity making any such Competing Proposal. The Company and the Operating Partnership shall keep Parent reasonably informed on accept an Acquisition Proposal from a current basisthird party, to the extent reasonably practicable, but in any event as promptly as practicable, of the status and material details (including any change to the material terms and conditions) of any such Competing Proposal. The Company and the Operating Partnership shall not, and shall cause each of the Company Subsidiaries not to, enter into any confidentiality agreement with any Person subsequent to the date hereof which prohibits the Company or the Operating Partnership from providing such information to Parent.
(d) Subject to provided KCPL first terminates this paragraph (d) and Agreement pursuant to Section 8.1(e), neither the Company Board nor any committee of the Company Board may (i) withdraw, qualify or modify or propose publicly to withdraw, qualify or modify, in each case, in a manner adverse to Parent, the Company Recommendation, or the approval or recommendation of any committee of the Company Board of the Merger or of any other transactions contemplated hereby, (ii) approve, recommend or endorse, or propose publicly to approve, recommend or endorse, a Competing Proposal (any action described in clauses (i) or (ii) being referred to as an “Adverse Recommendation Change”, it being agreed that the taking of any of the actions contemplated by Section 6.5(b), (c) or (f) shall not constitute, or be deemed to constitute, an Adverse Recommendation Change) or (iii) authorize or permit the Company or any of the Company Subsidiaries to enter into any agreement, arrangement or understanding (each, an “Acquisition Agreement”) contemplating, or that could reasonably be expected to lead to, a Competing Proposal (other than a confidentiality agreement in compliance with Section 6.5(b)11.1(e). Notwithstanding the foregoingKCPL shall immediately cease and terminate any existing solicitation, at any time prior to receipt of the Company Shareholder Approvalinitiation, the Company Board encouragement, activity, discussion or a committee of the Company Board may (1) make an Adverse Recommendation Change for reasons not related to the receipt of a Competing Proposal if the Company Board determines in good faith after consultation with its independent financial advisors and outside legal counsel, that failure to take such action would be inconsistent with the directors’ duties to the Company or its stockholders under applicable Law or (2) in response to a bona fide written Competing Proposal (which was not solicited, initiated, encouraged or facilitated in violation of Section 6.5(a)) made after the date hereof take an action referred to in clause (i), (ii) or (iii) above and, in the case of clause (iii), terminate this Agreement in accordance with Section 8.1(e) if, after consultation with its independent financial advisors and outside legal counsel, the Company Board determines in good faith that such Competing Proposal constitutes a Superior Proposal (a “Subsequent Determination”); provided, however, that such actions may only be taken at a time that is after (I) the third (3rd) Business Day following Parent’s receipt of written notice from the Company that the Company Board is prepared to take such action, and (II) at the end of such period, the Company Board determines in good faith, after taking into account all amendments or revisions committed to by Parent and after consultation with its independent financial advisors and outside legal counsel, that such Competing Proposal remains a Superior Proposal relative to the Merger, as supplemented by any Counterproposal. Any such written notice shall specify the material terms and conditions of such applicable Competing Proposal, include the most current version of any Acquisition Agreement (including any amendments, supplements or modifications thereto), identify the person making such Competing Proposal and state that the Company Board otherwise intends to make a Subsequent Determination (subject to compliance with this subsection (d)). During any such three Business Day period, Parent shall be entitled to deliver to the Company a counterproposal to such Competing Proposal (a “Counterproposal”). For the avoidance of doubt, the parties hereto acknowledge and agree that any amendment to the financial terms or any other material amendment to any material term of a Competing Proposal which amendment affects the determination of whether the Competing Proposal is a Superior Proposal to any Counterproposal shall be treated as a new Competing Proposal for the purposes of this Section 6.5(d) (requiring a new written notice by the Company and a new three Business Day period). For purposes of clarification, the statement by the Company that it has received a Competing Proposal, that its Board will consider such Competing Proposal and that its Board continues to recommend this Agreement pending such consideration shall not be deemed an Adverse Recommendation Change.
(e) Upon execution of this Agreement, the Company, the Operating Partnership and the Company Subsidiaries shall cease immediately and cause to be terminated any and all existing activities, discussions, solicitations or negotiations negotiation with any parties conducted heretofore by KCPL or its Representatives with respect to a Competing Proposal by the foregoing. KCPL shall notify Western Resources orally and in writing of any such inquiries, offers or on behalf proposals (including, without limitation, the terms and conditions of any such proposal and the identity of the Companyperson making it), the Operating Partnership or any within 24 hours of the Company Representatives. The Company receipt thereof, shall use its reasonable best efforts to cause (including by written request) each Person with whom it has executed a confidentiality agreement within keep Western Resources informed of the twelve months prior to the date hereof in connection with its consideration status and details of any Competing Proposal to return such inquiry, offer or destroy all confidential or other non-public information heretofore furnished to such Person by or on behalf of the Company, the Operating Partnership or any of the Company Representatives.
(f) Any other provision of this Agreement notwithstanding, the Company Board may at any time take and disclose to its holders of Company Common Shares a position contemplated by Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act, may issue a stop, look and listen announcement and may make any disclosure required by Rule 14a-9 promulgated under the Exchange Act or Item 1012(a) of Regulation M-A; provided, however, that neither the Company nor the Company Board shall be permitted to recommend a Competing Proposal which is not a Superior Proposal; provided, further, that, for the avoidance of doubt, any public statements by the Company commenting on the merits of a Competing Proposal shall be an Adverse Recommendation Change other than (A) a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) of the Exchange Act, (B) an express rejection of a Competing Proposal or (C) an express reaffirmation of the Company Recommendation to its stockholders in favor of the Mergers.
(g) The Company shall not take any action to exempt any Person (other than Parent or any of its Affiliates and other than in connection with an Acquisition Agreement following a Subsequent Determination) from the restrictions on “control share acquisitions” contained in the Maryland Control Share Acquisition Act, as amended (or any similar provisions of the MRL) or otherwise cause such restrictions not to apply.proposal,
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Kansas City Power & Light Co), Agreement and Plan of Merger (Western Resources Inc /Ks)
No Solicitations. (a) From the date of this Agreement until Prior to the Effective Time, the Company and the Operating Partnership shall not, and shall not authorize or permit any of the Company Subsidiaries, or agrees (a) that neither it nor any of its affiliates or their officersSubsidiaries shall, trusteesand it shall cause its Representatives not to, directorsinitiate, partners, Affiliates solicit or employees or any investment banker, financial advisor, attorney, accountant, agent or other representative retained by it or any of its Subsidiaries (collectively, the “Company Representatives”), directly or indirectly, to (i) solicit, initiate or knowingly encourage or knowingly facilitate (including by way of furnishing information), directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) with respect to a merger, consolidation or other business combination including the Company or any of its Significant Subsidiaries or any acquisition or similar transaction (including, without limitation, a tender or exchange offer) involving the purchase of (i) all or any significant portion of the assets of the Company and its Subsidiaries taken as a whole, (ii) 15% or more of the outstanding shares of Company Common Stock or (iii) 15% of the outstanding shares of the capital stock of any Significant Subsidiary of the Company (any such proposal or offer being hereinafter referred to as an "Alternative Proposal"), or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person or group relating to an Alternative Proposal (excluding the transactions contemplated by this Agreement), or otherwise facilitate any effort or attempt to make or implement an Alternative Proposal; (b) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties with respect to any of the foregoing, and it will take the necessary steps to inform such parties of its obligations under this Section; and (c) that it will notify Parent immediately if any such inquiries, proposals or offers are received by, any such information is requested from, or any other efforts such negotiations or attempts discussions are sought to be initiated or continued with, it or any of such persons; provided, however, that constitute nothing contained in this Section 5.02 shall prohibit the Board of Directors of the Company from (i) furnishing information to (but only pursuant to a confidentiality agreement in customary form and having terms and conditions substantially comparable to the Confidentiality Agreement) or that reasonably may be expected to lead to, a Competing Proposal or (ii) initiate or participate in any entering into discussions or negotiations (other than to seek clarifications with respect to the Competing Proposal) regarding, any person or group that reasonably may be expected to lead to, a Competing Proposal or approve or recommend, or publicly propose to approve or recommend, a Competing Proposal or enter into any merger agreement, letter of intent, agreement in principle, share purchase agreement, asset purchase agreement or share exchange agreement, option agreement or other similar agreement relating to a Competing Proposal, or enter into any agreement or agreement in principle requiring the Company or the Operating Partnership to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder or resolve, propose or agree to do any of the foregoing, except as contemplated in Section 6.5(d). Without limiting the foregoing, the Company shall be responsible for any failure on the part of its Company Representatives to comply with this Section 6.5.
(b) Any other provision of this Agreement notwithstanding, at any time prior to the receipt of the Company Shareholder Approval, if the Company receives a makes an unsolicited bona fide written Competing Proposal from a third party (which was not solicited, initiated, encouraged or facilitated in violation of Section 6.5(a)) after the date hereof, the Company (x) may furnish, or cause to be furnished, non-public information with respect to the Company and the Company Subsidiaries to the Person who made such Competing Proposal and to its financing sources and Persons or entities working in concert with it (collectively, a “Third Party”), and (y) may participate in discussions and negotiations regarding such Competing Alternative Proposal, if, in and only to the case of either clause (x) or (y): extent that, (A) prior to taking such action, the Company enters into a confidentiality agreement with the Person who made such Competing Proposal with respect to such Competing Proposal that is substantially similar (except for the absence Board of standstill provisions) to the Confidentiality Agreement dated as Directors of July 5, 2007 between the Company and Parent (the “Confidentiality Agreement”), and (B) the Company Board determines in good faith, after consultation with its outside legal counsel and independent financial advisors, that such Competing Proposal is, or is reasonably likely to lead to, a Superior Proposal.
(c) The Company and the Operating Partnership shall provide prompt (within twenty-four (24) hours following receipt thereof) oral and written notice to Parent of (i) the receipt of any Competing Proposal, or any material modification or amendment to any Competing Proposal, by the Company, based upon the Operating Partnership, any Company Subsidiary or any Company Representative, written opinion of outside counsel (ii) a copy of any documents or agreements which shall be provided in contemplation of such Competing Proposal (including any amendments, supplements or modifications thereto but excluding any financing documents or agreements it is not permitted promptly to deliver as a result of confidentiality restrictionsParent), and (iii) the identity of such Person or entity making any such Competing Proposal. The Company and the Operating Partnership shall keep Parent reasonably informed on a current basis, to the extent reasonably practicable, but in any event as promptly as practicable, of the status and material details (including any change to the material terms and conditions) of any such Competing Proposal. The Company and the Operating Partnership shall not, and shall cause each of the Company Subsidiaries not to, enter into any confidentiality agreement with any Person subsequent to the date hereof which prohibits the Company or the Operating Partnership from providing such information to Parent.
(d) Subject to this paragraph (d) and to Section 8.1(e), neither the Company Board nor any committee of the Company Board may (i) withdraw, qualify or modify or propose publicly to withdraw, qualify or modify, in each case, in a manner adverse to Parent, the Company Recommendation, or the approval or recommendation of any committee of the Company Board of the Merger or of any other transactions contemplated hereby, (ii) approve, recommend or endorse, or propose publicly to approve, recommend or endorse, a Competing Proposal (any action described in clauses (i) or (ii) being referred to as an “Adverse Recommendation Change”, it being agreed that the taking of any of the actions contemplated by Section 6.5(b), (c) or (f) shall not constitute, or be deemed to constitute, an Adverse Recommendation Change) or (iii) authorize or permit the Company or any of the Company Subsidiaries to enter into any agreement, arrangement or understanding (each, an “Acquisition Agreement”) contemplating, or that could reasonably be expected to lead to, a Competing Proposal (other than a confidentiality agreement in compliance with Section 6.5(b)). Notwithstanding the foregoing, at any time prior to receipt of the Company Shareholder Approval, the Company Board or a committee of the Company Board may (1) make an Adverse Recommendation Change for reasons not related to the receipt of a Competing Proposal if the Company Board determines in good faith after consultation with its independent financial advisors and outside legal counsel, that failure to take such action would be inconsistent with the directors’ duties to the Company or its stockholders under applicable Law or (2) in response to a bona fide written Competing Proposal (which was not solicited, initiated, encouraged or facilitated in violation of Section 6.5(a)) made after the date hereof take an action referred to in clause (i), (ii) or (iii) above and, in the case of clause (iii), terminate this Agreement in accordance with Section 8.1(e) if, after consultation with its independent financial advisors and outside legal counsel, the Company Board determines in good faith that such Competing Proposal constitutes a Superior Proposal action is required for the Board of Directors to comply with its fiduciary duties to stockholders imposed by law, (a “Subsequent Determination”); providedB) prior to furnishing such information to, howeveror entering into discussions or negotiations with, that such actions may only be taken at a time that is after (I) person or group, the third (3rd) Business Day following Parent’s receipt of Company provides written notice from to Parent to the Company effect that the Company Board it is prepared to take furnishing information to, or entering into discussions or negotiations with, such actionperson or group, and (IIC) at the end Company keeps Parent informed of the status and all material information including the identity of such period, the Company Board determines in good faith, after taking into account all amendments person or revisions committed to by Parent and after consultation with its independent financial advisors and outside legal counsel, that such Competing Proposal remains a Superior Proposal relative to the Merger, as supplemented by any Counterproposal. Any such written notice shall specify the material terms and conditions of such applicable Competing Proposal, include the most current version of any Acquisition Agreement (including any amendments, supplements or modifications thereto), identify the person making such Competing Proposal and state that the Company Board otherwise intends to make a Subsequent Determination (subject to compliance with this subsection (d)). During any such three Business Day period, Parent shall be entitled to deliver to the Company a counterproposal to such Competing Proposal (a “Counterproposal”). For the avoidance of doubt, the parties hereto acknowledge and agree that any amendment to the financial terms or any other material amendment to any material term of a Competing Proposal which amendment affects the determination of whether the Competing Proposal is a Superior Proposal to any Counterproposal shall be treated as a new Competing Proposal for the purposes of this Section 6.5(d) (requiring a new written notice by the Company and a new three Business Day period). For purposes of clarification, the statement by the Company that it has received a Competing Proposal, that its Board will consider such Competing Proposal and that its Board continues to recommend this Agreement pending such consideration shall not be deemed an Adverse Recommendation Change.
(e) Upon execution of this Agreement, the Company, the Operating Partnership and the Company Subsidiaries shall cease immediately and cause to be terminated any and all existing activities, discussions, solicitations or negotiations with any parties conducted heretofore group with respect to a Competing Proposal by any such discussions or on behalf of the Company, the Operating Partnership or any of the Company Representatives. The Company shall use its reasonable best efforts to cause (including by written request) each Person with whom it has executed a confidentiality agreement within the twelve months prior negotiations to the date hereof in connection with its consideration extent such disclosure would not constitute a violation of any Competing Proposal applicable law; and (ii) to return or destroy all confidential or other non-public information heretofore furnished to such Person by or on behalf of the Companyextent required, the Operating Partnership or any of the Company Representatives.
(f) Any other provision of this Agreement notwithstanding, the Company Board may at any time take and disclose to its holders of Company Common Shares a position contemplated by complying with Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act, may issue a stop, look and listen announcement and may make any disclosure required by Rule 14a-9 14e-2 promulgated under the Exchange Act or Item 1012(a) of Regulation M-A; provided, however, that neither the Company nor the Company Board shall be permitted with regard to recommend a Competing Proposal which is not a Superior an Alternative Proposal; provided, further, that, for the avoidance of doubt, any public statements by the Company commenting on the merits of a Competing Proposal shall be an Adverse Recommendation Change other than (A) a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) of the Exchange Act, (B) an express rejection of a Competing Proposal or (C) an express reaffirmation of the Company Recommendation to its stockholders in favor of the Mergers.
(g) The Company shall not take any action to exempt any Person (other than Parent or any of its Affiliates and other than in connection with an Acquisition Agreement following a Subsequent Determination) from the restrictions on “control share acquisitions” contained in the Maryland Control Share Acquisition Act, as amended (or any similar provisions of the MRL) or otherwise cause such restrictions not to apply.
Appears in 2 contracts
Sources: Merger Agreement (HFS Inc), Merger Agreement (PHH Corp)
No Solicitations. (a) From and after the date of this Agreement until the Effective Timehereof, the Company and the Operating Partnership Seller shall not, and shall not authorize or permit any of direct and use commercially reasonable efforts to cause the Company Subsidiaries, or any Conning, the Conning Subsidiaries, RGA and the RGA Subsidiaries, and each of its or their respective officers, trustees, directors, partnersemployees, Affiliates or employees or any investment bankeragents, financial advisor, attorney, accountant, agent advisors or other representative retained by it or any of its Subsidiaries representatives (collectivelyeach, the “Company Representatives”)a "Representative") not to, directly or indirectly, to (i) solicit, initiate or knowingly encourage or knowingly facilitate the submission of any Proposal (including by way of furnishing information) any inquiriesas defined below), proposals or offers or any other efforts or attempts that constitute or that reasonably may be expected to lead to, a Competing Proposal or (ii) initiate or participate in any discussions or 41 42 negotiations (other than to seek clarifications with respect to the Competing Proposal) regarding, or that reasonably may be expected furnish to lead to, a Competing Proposal or approve or recommend, or publicly propose to approve or recommend, a Competing Proposal or enter into any merger agreement, letter of intent, agreement in principle, share purchase agreement, asset purchase agreement or share exchange agreement, option agreement or other similar agreement relating to a Competing Proposal, or enter into Person any agreement or agreement in principle requiring the Company or the Operating Partnership to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder or resolve, propose or agree to do any of the foregoing, except as contemplated in Section 6.5(d). Without limiting the foregoing, the Company shall be responsible for any failure on the part of its Company Representatives to comply with this Section 6.5.
(b) Any other provision of this Agreement notwithstanding, at any time prior to the receipt of the Company Shareholder Approval, if the Company receives a bona fide written Competing Proposal from a third party (which was not solicited, initiated, encouraged or facilitated in violation of Section 6.5(a)) after the date hereof, the Company (x) may furnish, or cause to be furnished, non-public information with respect to, any Proposal or Alternative Transaction (as defined below), other than with Buyer; provided, however, that to the Company and extent required by the Company Subsidiaries fiduciary obligations of Seller's Board of Directors, as determined in good faith by Seller's Board of Directors following consultation with outside counsel, or at the direction of the Department or the Reorganization Proceeding, if Seller receives an unsolicited proposal with respect to the Person who made such Competing Proposal and to its financing sources and Persons or entities working in concert with it a Control Transaction (collectively, a “Third Party”as defined below), and (y) Seller may participate in such discussions and or negotiations regarding such Competing Proposal, if, in the case of either clause or furnish (x) or (y): (A) prior pursuant to taking such action, the Company enters into a confidentiality agreement with the Person who made in customary form) such Competing information in response to such Proposal or, subject to Section 11.3, authorize, engage in or enter into any agreement with respect to such Competing Control Transaction. Seller will advise Buyer of, and communicate to Buyer the terms of, any Proposal that is substantially similar (except for Seller, the absence Company, any of standstill provisions) to the Confidentiality Agreement dated as of July 5, 2007 between the Company and Parent (the “Confidentiality Agreement”), and (B) the Company Board determines in good faith, after consultation with its outside legal counsel and independent financial advisors, that such Competing Proposal is, or is reasonably likely to lead to, a Superior Proposal.
(c) The Company and the Operating Partnership shall provide prompt (within twenty-four (24) hours following receipt thereof) oral and written notice to Parent of (i) the receipt of any Competing Proposal, Subsidiaries or any material modification or amendment to any Competing Proposalof their respective Representatives, or, if known by the Company, the Operating PartnershipRGA, any Company Subsidiary of the RGA Subsidiaries, Conning or any Company Representativeof the Conning Subsidiaries, may receive unless the terms of such Proposal prohibit such disclosure, or otherwise directed by the Director.
(b) For purposes of this Agreement: (i) "Proposal" means any written proposal or offer from any Person relating to an Alternative Transaction; (ii) a copy "Alternative Transaction" means any (A) direct or indirect acquisition or purchase of any documents or agreements provided in contemplation of such Competing Proposal (including any amendments, supplements or modifications thereto but excluding any financing documents or agreements it is not permitted to deliver as a result of confidentiality restrictions), and (iii) the identity of such Person or entity making any such Competing Proposal. The Company and the Operating Partnership shall keep Parent reasonably informed on a current basis, to the extent reasonably practicable, but in any event as promptly as practicable, of the status and material details (including any change to the material terms and conditions) of any such Competing Proposal. The Company and the Operating Partnership shall not, and shall cause each of the Company Subsidiaries not to, enter into any confidentiality agreement with any Person subsequent to the date hereof which prohibits the Company or the Operating Partnership from providing such information to Parent.
(d) Subject to this paragraph (d) and to Section 8.1(e), neither the Company Board nor any committee of the Company Board may (i) withdraw, qualify or modify or propose publicly to withdraw, qualify or modify, in each case, in a manner adverse to Parent, the Company Recommendationequity securities of, or the approval or recommendation of any committee of the Company Board of the Merger or of any other transactions contemplated herebyequity interest in, (ii) approve, recommend or endorse, or propose publicly to approve, recommend or endorse, a Competing Proposal (any action described in clauses (i) or (ii) being referred to as an “Adverse Recommendation Change”, it being agreed that the taking of any of the actions contemplated by Section 6.5(b), (c) or (f) shall not constitute, or be deemed to constitute, an Adverse Recommendation Change) or (iii) authorize or permit the Company or any of the Company Subsidiaries that if consummated would result in any Person beneficially owning (or having the right to enter into acquire) 10% or more of any agreement, arrangement or understanding (each, an “Acquisition Agreement”) contemplatingclass of equity securities of, or that could the equity interest in the Company or any of the Subsidiaries or which would require approval under any federal, state or local law, rule, regulation or order governing or relating to the current or contemplated operations of the Company or any of the Subsidiaries, (B) merger, consolidation, business combination, sale of a material portion of the assets (including, without limitation, by means of any reinsurance or renewal rights transaction), liquidation, dissolution or similar transaction involving the Company or any of the Subsidiaries or (C) other transaction the consummation of which would reasonably be expected to lead toimpede, interfere with, prevent or materially delay the transactions with Buyer contemplated by this Agreement or which would reasonably be expected to dilute the benefits of such transactions to Buyer; and (iii) "Control Transaction" means any transaction that involves a Competing Proposal (other than a confidentiality agreement in compliance with Section 6.5(b)). Notwithstanding the foregoing, at any time prior to receipt of the Company Shareholder Approval, the Company Board A) merger or a committee of the Company Board may (1) make an Adverse Recommendation Change for reasons not related to the receipt of a Competing Proposal if the Company Board determines in good faith after consultation with its independent financial advisors and outside legal counsel, that failure to take such action would be inconsistent with the directors’ duties to consolidation or similar business combination involving the Company or its stockholders under applicable Law or (2) in response to a bona fide written Competing Proposal (which was not solicited, initiated, encouraged or facilitated in violation of Section 6.5(a)) made after the date hereof take an action referred to in clause (i), (ii) or (iii) above and, in the case of clause (iii), terminate this Agreement in accordance with Section 8.1(e) if, after consultation with its independent financial advisors and outside legal counsel, the Company Board determines in good faith that such Competing Proposal constitutes a Superior Proposal (a “Subsequent Determination”); provided, however, that such actions may only be taken at a time that is after (I) the third (3rd) Business Day following Parent’s receipt of written notice from the Company that the Company Board is prepared to take such action, and (II) at the end of such period, the Company Board determines in good faith, after taking into account all amendments or revisions committed to by Parent and after consultation with its independent financial advisors and outside legal counsel, that such Competing Proposal remains a Superior Proposal relative to the Merger, as supplemented by any Counterproposal. Any such written notice shall specify the material terms and conditions of such applicable Competing Proposal, include the most current version of any Acquisition Agreement (including any amendments, supplements or modifications thereto), identify the person making such Competing Proposal and state that the Company Board otherwise intends to make a Subsequent Determination (subject to compliance with this subsection (d)). During any such three Business Day period, Parent shall be entitled to deliver to the Company a counterproposal to such Competing Proposal (a “Counterproposal”). For the avoidance of doubt, the parties hereto acknowledge and agree that any amendment to the financial terms or any other material amendment to any material term of a Competing Proposal which amendment affects the determination of whether the Competing Proposal is a Superior Proposal to any Counterproposal shall be treated as a new Competing Proposal for the purposes of this Section 6.5(d) (requiring a new written notice by the Company and a new three Business Day period). For purposes of clarification, the statement by the Company that it has received a Competing Proposal, that its Board will consider such Competing Proposal and that its Board continues to recommend this Agreement pending such consideration shall not be deemed an Adverse Recommendation Change.
(e) Upon execution of this Agreement, the Company, the Operating Partnership and the Company Subsidiaries shall cease immediately and cause to be terminated any and all existing activities, discussions, solicitations or negotiations with any parties conducted heretofore with respect to a Competing Proposal by or on behalf significant Subsidiary of the Company, (B) sale of all or substantially all of the Operating Partnership or any assets of the Company Representatives. The Company shall use its reasonable best efforts to cause (including by written request) each Person with whom it has executed a confidentiality agreement within the twelve months prior to the date hereof in connection with its consideration of any Competing Proposal to return or destroy all confidential or other non-public information heretofore furnished to such Person by or on behalf of the Company, the Operating Partnership or any of the Company Representatives.
(f) Any other provision of this Agreement notwithstanding, the Company Board may at any time take and disclose to its holders of Company Common Shares a position contemplated by Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act, may issue a stop, look and listen announcement and may make any disclosure required by Rule 14a-9 promulgated under the Exchange Act or Item 1012(a) of Regulation M-A; provided, however, that neither the Company nor the Company Board shall be permitted to recommend a Competing Proposal which is not a Superior Proposal; provided, further, that, for the avoidance of doubt, any public statements by the Company commenting on the merits of a Competing Proposal shall be an Adverse Recommendation Change other than (A) a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) of the Exchange Act, (B) an express rejection of a Competing Proposal or (C) an express reaffirmation sale or issuance of the Shares or other equity securities of the Company Recommendation to its stockholders in favor a Person which, following the completion of such sale or issuance, will beneficially own the Shares or other equity securities of the Mergers.
(g) The Company shall not take any action to exempt any Person (other than Parent or any of its Affiliates and other than in connection with an Acquisition Agreement following representing a Subsequent Determination) from the restrictions on “control share acquisitions” contained in the Maryland Control Share Acquisition Act, as amended (or any similar provisions majority of the MRL) or otherwise cause such restrictions not voting power with respect to applythe election of the directors of the Company.
Appears in 1 contract
Sources: Stock Purchase Agreement (Metropolitan Life Insurance Co/Ny)
No Solicitations. (a) From and after the date hereof, Seller, without the ---------------- prior written consent of this Agreement until the Effective TimeBuyer, the Company and the Operating Partnership shall will not, and shall will not authorize or permit any of the Company Subsidiaries, its or any of its or their Subsidiaries' officers, trusteesemployees, directors, partners, Affiliates or employees or any investment banker, financial advisor, attorney, accountant, agent stockholders or other representative retained by it or any of its Subsidiaries (collectively, the “Company Representatives”)representatives to, directly or indirectly, to (i) solicit, initiate or knowingly encourage or knowingly facilitate (including by way of furnishing information) any inquiries, proposals or offers or take any other efforts action to facilitate knowingly any inquiries or attempts the making of any proposal that constitute constitutes or that could be reasonably may be expected to lead toto an Alternative Proposal from any Person, a Competing Proposal or (ii) initiate or participate engage in any discussions or negotiations (other than to seek clarifications with respect to the Competing Proposal) regarding, relating thereto or that reasonably may be expected to lead to, a Competing accept any Alternative Proposal or approve make or recommendauthorize any statement, recommendation or publicly propose to approve or recommendsolicitation in support of any Alternative Proposal; provided, a Competing Proposal or enter into -------- however, that notwithstanding any merger agreement, letter of intent, agreement in principle, share purchase agreement, asset purchase agreement or share exchange agreement, option agreement or other similar agreement relating to a Competing Proposal, or enter into any agreement or agreement in principle requiring the Company or the Operating Partnership to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder or resolve, propose or agree to do any of the foregoing, except as contemplated in Section 6.5(d). Without limiting the foregoing, the Company shall be responsible for any failure on the part of its Company Representatives to comply with this Section 6.5.
(b) Any other provision of this Agreement notwithstandinghereof, Seller may (a) at any ------- time prior to the receipt of ▇▇▇▇ ▇▇▇▇▇▇'▇ stockholders shall have voted to approve this Agreement and the Company Shareholder Approvaltransactions contemplated hereby, if the Company receives a bona fide written Competing Proposal from engage in discussions or negotiations with a third party who (which was not solicitedwithout any solicitation, initiatedinitiation, encouraged encouragement, discussion or facilitated in violation negotiation, directly or indirectly, by or with Seller or any of Section 6.5(a)its Subsidiaries or any officer, employee, director, stockholder or other representative of Seller or any of its Subsidiaries after the date hereof) seeks to initiate such discussions or negotiations and may furnish such third party information concerning the Entertainment Companies if, and only to the extent that, (i) (x) such third party has first made, after the date hereof, an Alternative Proposal in writing the Company (x) may furnish, or cause terms of which reflect a superior transaction than the transactions contemplated by this Agreement and has demonstrated that the funds necessary for the Alternative Proposal are reasonably likely to be furnishedavailable (as determined in good faith in each case by Seller's Board of Directors after consultation with its financial advisors) and (y) Seller's Board of Directors shall have determined in good faith, non-public on the basis of advice of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ or other outside counsel of similar stature, that such action is necessary for the Board of Directors to comply with its fiduciary duties to stockholders under Applicable Law and (ii) prior to furnishing information to or entering into discussions or negotiations with such Person, Seller receives from such Person an executed confidentiality agreement in reasonably customary form and containing terms not in the aggregate materially more favorable to such Person than the terms contained in Section 6.02 or in any confidentiality agreement previously executed by Seller and Buyer or any of its Subsidiaries; or (b) comply with Rule 14e-2 promulgated under the Securities and Exchange Act of 1934 with regard to a tender or exchange offer. Seller shall immediately cease and terminate any existing solicitation, initiation, engagement, activity, discussion or negotiation with any Persons conducted heretofore by Seller or any officer, employee, director, stockholder or other representative of Seller or any of its Subsidiaries with respect to the Company foregoing. Seller shall not 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 the Company Subsidiaries to the another Person who made such Competing Proposal and has made, or who may reasonably be considered likely to its financing sources and Persons or entities working in concert with it (collectivelymake, a “Third Party”), and (y) may participate in discussions and negotiations regarding such Competing an Alternative Proposal, if, in the case unless its Board of either clause (x) or (y): (A) prior to taking such action, the Company enters into a confidentiality agreement with the Person who made such Competing Proposal with respect to such Competing Proposal that is substantially similar (except for the absence of standstill provisions) to the Confidentiality Agreement dated as of July 5, 2007 between the Company and Parent (the “Confidentiality Agreement”), and (B) the Company Board determines Directors shall determine in good faith, after consultation with its on the basis of the advice of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ or other outside legal counsel and independent financial advisorsof similar stature, that such Competing Proposal is, or action is reasonably likely necessary for the Board of Directors to lead to, a Superior Proposal.
(c) The Company comply with its fiduciary duties to stockholders under Applicable Law. Seller shall notify Buyer orally and the Operating Partnership shall provide prompt (within twenty-four (24) hours following receipt thereof) oral and written notice to Parent of (i) the receipt in writing of any Competing Proposalsuch inquiries (that are or appear to be serious or legitimate), offers or proposals (including the terms and conditions of any material modification such offer or amendment to any Competing Proposal, by the Companyproposal, the Operating Partnership, any Company Subsidiary or any Company Representative, (ii) identity of the Person making it and a copy of any documents or agreements provided in contemplation of such Competing Proposal (including any amendments, supplements or modifications thereto but excluding any financing documents or agreements it is not permitted to deliver as a result of confidentiality restrictionswritten Alternative Proposal), as promptly as practicable and (iii) the identity of such Person or entity making any such Competing Proposal. The Company and the Operating Partnership shall keep Parent reasonably informed on a current basis, to the extent reasonably practicable, but in any event as promptly as practicablewithin forty- eight (48) hours after the receipt thereof, shall keep Buyer informed of the status and material details (including any change to the material terms and conditions) of any such Competing Proposal. The Company and the Operating Partnership shall notinquiry, offer or proposal, and shall cause each give Buyer five (5) days advance written notice of the Company Subsidiaries not any agreement to be entered into with, or any information to be supplied to, enter into any confidentiality agreement with any Person subsequent to the date hereof which prohibits the Company or the Operating Partnership from providing such information to Parent.
(d) Subject to this paragraph (d) and to Section 8.1(e), neither the Company Board nor any committee of the Company Board may (i) withdraw, qualify or modify or propose publicly to withdraw, qualify or modify, in each case, in a manner adverse to Parent, the Company Recommendation, or the approval or recommendation of any committee of the Company Board of the Merger or of any other transactions contemplated hereby, (ii) approve, recommend or endorse, or propose publicly to approve, recommend or endorse, a Competing Proposal (any action described in clauses (i) or (ii) being referred to as an “Adverse Recommendation Change”, it being agreed that the taking of any of the actions contemplated by Section 6.5(b), (c) or (f) shall not constitute, or be deemed to constitute, an Adverse Recommendation Change) or (iii) authorize or permit the Company or any of the Company Subsidiaries to enter into any agreement, arrangement or understanding (each, an “Acquisition Agreement”) contemplating, or that could reasonably be expected to lead to, a Competing Proposal (other than a confidentiality agreement in compliance with Section 6.5(b)). Notwithstanding the foregoing, at any time prior to receipt of the Company Shareholder Approval, the Company Board or a committee of the Company Board may (1) make an Adverse Recommendation Change for reasons not related to the receipt of a Competing Proposal if the Company Board determines in good faith after consultation with its independent financial advisors and outside legal counsel, that failure to take such action would be inconsistent with the directors’ duties to the Company or its stockholders under applicable Law or (2) in response to a bona fide written Competing Proposal (which was not solicited, initiated, encouraged or facilitated in violation of Section 6.5(a)) made after the date hereof take an action referred to in clause (i), (ii) or (iii) above and, in the case of clause (iii), terminate this Agreement in accordance with Section 8.1(e) if, after consultation with its independent financial advisors and outside legal counsel, the Company Board determines in good faith that such Competing Proposal constitutes a Superior Proposal (a “Subsequent Determination”); provided, however, that such actions may only be taken at a time that is after (I) the third (3rd) Business Day following Parent’s receipt of written notice from the Company that the Company Board is prepared to take such action, and (II) at the end of such period, the Company Board determines in good faith, after taking into account all amendments or revisions committed to by Parent and after consultation with its independent financial advisors and outside legal counsel, that such Competing Proposal remains a Superior Proposal relative to the Merger, as supplemented by any Counterproposal. Any such written notice shall specify the material terms and conditions of such applicable Competing Proposal, include the most current version of any Acquisition Agreement (including any amendments, supplements or modifications thereto), identify the person making such Competing Proposal and state that the Company Board otherwise intends to make a Subsequent Determination (subject to compliance with this subsection (d)). During any such three Business Day periodinquiry, Parent shall be entitled to deliver to the Company a counterproposal to such Competing Proposal (a “Counterproposal”). For the avoidance of doubt, the parties hereto acknowledge and agree that any amendment to the financial terms offer or any other material amendment to any material term of a Competing Proposal which amendment affects the determination of whether the Competing Proposal is a Superior Proposal to any Counterproposal shall be treated as a new Competing Proposal for the purposes of this Section 6.5(d) (requiring a new written notice by the Company and a new three Business Day period). For purposes of clarification, the statement by the Company that it has received a Competing Proposal, that its Board will consider such Competing Proposal and that its Board continues to recommend this Agreement pending such consideration shall not be deemed an Adverse Recommendation Changeproposal.
(e) Upon execution of this Agreement, the Company, the Operating Partnership and the Company Subsidiaries shall cease immediately and cause to be terminated any and all existing activities, discussions, solicitations or negotiations with any parties conducted heretofore with respect to a Competing Proposal by or on behalf of the Company, the Operating Partnership or any of the Company Representatives. The Company shall use its reasonable best efforts to cause (including by written request) each Person with whom it has executed a confidentiality agreement within the twelve months prior to the date hereof in connection with its consideration of any Competing Proposal to return or destroy all confidential or other non-public information heretofore furnished to such Person by or on behalf of the Company, the Operating Partnership or any of the Company Representatives.
(f) Any other provision of this Agreement notwithstanding, the Company Board may at any time take and disclose to its holders of Company Common Shares a position contemplated by Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act, may issue a stop, look and listen announcement and may make any disclosure required by Rule 14a-9 promulgated under the Exchange Act or Item 1012(a) of Regulation M-A; provided, however, that neither the Company nor the Company Board shall be permitted to recommend a Competing Proposal which is not a Superior Proposal; provided, further, that, for the avoidance of doubt, any public statements by the Company commenting on the merits of a Competing Proposal shall be an Adverse Recommendation Change other than (A) a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) of the Exchange Act, (B) an express rejection of a Competing Proposal or (C) an express reaffirmation of the Company Recommendation to its stockholders in favor of the Mergers.
(g) The Company shall not take any action to exempt any Person (other than Parent or any of its Affiliates and other than in connection with an Acquisition Agreement following a Subsequent Determination) from the restrictions on “control share acquisitions” contained in the Maryland Control Share Acquisition Act, as amended (or any similar provisions of the MRL) or otherwise cause such restrictions not to apply.
Appears in 1 contract
No Solicitations. (a) From the date hereof to the time when a Successful Bidder is selected in accordance with the Bidding Procedures, except (i) for actions expressly permitted by the Bidding Procedures, (ii) as permitted by Section 4.04(b) and (iii) for communications between the Company and its Representatives, on the one hand, and the creditors or creditors committee of the Company and their Representatives, on the other, which in the Company's good faith judgment are required for the proper administration of the Reorganization Cases and not inconsistent with the consummation of the transactions contemplated by this Agreement until the Effective Timein accordance with its terms, the Company and the Operating Partnership shall notwill not take, and shall not nor will it authorize or permit any of its Affiliates (or authorize or permit any of the Representatives acting for or on behalf of the Company Subsidiaries, or any of its or their officers, trustees, directors, partners, Affiliates or employees or any investment banker, financial advisor, attorney, accountant, agent or other representative retained by it or any of its Subsidiaries (collectively, the “Company Representatives”)Affiliates) to take, directly or indirectly, any action to (i) solicit, initiate negotiate, assist or knowingly encourage or otherwise knowingly facilitate (including by way of furnishing information) any inquiries, proposals or offers or any other efforts or attempts that constitute or that reasonably may be expected to lead to, a Competing Proposal or (ii) initiate or participate in any discussions or negotiations (other than to seek clarifications with respect to the Competing Proposal) regarding, or that reasonably may be expected to lead to, a Competing Proposal or approve or recommend, or publicly propose to approve or recommend, a Competing Proposal or enter into any merger agreement, letter of intent, agreement in principle, share purchase agreement, asset purchase agreement or share exchange agreement, option agreement or other similar agreement relating to a Competing Proposal, or enter into any agreement or agreement in principle requiring the Company or the Operating Partnership to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder or resolve, propose or agree to do any of the foregoing, except as contemplated in Section 6.5(d). Without limiting the foregoing, the Company shall be responsible for any failure on the part of its Company Representatives to comply with this Section 6.5.
(b) Any other provision of this Agreement notwithstanding, at any time prior to the receipt of the Company Shareholder Approval, if the Company receives a bona fide written Competing Proposal from a third party (which was not solicited, initiated, encouraged or facilitated in violation of Section 6.5(a)) after the date hereof, the Company (x) may furnish, or cause to be furnished, non-public confidential information with respect to the Company or any of its Subsidiaries or permitting access to the Assets and Properties or Books and Records of the Company Subsidiaries or any of its Subsidiaries) any offer or inquiry from any Person concerning an Alternative Transaction. If during such period the Company or any of its Affiliates (or any Representative acting for or on its behalf) receives from any Person any offer, inquiry or informational request referred to the Person who made such Competing Proposal and to its financing sources and Persons or entities working in concert with it (collectively, a “Third Party”), and (y) may participate in discussions and negotiations regarding such Competing Proposal, if, in the case of either clause (x) or (y): (A) prior to taking such actionabove, the Company enters into will promptly advise such Person, by written notice, of the terms of this Section 4.04 and the Bidding Procedures and promptly, orally and in writing, advise Buyer of such offer, inquiry or request and deliver a copy of such notice to Buyer.
(b) From the date hereof to the Affirmation Date, the Company may, and may authorize or permit any of its Affiliates or its or their Representatives to, discuss and negotiate the WLR Proposal with the proponent thereof and the proponent's Representatives and assist and otherwise facilitate the proponent and the proponent's Representatives in formulating and making definitive the WLR Proposal (including by providing confidential information with respect to the Company or any of its Subsidiaries or permitting access to the Assets and Properties or Books and Records of the Company or any of its Subsidiaries, subject to a confidentiality agreement with as described in Section 4.04(c)(B)). The Company will keep Buyer promptly informed of the Person who made such Competing Proposal status and all material information with respect to the WLR Proposal and such Competing Proposal that is substantially similar (except for the absence of standstill provisions) to the Confidentiality Agreement dated as of July 5, 2007 between the Company discussions and Parent (the “Confidentiality Agreement”)negotiations, and (B) will promptly provide Buyer with a copy of any material written amendment, supplement or other communication regarding the Company Board determines in good faith, after consultation with its outside legal counsel and independent financial advisors, that such Competing Proposal is, or is reasonably likely to lead to, a Superior WLR Proposal.
(c) The Company and the Operating Partnership shall provide prompt (within twenty-four (24) hours following receipt thereof) oral and written notice to Parent of (i) the receipt of any Competing Proposal, or any material modification or amendment to any Competing Proposal, Except as permitted by the Company, the Operating Partnership, any Company Subsidiary or any Company Representative, (ii) a copy of any documents or agreements provided in contemplation of such Competing Proposal (including any amendments, supplements or modifications thereto but excluding any financing documents or agreements it is not permitted to deliver as a result of confidentiality restrictionsSection 4.04(b), and (iii) the identity of such Person or entity making any such Competing Proposal. The Company and the Operating Partnership shall keep Parent reasonably informed on a current basis, to the extent reasonably practicable, but in any event as promptly as practicable, of the status and material details (including any change to the material terms and conditions) of any such Competing Proposal. The Company and the Operating Partnership shall not, and shall cause each of the Company Subsidiaries not to, enter into any confidentiality agreement with any Person subsequent to the date hereof which prohibits selection of Buyer as the Company or Successful Bidder in accordance with the Operating Partnership from providing such information to Parent.
(d) Subject to this paragraph (d) and to Section 8.1(e), neither the Company Board nor any committee of the Company Board may (i) withdraw, qualify or modify or propose publicly to withdraw, qualify or modify, in each case, in a manner adverse to ParentBidding Procedures, the Company Recommendationwill not take, nor will it authorize or the approval permit any of its Affiliates (or recommendation of any committee of the Company Board of the Merger authorize or of any other transactions contemplated hereby, (ii) approve, recommend or endorse, or propose publicly to approve, recommend or endorse, a Competing Proposal (any action described in clauses (i) or (ii) being referred to as an “Adverse Recommendation Change”, it being agreed that the taking of permit any of the actions contemplated by Section 6.5(b), (c) Representatives acting for or (f) shall not constitute, or be deemed to constitute, an Adverse Recommendation Change) or (iii) authorize or permit on behalf of the Company or any of its Affiliates) to take, directly or indirectly, any action to solicit, negotiate, assist or otherwise knowingly facilitate (including by furnishing information as described above) any offer or inquiry from any Person concerning an Alternative Transaction, except that the Company Subsidiaries to enter into any agreement, arrangement or understanding (each, an “Acquisition Agreement”) contemplating, or that could reasonably be expected to lead to, a Competing Proposal (other than a confidentiality agreement in compliance with Section 6.5(b)). Notwithstanding the foregoing, at any time prior to receipt Board of Directors of the Company Shareholder Approval, the Company Board or a committee of the Company Board may (1) make an Adverse Recommendation Change for reasons not related to the receipt of a Competing Proposal if the Company Board determines in good faith after consultation with its independent financial advisors and outside legal counsel, that failure to take such action would be inconsistent with the directors’ duties to the Company or its stockholders under applicable Law or (2) in response to a bona fide written Competing Proposal (which was not solicited, initiated, encouraged or facilitated in violation of Section 6.5(a)) made after the date hereof take an action referred to in clause (i), (ii) or (iii) above and, in the case of clause (iii), terminate this Agreement in accordance with Section 8.1(e) if, after consultation with its independent financial advisors and outside legal counsel, the Company Board determines in good faith that such Competing Proposal constitutes a Superior Proposal (a “Subsequent Determination”); provided, however, that such actions may only be taken at a time that is after (I) the third (3rd) Business Day following Parent’s receipt of written notice from the Company that the Company Board is prepared to take such action, and (II) at the end of such period, the Company Board determines in good faith, after taking into account all amendments or revisions committed to by Parent and after consultation with its independent financial advisors and outside legal counsel, that such Competing Proposal remains a Superior Proposal relative to the Merger, as supplemented by any Counterproposal. Any such written notice shall specify the material terms and conditions of such applicable Competing Proposal, include the most current version of any Acquisition Agreement (including any amendments, supplements or modifications thereto), identify the person making such Competing Proposal and state that the Company Board otherwise intends to make a Subsequent Determination (subject to compliance with this subsection (d)). During any such three Business Day period, Parent shall be entitled to deliver furnish information to the Company a counterproposal to such Competing Proposal (a “Counterproposal”). For the avoidance of doubt, the parties hereto acknowledge and agree that any amendment to the financial terms or any other material amendment to any material term of a Competing Proposal which amendment affects the determination of whether the Competing Proposal is a Superior Proposal to any Counterproposal shall be treated as a new Competing Proposal for the purposes of this Section 6.5(d) (requiring a new written notice by the Company and a new three Business Day period). For purposes of clarification, the statement by the Company that it has received a Competing Proposal, that its Board will consider such Competing Proposal and that its Board continues to recommend this Agreement pending such consideration shall not be deemed an Adverse Recommendation Change.
(e) Upon execution of this Agreement, the Company, the Operating Partnership and the Company Subsidiaries shall cease immediately and cause to be terminated any and all existing activities, discussions, solicitations enter into discussions or negotiations with any parties conducted heretofore Person that makes a bona fide unsolicited written proposal for an Alternative Transaction thereafter, if and only to the extent that (A) the Bankruptcy Court issues an Order that the Board of Directors of the Company must do so, (B) the Company shall have entered into a confidentiality agreement with respect to a Competing Proposal by or on behalf such Person having terms and conditions that, in the good faith judgment of the Company, are no more favorable to the Operating Partnership Person or any of less favorable to the Company Representatives. The than the Confidentiality Agreement, (C) the Company shall use its reasonable best efforts to cause (including by written request) each Person have promptly provided Buyer with whom it has executed a confidentiality agreement within the twelve months copy of such Order and, prior to the date hereof in connection with its consideration of any Competing Proposal to return furnishing such information to, or destroy all confidential entering into discussions or other non-public information heretofore furnished to negotiations with, such Person by or on behalf of the Company, the Operating Partnership or any of the Company Representatives.
(f) Any other provision of this Agreement notwithstandingPerson, the Company Board may at any time take shall have provided written notice to Buyer to the effect that it is furnishing information to, or entering into discussions or negotiations with, such Person, which notice shall identify such Person and disclose to its holders the proposed terms of Company Common Shares a position contemplated by Rule 14d-9 or Rule 14e-2(asuch Alternative Transaction in reasonable detail, and (D) promulgated under the Exchange Act, may issue a stop, look and listen announcement and may make any disclosure required by Rule 14a-9 promulgated under the Exchange Act or Item 1012(a) of Regulation M-A; provided, however, that neither the Company nor keeps Buyer promptly informed of the status and all material information with respect to any such discussions or negotiations. Nothing in this Section 4.04 shall permit the Company Board shall be permitted to recommend a Competing Proposal which terminate this Agreement (except as specifically provided in Article IX). It is not a Superior Proposal; provided, further, that, for the avoidance of doubt, agreed that any public statements by the Company commenting on the merits of a Competing Proposal shall be an Adverse Recommendation Change other than (A) a “stop, look and listen” or similar communication violation of the type contemplated by Rule 14d-9(f) of the Exchange Act, (B) an express rejection of a Competing Proposal or (C) an express reaffirmation of the Company Recommendation to its stockholders restrictions set forth in favor of the Mergers.
(g) The Company shall not take any action to exempt any Person (other than Parent or any of its Affiliates and other than in connection with an Acquisition Agreement following a Subsequent Determination) from the restrictions on “control share acquisitions” contained in the Maryland Control Share Acquisition Act, as amended (or any similar provisions of the MRL) or otherwise cause such restrictions not to apply.this Section
Appears in 1 contract
Sources: Stock Purchase and Sale Agreement (Burlington Industries Inc /De/)
No Solicitations. (a) From the date of Except as otherwise provided herein, unless and until this Agreement until the Effective Timeshall have been terminated in accordance with its terms, the Company and the Operating Partnership shall not, and shall not authorize or permit any of the Company Subsidiaries, or any cause each of its or their Affiliates, officers, trustees, directors, partnersemployees, Affiliates or employees or any investment bankeradvisors, financial advisorconsultants, attorneyshareholders, accountant, agent or other representative retained by it or any of its Subsidiaries (collectively, the “Company Representatives”)Representatives and agents not to, directly or indirectly, to (i) solicitinitiate, initiate solicit or knowingly encourage or knowingly facilitate (including by way of furnishing information) any inquiries, proposals or offers or any other efforts or attempts that constitute or that reasonably may be expected to lead to, a Competing Proposal or (ii) initiate or participate in any discussions or negotiations (other than to seek clarifications with respect to the Competing Proposal) regarding, or that reasonably may be expected to lead to, a Competing Proposal or approve or recommend, or publicly propose to approve or recommend, a Competing Proposal or enter into any merger agreement, letter of intent, agreement in principle, share purchase agreement, asset purchase agreement or share exchange agreement, option agreement or other similar agreement relating to a Competing Proposal, or enter into any agreement or agreement in principle requiring the Company inquiries or the Operating Partnership to abandon, terminate making or fail to consummate the transactions contemplated hereby or breach its obligations hereunder or resolve, propose or agree to do implementation of any of the foregoing, except as contemplated in Section 6.5(d). Without limiting the foregoing, the Company shall be responsible for any failure on the part of its Company Representatives to comply with this Section 6.5Acquisition Proposal.
(b) Any other provision The Company will not, and will direct its directors, officers, employees, advisors, consultants, shareholders, Representatives and agents not to, directly or indirectly, (i) discuss, negotiate, undertake, authorize, recommend, propose or enter into, either as the proposed surviving, merged, acquiring or acquired corporation, any Acquisition Proposal, (ii) facilitate, encourage, solicit or initiate discussions, negotiations or submissions of this Agreement notwithstandingproposals or offers in respect of an Acquisition Proposal, at any time prior to the receipt of the Company Shareholder Approval, if the Company receives a bona fide written Competing Proposal from a third party (which was not solicited, initiated, encouraged or facilitated in violation of Section 6.5(a)iii) after the date hereof, the Company (x) may furnish, furnish or cause to be furnishedfurnished to any Person or entity, non-public any information with respect to concerning the business, operations, properties or assets of the Company and in connection with an Acquisition Proposal (including without limitation any nonpublic information regarding the Company Subsidiaries to the Person who made such Competing Proposal and to its financing sources and Persons or entities working in concert with it (collectively, a “Third Party”Acquired Companies), and (y) may participate in discussions and negotiations regarding such Competing Proposal, if, in the case of either clause (x) or (y): (Aiv) prior to taking such action, the Company enters into a confidentiality agreement with the Person who made such Competing Proposal with respect to such Competing Proposal that is substantially similar (except for the absence of standstill provisions) to the Confidentiality Agreement dated as of July 5, 2007 between the Company and Parent (the “Confidentiality Agreement”), and (B) the Company Board determines otherwise cooperate in good faith, after consultation with its outside legal counsel and independent financial advisors, that such Competing Proposal isany way with, or is reasonably likely assist or participate in, facilitate or encourage, any effort or attempt by any other Person or entity to lead to, a Superior Proposaldo or seek any of the foregoing.
(c) The Company shall, and shall direct its Representatives to, immediately cease and cause to be terminated any existing discussions or negotiations with any persons or entities (other than Buyer and Merger Sub) conducted heretofore with respect to any of the Operating Partnership foregoing.
(d) Promptly after receipt by either of the Acquired Companies or their respective Representatives of any Acquisition Proposal or any written or oral request for nonpublic information or inquiry which the Company reasonably believes would reasonably be expected to lead to an Acquisition Proposal, the Company shall provide prompt (within twenty-four (24) hours following after receipt thereof) oral and of such Acquisition Proposal or, if by its Representatives, after being notified of such Acquisition Proposal, provide Buyer with written notice to Parent of (i) the receipt of any Competing Proposal, or any material modification or amendment to any Competing Proposal, by the Company, the Operating Partnership, any Company Subsidiary or any Company Representative, (ii) a copy of any documents or agreements provided in contemplation of such Competing Proposal (including any amendments, supplements or modifications thereto but excluding any financing documents or agreements it is not permitted to deliver as a result of confidentiality restrictions), and (iii) the identity of such Person or entity making any such Competing Proposal. The Company and the Operating Partnership shall keep Parent reasonably informed on a current basis, to the extent reasonably practicable, but in any event as promptly as practicable, of the status and material details (including any change to the material terms and conditions) of any such Competing Proposal. The Company and the Operating Partnership shall not, and shall cause each of the Company Subsidiaries not to, enter into any confidentiality agreement with any Person subsequent to the date hereof which prohibits the Company or the Operating Partnership from providing such information to Parent.
(d) Subject to this paragraph (d) and to Section 8.1(e), neither the Company Board nor any committee of the Company Board may (i) withdraw, qualify or modify or propose publicly to withdraw, qualify or modify, in each case, in a manner adverse to Parent, the Company Recommendation, or the approval or recommendation of any committee of the Company Board of the Merger or of any other transactions contemplated hereby, (ii) approve, recommend or endorse, or propose publicly to approve, recommend or endorse, a Competing Proposal (any action described in clauses (i) or (ii) being referred to as an “Adverse Recommendation Change”, it being agreed that the taking of any of the actions contemplated by Section 6.5(b), (c) or (f) shall not constitute, or be deemed to constitute, an Adverse Recommendation Change) or (iii) authorize or permit the Company or any of the Company Subsidiaries to enter into any agreement, arrangement or understanding (each, an “Acquisition Agreement”) contemplating, or that could reasonably be expected to lead to, a Competing Proposal (other than a confidentiality agreement in compliance with Section 6.5(b)). Notwithstanding the foregoing, at any time prior to receipt of the Company Shareholder Approval, the Company Board or a committee of the Company Board may (1) make an Adverse Recommendation Change for reasons not related to the receipt of a Competing Proposal if the Company Board determines in good faith after consultation with its independent financial advisors and outside legal counsel, that failure to take such action would be inconsistent with the directors’ duties to the Company or its stockholders under applicable Law or (2) in response to a bona fide written Competing Proposal (which was not solicited, initiated, encouraged or facilitated in violation of Section 6.5(a)) made after the date hereof take an action referred to in clause (i), (ii) or (iii) above and, in the case of clause (iii), terminate this Agreement in accordance with Section 8.1(e) if, after consultation with its independent financial advisors and outside legal counsel, the Company Board determines in good faith that such Competing Proposal constitutes a Superior Proposal (a “Subsequent Determination”); provided, however, that such actions may only be taken at a time that is after (I) the third (3rd) Business Day following Parent’s receipt of written notice from the Company that the Company Board is prepared to take such action, and (II) at the end of such period, the Company Board determines in good faith, after taking into account all amendments or revisions committed to by Parent and after consultation with its independent financial advisors and outside legal counsel, that such Competing Proposal remains a Superior Proposal relative to the Merger, as supplemented by any Counterproposal. Any such written notice shall specify the material terms and conditions of such applicable Competing Acquisition Proposal, include request or inquiry, and the most current version identity of the Person or group making any such Acquisition Agreement Proposal, request or inquiry. After receipt of the Acquisition Proposal, request or inquiry, the Company shall promptly keep Buyer informed in all material respects of the status and details (including any amendmentsamendments or proposed amendments (including any withdrawal thereof)) of any such Acquisition Proposal, supplements request or modifications thereto)inquiry. Promptly after the date hereof, identify the person making such Competing Proposal and state that the Company Board otherwise intends shall make commercially reasonable efforts to make a Subsequent Determination (subject to compliance with this subsection (d)). During any such three Business Day period, Parent shall be entitled to deliver to the Company a counterproposal to such Competing Proposal (a “Counterproposal”). For the avoidance of doubt, the parties hereto acknowledge and agree that any amendment to the financial terms or any other material amendment to any material term of a Competing Proposal which amendment affects the determination of whether the Competing Proposal is a Superior Proposal to any Counterproposal shall be treated as a new Competing Proposal for the purposes of this Section 6.5(d) (requiring a new written notice by the Company and a new three Business Day period). For purposes of clarification, the statement by the Company that it has received a Competing Proposal, that its Board will consider such Competing Proposal and that its Board continues to recommend this Agreement pending such consideration shall not be deemed an Adverse Recommendation Change.
(e) Upon execution of this Agreement, the Company, the Operating Partnership and the Company Subsidiaries shall cease immediately and cause to be terminated any and returned or destroyed all existing activities, discussions, solicitations or negotiations with any parties conducted heretofore with respect to a Competing Proposal by or on behalf confidential information of the Company, the Operating Partnership Acquired Companies provided to any potential investor or any of the Company Representatives. The Company shall use its reasonable best efforts to cause (including by written request) each Person with whom it has executed a confidentiality agreement within the twelve months prior purchaser pursuant to the date hereof in connection with its consideration of any Competing Proposal to return or destroy all confidential or other non-public information heretofore furnished to such Person by or on behalf of the Company, the Operating Partnership or any of the Company Representatives’s sale process.
(f) Any other provision of this Agreement notwithstanding, the Company Board may at any time take and disclose to its holders of Company Common Shares a position contemplated by Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act, may issue a stop, look and listen announcement and may make any disclosure required by Rule 14a-9 promulgated under the Exchange Act or Item 1012(a) of Regulation M-A; provided, however, that neither the Company nor the Company Board shall be permitted to recommend a Competing Proposal which is not a Superior Proposal; provided, further, that, for the avoidance of doubt, any public statements by the Company commenting on the merits of a Competing Proposal shall be an Adverse Recommendation Change other than (A) a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) of the Exchange Act, (B) an express rejection of a Competing Proposal or (C) an express reaffirmation of the Company Recommendation to its stockholders in favor of the Mergers.
(g) The Company shall not take any action to exempt any Person (other than Parent or any of its Affiliates and other than in connection with an Acquisition Agreement following a Subsequent Determination) from the restrictions on “control share acquisitions” contained in the Maryland Control Share Acquisition Act, as amended (or any similar provisions of the MRL) or otherwise cause such restrictions not to apply.
Appears in 1 contract
No Solicitations. (a) From the date hereof until the earlier of the termination of this Agreement until and the Effective TimeClosing, each Seller and the Company shall, and shall cause the other Combined Companies and each of their respective directors, officers, partners, members, managers, trustees, employees, agents and advisors (collectively, the Company “Representatives of the Sellers”) to cease any and all existing activities, discussions or negotiations with any Person other than Purchaser with respect to, and to deal exclusively with Purchaser and its designated Affiliates and representatives regarding, any Acquisition Proposal and, without the prior consent of Purchaser, the Sellers and the Operating Partnership Company shall not, and shall not authorize or permit any cause the other Combined Companies and the Representatives of the Company Subsidiaries, or any of its or their officers, trustees, directors, partners, Affiliates or employees or any investment banker, financial advisor, attorney, accountant, agent or other representative retained by it or any of its Subsidiaries (collectively, the “Company Representatives”), directly or indirectly, to Sellers not to:
(i) solicit, initiate or knowingly encourage otherwise engage in any negotiations, discussions or knowingly facilitate (including by way of furnishing information) any inquiries, proposals or offers or other communications with any other efforts or attempts that constitute or that reasonably may be expected Person relating to lead to, a Competing Proposal or any Acquisition Proposal;
(ii) initiate provide or participate in furnish information or documentation to any discussions or negotiations (other than to seek clarifications Person with respect to the Competing Combined Companies or any of their respective businesses or assets in respect of any Acquisition Proposal, except as required to operate in the ordinary course of business; or
(iii) regarding, or that reasonably may be expected to lead to, a Competing Proposal or approve or recommend, or publicly propose to approve or recommend, a Competing Proposal or enter into any merger agreement, letter negotiation of intent, agreement a Contract with any other Person in principle, share purchase agreement, asset purchase agreement or share exchange agreement, option agreement or other similar agreement relating to a Competing respect of any Acquisition Proposal, or enter into any agreement or agreement in principle requiring the Company or the Operating Partnership to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder or resolve, propose or agree to do any of the foregoing, except as contemplated in Section 6.5(d). Without limiting the foregoing, the Company shall be responsible for any failure on the part of its Company Representatives to comply with this Section 6.5.
(b) Any other provision If, after the date of this Agreement notwithstandingAgreement, at any time prior to the receipt of the Company Shareholder Approval, if Seller or the Company receives a bona fide written Competing an Acquisition Proposal from a third party (which was not solicited, initiated, encouraged or facilitated in violation of Section 6.5(a)) after the date hereof, the Company (x) may furnish, or cause to be furnished, non-public information with respect to the Company and the Company Subsidiaries to the Person who made such Competing Proposal and to its financing sources and Persons or entities working in concert with it (collectively, a “Third Party”), and (y) may participate in discussions and negotiations regarding such Competing Proposal, if, in the case of either clause (x) or (y): (A) prior to taking such action, the Company enters into a confidentiality agreement with the Person who made such Competing Proposal with respect to such Competing Proposal that is substantially similar (except for the absence of standstill provisions) to the Confidentiality Agreement dated as of July 5, 2007 between the Company and Parent (the “Confidentiality Agreement”), and (B) the Company Board determines in good faith, after consultation with its outside legal counsel and independent financial advisors, that such Competing Proposal is, or is reasonably likely to lead to, a Superior Proposal.
(c) The Company and the Operating Partnership shall provide prompt (within twenty-four (24) hours following receipt thereof) oral and written notice to Parent of (i) the receipt of any Competing Proposal, or any material modification or amendment to any Competing Proposal, by the Company, the Operating Partnership, any Company Subsidiary request for nonpublic information or any Company Representative, (ii) a copy of any documents or agreements provided in contemplation of such Competing Proposal (including any amendments, supplements or modifications thereto but excluding any financing documents or agreements it is not permitted to deliver as a result of confidentiality restrictions), and (iii) the identity of such Person or entity making any such Competing Proposal. The Company and the Operating Partnership shall keep Parent reasonably informed on a current basis, to the extent reasonably practicable, but in any event as promptly as practicable, of the status and material details (including any change to the material terms and conditions) of any such Competing Proposal. The Company and the Operating Partnership shall not, and shall cause each of the Company Subsidiaries not to, enter into any confidentiality agreement with any Person subsequent to the date hereof which prohibits the Company or the Operating Partnership from providing such information to Parent.
(d) Subject to this paragraph (d) and to Section 8.1(e), neither the Company Board nor any committee of the Company Board may (i) withdraw, qualify or modify or propose publicly to withdraw, qualify or modify, in each case, in a manner adverse to Parent, the Company Recommendation, or the approval or recommendation of any committee of the Company Board of the Merger or of any other transactions contemplated hereby, (ii) approve, recommend or endorse, or propose publicly to approve, recommend or endorse, a Competing Proposal (any action described in clauses (i) or (ii) being referred to as an “Adverse Recommendation Change”, it being agreed inquiry that the taking of any of the actions contemplated by Section 6.5(b), (c) or (f) shall not constitute, or be deemed to constitute, an Adverse Recommendation Change) or (iii) authorize or permit the Company or any of the Company Subsidiaries to enter into any agreement, arrangement or understanding (each, an “Acquisition Agreement”) contemplating, or that could would reasonably be expected to lead toto any Acquisition Proposal, a Competing Proposal then, as promptly as practicable (other than a confidentiality agreement and in compliance with Section 6.5(b)). Notwithstanding the foregoing, at any time prior to event within forty-eight (48) hours) after receipt of the Company Shareholder Approvalsuch Acquisition Proposal, request for nonpublic information, or inquiry that would reasonably be expected to lead to any Acquisition Proposal, the Company Board or a committee of the Company Board may (1) make an Adverse Recommendation Change for reasons not related to the receipt of a Competing Proposal if the Company Board determines in good faith after consultation with its independent financial advisors and outside legal counsel, that failure to take such action would be inconsistent with the directors’ duties to the Company or its stockholders under applicable Law or (2) in response to a bona fide written Competing Proposal (which was not solicited, initiated, encouraged or facilitated in violation of Section 6.5(a)) made after the date hereof take an action referred to in clause shall (i), (ii) or (iii) above and, in the case of clause (iii), terminate this Agreement in accordance provide Purchaser with Section 8.1(e) if, after consultation with its independent financial advisors and outside legal counsel, the Company Board determines in good faith that such Competing Proposal constitutes a Superior Proposal (a “Subsequent Determination”); provided, however, that such actions may only be taken at a time that is after (I) the third (3rd) Business Day following Parent’s receipt of written notice from the Company that the Company Board is prepared to take such action, and (II) at the end of such period, the Company Board determines in good faith, after taking into account all amendments or revisions committed to by Parent and after consultation with its independent financial advisors and outside legal counsel, that such Competing Proposal remains a Superior Proposal relative to the Merger, as supplemented by any Counterproposal. Any such written notice shall specify the material terms and conditions of such applicable Competing Proposal, include the most current version of any Acquisition Agreement (including any amendments, supplements or modifications thereto), identify the person making such Competing Proposal and state that the Company Board otherwise intends to make a Subsequent Determination (subject to compliance with this subsection (d)). During any such three Business Day period, Parent shall be entitled to deliver to the Company a counterproposal to such Competing Proposal (a “Counterproposal”). For the avoidance of doubt, the parties hereto acknowledge and agree that any amendment to the financial terms or any other material amendment to any material term of a Competing Proposal which amendment affects the determination of whether the Competing Proposal is a Superior Proposal to any Counterproposal shall be treated as a new Competing Proposal for the purposes of this Section 6.5(d) (requiring a new written notice by the Company and a new three Business Day period). For purposes of clarification, the statement by the Company that it has received a Competing Proposal, that its Board will consider such Competing an Acquisition Proposal or request for nonpublic information and that its Board continues to recommend this Agreement pending such consideration shall not be deemed an Adverse Recommendation Change.
(eii) Upon execution of this Agreement, the Company, the Operating Partnership and the Company Subsidiaries shall cease immediately and cause to be terminated any and all existing activities, discussions, solicitations or negotiations with any parties conducted heretofore with respect to a Competing Proposal by or on behalf of the Company, the Operating Partnership or any of the Company Representatives. The Company shall use its reasonable best efforts to cause (including by written request) each Person with whom it has executed a confidentiality agreement within the twelve months prior respond to the date hereof in connection with its consideration of any Competing Proposal proposing party that it is unable to return or destroy all confidential or other non-public information heretofore furnished to such Person by or on behalf of consider the Company, the Operating Partnership or any of the Company Representatives.
(f) Any other provision of this Agreement notwithstanding, the Company Board may at any time take and disclose to its holders of Company Common Shares a position contemplated by Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act, may issue a stop, look and listen announcement and may make any disclosure required by Rule 14a-9 promulgated under the Exchange Act or Item 1012(a) of Regulation M-A; provided, however, that neither the Company nor the Company Board shall be permitted to recommend a Competing Proposal which is not a Superior Proposal; provided, further, that, for the avoidance of doubt, any public statements by the Company commenting on the merits of a Competing Proposal shall be an Adverse Recommendation Change other than (A) a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) of the Exchange Act, (B) an express rejection of a Competing Acquisition Proposal or (C) an express reaffirmation of respond to the Company Recommendation to its stockholders in favor of the Mergersrequest for nonpublic information.
(g) The Company shall not take any action to exempt any Person (other than Parent or any of its Affiliates and other than in connection with an Acquisition Agreement following a Subsequent Determination) from the restrictions on “control share acquisitions” contained in the Maryland Control Share Acquisition Act, as amended (or any similar provisions of the MRL) or otherwise cause such restrictions not to apply.
Appears in 1 contract
Sources: Securities Purchase Agreement (Builders FirstSource, Inc.)
No Solicitations. (a) From and after the date of this Agreement until the Effective Timehereof, the Company and the Operating Partnership Seller shall not, and shall not authorize or permit any of direct and use commercially reasonable efforts to cause the Company Subsidiaries, or any Conning, the Conning Subsidiaries, RGA and the RGA Subsidiaries, and each of its or their respective officers, trustees, directors, partnersemployees, Affiliates or employees or any investment bankeragents, financial advisor, attorney, accountant, agent advisors or other representative retained by it or any of its Subsidiaries representatives (collectivelyeach, the “Company Representatives”)a "Representative") not to, directly or indirectly, to (i) solicit, initiate or knowingly encourage or knowingly facilitate the submission of any Proposal (including by way of furnishing information) any inquiriesas defined below), proposals or offers or any other efforts or attempts that constitute or that reasonably may be expected to lead to, a Competing Proposal or (ii) initiate or participate in any discussions or negotiations (other than to seek clarifications with respect to the Competing Proposal) regarding, or that reasonably may be expected furnish to lead to, a Competing Proposal or approve or recommend, or publicly propose to approve or recommend, a Competing Proposal or enter into any merger agreement, letter of intent, agreement in principle, share purchase agreement, asset purchase agreement or share exchange agreement, option agreement or other similar agreement relating to a Competing Proposal, or enter into Person any agreement or agreement in principle requiring the Company or the Operating Partnership to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder or resolve, propose or agree to do any of the foregoing, except as contemplated in Section 6.5(d). Without limiting the foregoing, the Company shall be responsible for any failure on the part of its Company Representatives to comply with this Section 6.5.
(b) Any other provision of this Agreement notwithstanding, at any time prior to the receipt of the Company Shareholder Approval, if the Company receives a bona fide written Competing Proposal from a third party (which was not solicited, initiated, encouraged or facilitated in violation of Section 6.5(a)) after the date hereof, the Company (x) may furnish, or cause to be furnished, non-public information with respect to, any Proposal or Alternative Transaction (as defined below), other than with Buyer; provided, however, that to the Company and extent required by the Company Subsidiaries fiduciary obligations of Seller's Board of Directors, as determined in good faith by Seller's Board of Directors following consultation with outside counsel, or at the direction of the Department or the Reorganization Proceeding, if Seller receives an unsolicited proposal with respect to the Person who made such Competing Proposal and to its financing sources and Persons or entities working in concert with it a Control Transaction (collectively, a “Third Party”as defined below), and (y) Seller may participate in such discussions and or negotiations regarding such Competing Proposal, if, in the case of either clause or furnish (x) or (y): (A) prior pursuant to taking such action, the Company enters into a confidentiality agreement with the Person who made in customary form) such Competing information in response to such Proposal or, subject to Section 11.3, authorize, engage in or enter into any agreement with respect to such Competing Control Transaction. Seller will advise Buyer of, and communicate to Buyer the terms of, any Proposal that is substantially similar (except for Seller, the absence Company, any of standstill provisions) to the Confidentiality Agreement dated as of July 5, 2007 between the Company and Parent (the “Confidentiality Agreement”), and (B) the Company Board determines in good faith, after consultation with its outside legal counsel and independent financial advisors, that such Competing Proposal is, or is reasonably likely to lead to, a Superior Proposal.
(c) The Company and the Operating Partnership shall provide prompt (within twenty-four (24) hours following receipt thereof) oral and written notice to Parent of (i) the receipt of any Competing Proposal, Subsidiaries or any material modification or amendment to any Competing Proposalof their respective Representatives, or, if known by the Company, the Operating PartnershipRGA, any Company Subsidiary of the RGA Subsidiaries, Conning or any Company Representativeof the Conning Subsidiaries, may receive unless the terms of such Proposal prohibit such disclosure, or otherwise directed by the Director.
(b) For purposes of this Agreement: (i) "Proposal" means any written proposal or offer from any Person relating to an Alternative Transaction; (ii) a copy "Alternative Transaction" means any (A) direct or indirect acquisition or purchase of any documents or agreements provided in contemplation of such Competing Proposal (including any amendments, supplements or modifications thereto but excluding any financing documents or agreements it is not permitted to deliver as a result of confidentiality restrictions), and (iii) the identity of such Person or entity making any such Competing Proposal. The Company and the Operating Partnership shall keep Parent reasonably informed on a current basis, to the extent reasonably practicable, but in any event as promptly as practicable, of the status and material details (including any change to the material terms and conditions) of any such Competing Proposal. The Company and the Operating Partnership shall not, and shall cause each of the Company Subsidiaries not to, enter into any confidentiality agreement with any Person subsequent to the date hereof which prohibits the Company or the Operating Partnership from providing such information to Parent.
(d) Subject to this paragraph (d) and to Section 8.1(e), neither the Company Board nor any committee of the Company Board may (i) withdraw, qualify or modify or propose publicly to withdraw, qualify or modify, in each case, in a manner adverse to Parent, the Company Recommendationequity securities of, or the approval or recommendation of any committee of the Company Board of the Merger or of any other transactions contemplated herebyequity interest in, (ii) approve, recommend or endorse, or propose publicly to approve, recommend or endorse, a Competing Proposal (any action described in clauses (i) or (ii) being referred to as an “Adverse Recommendation Change”, it being agreed that the taking of any of the actions contemplated by Section 6.5(b), (c) or (f) shall not constitute, or be deemed to constitute, an Adverse Recommendation Change) or (iii) authorize or permit the Company or any of the Company Subsidiaries that if consummated would result in any Person beneficially owning (or having the right to enter into acquire) 10% or more of any agreement, arrangement or understanding (each, an “Acquisition Agreement”) contemplatingclass of equity securities of, or that could the equity interest in the Company or any of the Subsidiaries or which would require approval under any federal, state or local law, rule, regulation or order governing or relating to the current or contemplated operations of the Company or any of the Subsidiaries, (B) merger, consolidation, business combination, sale of a material portion of the assets (including, without limitation, by means of any reinsurance or renewal rights transaction), liquidation, dissolution or similar transaction involving the Company or any of the Subsidiaries or (C) other transaction the consummation of which would reasonably be expected to lead toimpede, interfere with, prevent or materially delay the transactions with Buyer contemplated by this Agreement or which would reasonably be expected to dilute the benefits of such transactions to Buyer; and (iii) "Control Transaction" means any transaction that involves a Competing Proposal (other than a confidentiality agreement in compliance with Section 6.5(b)). Notwithstanding the foregoing, at any time prior to receipt of the Company Shareholder Approval, the Company Board A) merger or a committee of the Company Board may (1) make an Adverse Recommendation Change for reasons not related to the receipt of a Competing Proposal if the Company Board determines in good faith after consultation with its independent financial advisors and outside legal counsel, that failure to take such action would be inconsistent with the directors’ duties to consolidation or similar business combination involving the Company or its stockholders under applicable Law or (2) in response to a bona fide written Competing Proposal (which was not solicited, initiated, encouraged or facilitated in violation of Section 6.5(a)) made after the date hereof take an action referred to in clause (i), (ii) or (iii) above and, in the case of clause (iii), terminate this Agreement in accordance with Section 8.1(e) if, after consultation with its independent financial advisors and outside legal counsel, the Company Board determines in good faith that such Competing Proposal constitutes a Superior Proposal (a “Subsequent Determination”); provided, however, that such actions may only be taken at a time that is after (I) the third (3rd) Business Day following Parent’s receipt of written notice from the Company that the Company Board is prepared to take such action, and (II) at the end of such period, the Company Board determines in good faith, after taking into account all amendments or revisions committed to by Parent and after consultation with its independent financial advisors and outside legal counsel, that such Competing Proposal remains a Superior Proposal relative to the Merger, as supplemented by any Counterproposal. Any such written notice shall specify the material terms and conditions of such applicable Competing Proposal, include the most current version of any Acquisition Agreement (including any amendments, supplements or modifications thereto), identify the person making such Competing Proposal and state that the Company Board otherwise intends to make a Subsequent Determination (subject to compliance with this subsection (d)). During any such three Business Day period, Parent shall be entitled to deliver to the Company a counterproposal to such Competing Proposal (a “Counterproposal”). For the avoidance of doubt, the parties hereto acknowledge and agree that any amendment to the financial terms or any other material amendment to any material term of a Competing Proposal which amendment affects the determination of whether the Competing Proposal is a Superior Proposal to any Counterproposal shall be treated as a new Competing Proposal for the purposes of this Section 6.5(d) (requiring a new written notice by the Company and a new three Business Day period). For purposes of clarification, the statement by the Company that it has received a Competing Proposal, that its Board will consider such Competing Proposal and that its Board continues to recommend this Agreement pending such consideration shall not be deemed an Adverse Recommendation Change.
(e) Upon execution of this Agreement, the Company, the Operating Partnership and the Company Subsidiaries shall cease immediately and cause to be terminated any and all existing activities, discussions, solicitations or negotiations with any parties conducted heretofore with respect to a Competing Proposal by or on behalf significant Subsidiary of the Company, (B) sale of all or substantially all of the Operating Partnership or any assets of the Company Representatives. The Company shall use its reasonable best efforts to cause (including by written request) each Person with whom it has executed a confidentiality agreement within the twelve months prior to the date hereof in connection with its consideration of any Competing Proposal to return or destroy all confidential or other non-public information heretofore furnished to such Person by or on behalf of the Company, the Operating Partnership or any of the Company Representatives.
(f) Any other provision of this Agreement notwithstanding, the Company Board may at any time take and disclose to its holders of Company Common Shares a position contemplated by Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act, may issue a stop, look and listen announcement and may make any disclosure required by Rule 14a-9 promulgated under the Exchange Act or Item 1012(a) of Regulation M-A; provided, however, that neither the Company nor the Company Board shall be permitted to recommend a Competing Proposal which is not a Superior Proposal; provided, further, that, for the avoidance of doubt, any public statements by the Company commenting on the merits of a Competing Proposal shall be an Adverse Recommendation Change other than (A) a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) of the Exchange Act, (B) an express rejection of a Competing Proposal or (C) an express reaffirmation sale or issuance of the Shares or other equity securities of the Company Recommendation to its stockholders in favor a Person which, following the completion of such sale or issuance, will beneficially own the Shares or other equity securities of the Mergers.
(g) The Company shall not take any action to exempt any Person (other than Parent or any of its Affiliates and other than in connection with an Acquisition Agreement following representing a Subsequent Determination) from the restrictions on “control share acquisitions” contained in the Maryland Control Share Acquisition Act, as amended (or any similar provisions majority of the MRL) or otherwise cause such restrictions not voting power with respect to applythe election of the directors of the Company.
Appears in 1 contract
Sources: Stock Purchase Agreement
No Solicitations. (a) From the date of Unless and until this Agreement until the Effective Timeshall have been terminated in accordance with its terms, (i) the Company and the Operating Partnership shall not, and shall cause each other Acquired Company not to, and shall not authorize or permit any of the Company Subsidiariesdirector, or any of its or their officersofficer, trusteesemployee, directors, partners, Affiliates or employees or any investment banker, financial advisor, attorney, accountant, agent or other representative retained by it investment banker (with respect to any Person, the foregoing Persons are referred to herein as such Person’s “Representatives”) of an Acquired Company to, and (ii) no Selling Securityholder shall or shall permit any of its Subsidiaries (collectively, the “Company Representatives”)such Selling Securityholder’s Representatives to, directly or indirectly, initiate, solicit or take any action to (i) solicit, initiate facilitate or knowingly encourage any inquiries or knowingly facilitate (including by way the making or implementation of furnishing information) any inquiries, proposals Acquisition Proposal or offers or the making of any other efforts or attempts proposal that constitute or that could reasonably may be expected to lead toto any Takeover Proposal.
(b) (x) The Company will not, a Competing Proposal and will cause each other Acquired Company not to and will direct that their respective Representatives do not, directly or indirectly, and (y) each Selling Securityholder will not and will direct that their respective Representatives do not, directly or indirectly (i) discuss, negotiate, undertake, authorize, recommend, propose or enter into, either as the proposed surviving, merged, acquiring or acquired corporation, any Acquisition Proposal, (ii) facilitate, encourage, solicit or initiate discussions, negotiations or participate submissions of proposals or offers in respect of an Acquisition Proposal, (iii) furnish or cause to be furnished, to any discussions Person, any information concerning the business, operations, properties or negotiations (other than to seek clarifications assets of the Company in connection with respect to the Competing Proposal) regarding, or that reasonably may be expected to lead to, a Competing Proposal or approve or recommend, or publicly propose to approve or recommend, a Competing Proposal or enter into any merger agreement, letter of intent, agreement in principle, share purchase agreement, asset purchase agreement or share exchange agreement, option agreement or other similar agreement relating to a Competing an Acquisition Proposal, or enter into (iv) otherwise cooperate in any agreement way with, or agreement in principle requiring the Company assist or the Operating Partnership to abandonparticipate in, terminate facilitate or fail to consummate the transactions contemplated hereby encourage, any effort or breach its obligations hereunder or resolve, propose or agree attempt by any other Person to do or seek any of the foregoing, except as contemplated in Section 6.5(d). Without limiting the foregoingprovided, the Company shall be responsible for any failure on the part of its Company Representatives to comply with this Section 6.5.
(b) Any other provision of this Agreement notwithstandinghowever, that, at any time prior to the receipt of the Company Shareholder Approvalobtaining Requisite Stockholder Consent, if the Company or any Selling Securityholder receives a bona fide written Competing offer with respect to an Acquisition Proposal that was unsolicited and that did not otherwise result from a third party (which was not solicited, initiated, encouraged or facilitated in violation breach of this Section 6.5(a)) after the date hereof7.2, the Company (x) or any Selling Securityholder may furnish, or cause to be furnished, furnish non-public information with respect to the Company and the Company Subsidiaries to the Person who made such Competing offer with respect to an Acquisition Proposal and to its financing sources and Persons or entities working in concert with it (collectively, a “Third Party”), and (y) may participate in discussions and negotiations regarding such Competing Proposal, if, in the case of either clause (x) or (y): Acquisition Proposal if (A) prior to taking such action, the Company enters into a confidentiality agreement with the Person who made such Competing Proposal with respect to such Competing Proposal that is substantially similar (except for the absence of standstill provisions) to the Confidentiality Agreement dated as of July 5, 2007 between the Company and Parent (the “Confidentiality Agreement”), and (B) the Company Board determines in good faith, after consultation with receiving advice from its outside legal counsel and independent financial advisorscounsel, that failure to do so would violate its fiduciary duties to the Other Securityholders under applicable Law, (B) the Company Board determines that such Competing Acquisition Proposal is, or is reasonably likely to lead to, a Superior Proposal.
Proposal and (cC) the Company has delivered to Buyer a prior written notice advising Buyer that it intends to take such action. The Company and the Operating Partnership each Selling Securityholder shall provide prompt notify Buyer promptly (within but in no event later than twenty-four (24) hours following receipt thereofhours) oral and written notice to Parent after it or such Selling Securityholder, as applicable, obtains Knowledge of (i) the receipt by the Company (or any of its Representatives) or any Selling Securityholder (or any Selling Securityholder’s Representative) of any Competing Acquisition Proposal, or any material modification or amendment inquiry that would reasonably be expected to any Competing lead to an Acquisition Proposal, any request for non-public information relating to an Acquired Company or for access to the business, properties, assets, books or records of the Acquired Companies by the Companyany third party. In such notice, the Operating PartnershipCompany and each Selling Securityholder shall identify the third party making, and details of the material terms and conditions of, any Company Subsidiary such Acquisition Proposal, indication or any Company Representative, (ii) a copy of any documents or agreements provided in contemplation of such Competing Proposal (including any amendments, supplements or modifications thereto but excluding any financing documents or agreements it is not permitted to deliver as a result of confidentiality restrictions), and (iii) the identity of such Person or entity making any such Competing Proposalrequest. The Company and the Operating Partnership each Selling Securityholder shall keep Parent reasonably informed Buyer fully informed, on a current basis, to the extent reasonably practicable, but in any event as promptly as practicable, of the status and material details (including any change to the material terms and conditions) of any such Competing Acquisition Proposal, indication or request, including any material amendments or proposed amendments as to price and other material terms thereof. The Company shall provide Buyer with at least forty-eight (48) hours prior notice of any meeting of the Company Board (or such lesser notice as is provided to the members of the Company Board) at which the Company Board is reasonably expected to consider any Acquisition Proposal. The Company and the Operating Partnership shall not, and shall cause each of the Company Subsidiaries not to, enter into any confidentiality agreement with any Person subsequent Selling Securityholder (to the date hereof which prohibits the Company or the Operating Partnership from providing extent such information to Parent.
(d) Subject to this paragraph (d) and to Section 8.1(e), neither the Company Board nor any committee of the Company Board may (i) withdraw, qualify or modify or propose publicly to withdraw, qualify or modify, in each case, in a manner adverse to Parent, the Company Recommendation, or the approval or recommendation of any committee of the Company Board of the Merger or of any other transactions contemplated hereby, (ii) approve, recommend or endorse, or propose publicly to approve, recommend or endorse, a Competing Proposal (any action described in clauses (i) or (ii) being referred to as an “Adverse Recommendation Change”, it being agreed that the taking of any of the actions contemplated by Section 6.5(b), (c) or (f) shall not constitute, or be deemed to constitute, an Adverse Recommendation Change) or (iii) authorize or permit the Company or any of the Company Subsidiaries to enter into any agreement, arrangement or understanding (each, an “Acquisition Agreement”) contemplating, or that could reasonably be expected to lead to, a Competing Proposal (other than a confidentiality agreement in compliance with Section 6.5(b)). Notwithstanding the foregoing, at any time prior to receipt of the Company Shareholder Approval, the Company Board or a committee of the Company Board may (1) make an Adverse Recommendation Change for reasons not related to the receipt of a Competing Proposal if the Company Board determines in good faith after consultation with its independent financial advisors and outside legal counsel, that failure to take such action would be inconsistent with the directors’ duties to the Company or its stockholders under applicable Law or (2) in response to a bona fide written Competing Proposal (which was not solicited, initiated, encouraged or facilitated in violation of Section 6.5(a)) made after the date hereof take an action referred to in clause (i), (ii) or (iii) above and, in the case of clause (iii), terminate this Agreement in accordance with Section 8.1(e) if, after consultation with its independent financial advisors and outside legal counsel, the Company Board determines in good faith that such Competing Proposal constitutes a Superior Proposal (a “Subsequent Determination”); provided, however, that such actions may only be taken at a time that is after (I) the third (3rd) Business Day following Parent’s receipt of written notice from the Company that the Company Board is prepared to take such action, and (II) at the end of such period, the Company Board determines in good faith, after taking into account all amendments or revisions committed to by Parent and after consultation with its independent financial advisors and outside legal counsel, that such Competing Proposal remains a Superior Proposal relative to the Merger, as supplemented by any Counterproposal. Any such written notice shall specify the material terms and conditions of such applicable Competing Proposal, include the most current version of any Acquisition Agreement (including any amendments, supplements or modifications thereto), identify the person making such Competing Proposal and state that the Company Board otherwise intends to make a Subsequent Determination (subject to compliance with this subsection (d)). During any such three Business Day period, Parent shall be entitled to deliver to the Company a counterproposal to such Competing Proposal (a “Counterproposal”). For the avoidance of doubt, the parties hereto acknowledge and agree that any amendment to the financial terms or any other material amendment to any material term of a Competing Proposal which amendment affects the determination of whether the Competing Proposal is a Superior Proposal to any Counterproposal shall be treated as a new Competing Proposal for the purposes of this Section 6.5(d) (requiring a new written notice by the Company and a new three Business Day period). For purposes of clarification, the statement by the Company that it has received a Competing Proposal, that its Board will consider such Competing Proposal and that its Board continues to recommend this Agreement pending such consideration shall not be deemed an Adverse Recommendation Change.
(e) Upon execution of this Agreement, the Company, the Operating Partnership and the Company Subsidiaries shall cease immediately and cause to be terminated any and all existing activities, discussions, solicitations or negotiations with any parties conducted heretofore with respect to a Competing Proposal by or on behalf of the Company, the Operating Partnership or any of the Company Representatives. The Company shall use its reasonable best efforts to cause (including by written request) each Person with whom it has executed a confidentiality agreement within the twelve months prior to the date hereof in connection with its consideration of any Competing Proposal to return or destroy all confidential or other Selling Securityholder provided non-public information heretofore furnished to such Person by or on behalf any third party) shall promptly provide Buyer with a list of any non-public information concerning the Company’s business, present or future performance, financial condition or results of operations, provided to any third party, and, to the Operating Partnership or any extent such information has not been previously provided to Buyer, copies of the Company Representativessuch information.
(f) Any other provision of this Agreement notwithstanding, the Company Board may at any time take and disclose to its holders of Company Common Shares a position contemplated by Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act, may issue a stop, look and listen announcement and may make any disclosure required by Rule 14a-9 promulgated under the Exchange Act or Item 1012(a) of Regulation M-A; provided, however, that neither the Company nor the Company Board shall be permitted to recommend a Competing Proposal which is not a Superior Proposal; provided, further, that, for the avoidance of doubt, any public statements by the Company commenting on the merits of a Competing Proposal shall be an Adverse Recommendation Change other than (A) a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) of the Exchange Act, (B) an express rejection of a Competing Proposal or (C) an express reaffirmation of the Company Recommendation to its stockholders in favor of the Mergers.
(g) The Company shall not take any action to exempt any Person (other than Parent or any of its Affiliates and other than in connection with an Acquisition Agreement following a Subsequent Determination) from the restrictions on “control share acquisitions” contained in the Maryland Control Share Acquisition Act, as amended (or any similar provisions of the MRL) or otherwise cause such restrictions not to apply.
Appears in 1 contract
Sources: Acquisition Agreement and Plan of Merger (Envestnet, Inc.)
No Solicitations. (a) From the date hereof until the earlier of the Closing Date or the termination of this Agreement until in accordance with its terms (the Effective Time"Acquisition Exclusivity Period"), neither the Company and Stockholder nor the Operating Partnership shall notSeller will, and shall not authorize or neither of them will permit any of the Company Subsidiaries, or any of its or their officers, trustees, directors, partners, Affiliates or employees or any investment banker, financial advisor, attorney, accountant, agent or other representative retained by it or any of its Subsidiaries (collectively, the “Company Representatives”)Seller Parties to, directly or indirectly, to (ia) solicit, encourage, initiate or knowingly encourage or knowingly facilitate (including by way of furnishing information) entertain any inquiries, proposals or offers or any other efforts or attempts that constitute or that reasonably may be expected to lead to, a Competing Proposal or (ii) initiate or participate in any discussions or negotiations (other than to seek clarifications with respect to the Competing Proposal) regarding, or that reasonably may be expected to lead to, a Competing Proposal or approve or recommend, or publicly propose to approve or recommend, a Competing Proposal proposals or enter into or continue any merger agreementdiscussions, letter of intent, agreement in principle, share purchase agreement, asset purchase agreement negotiations or share exchange agreement, option agreement agreements relating to the sale or other similar agreement relating disposition of the Seller (whether through a merger, acquisition, reorganization, recapitalization, stock purchase or otherwise) or its assets, properties, business or operations (a "Proposed Acquisition") to a Competing Proposalor with any person or entity other than Sub or Purchaser, or enter into any agreement or agreement in principle requiring the Company or the Operating Partnership to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder or resolve, propose or agree to do any of the foregoing, except as contemplated in Section 6.5(d). Without limiting the foregoing, the Company shall be responsible for any failure on the part of its Company Representatives to comply with this Section 6.5.
(b) Any other provision of this Agreement notwithstanding, at provide any time prior to the receipt of the Company Shareholder Approval, if the Company receives a bona fide written Competing Proposal from a third party (which was not solicited, initiated, encouraged or facilitated in violation of Section 6.5(a)) after the date hereof, the Company (x) may furnish, or cause to be furnished, non-public information with respect to the Company and the Company Subsidiaries to the Person who made such Competing Proposal and to its financing sources and Persons or entities working in concert with it (collectively, a “Third Party”), and (y) may participate in discussions and negotiations regarding such Competing Proposal, if, in the case of either clause (x) or (y): (A) prior to taking such action, the Company enters into a confidentiality agreement with the Person who made such Competing Proposal with respect to such Competing Proposal that is substantially similar (except for the absence of standstill provisions) to the Confidentiality Agreement dated as of July 5, 2007 between the Company and Parent (the “Confidentiality Agreement”), and (B) the Company Board determines in good faith, after consultation with its outside legal counsel and independent financial advisors, that such Competing Proposal is, or is reasonably likely to lead to, a Superior Proposal.
(c) The Company and the Operating Partnership shall provide prompt (within twenty-four (24) hours following receipt thereof) oral and written notice to Parent of (i) the receipt of any Competing Proposal, assistance or any material modification or amendment information to any Competing Proposal, by the Company, the Operating Partnership, any Company Subsidiary or any Company Representative, (ii) a copy of any documents or agreements provided in contemplation of such Competing Proposal (including any amendments, supplements or modifications thereto but excluding any financing documents or agreements it is not permitted to deliver as a result of confidentiality restrictions), and (iii) the identity of such Person person or entity making other than Sub or Purchaser relating to any such Competing ProposalProposed Acquisition. The Company Seller and the Operating Partnership shall keep Parent reasonably informed on a current basis, Stockholder agree to the extent reasonably practicable, but in any event as promptly as practicable, of the status and material details (including any change to the material terms and conditions) of any such Competing Proposal. The Company and the Operating Partnership shall not, and shall cause each of the Company Subsidiaries not to, enter into any confidentiality agreement with any Person subsequent to the date hereof which prohibits the Company or the Operating Partnership from providing such information to Parent.
(d) Subject to this paragraph (d) and to Section 8.1(e), neither the Company Board nor any committee of the Company Board may (i) withdraw, qualify or modify or propose publicly to withdraw, qualify or modify, in each case, in a manner adverse to Parent, the Company Recommendation, or the approval or recommendation of any committee of the Company Board of the Merger or of any other transactions contemplated hereby, (ii) approve, recommend or endorse, or propose publicly to approve, recommend or endorse, a Competing Proposal (any action described in clauses (i) or (ii) being referred to as an “Adverse Recommendation Change”, it being agreed that the taking of any of the actions contemplated by Section 6.5(b), (c) or (f) shall not constitute, or be deemed to constitute, an Adverse Recommendation Change) or (iii) authorize or permit the Company or any of the Company Subsidiaries to enter into any agreement, arrangement or understanding (each, an “Acquisition Agreement”) contemplating, or that could reasonably be expected to lead to, a Competing Proposal (other than a confidentiality agreement in compliance with Section 6.5(b)). Notwithstanding the foregoing, at any time prior to receipt of the Company Shareholder Approval, the Company Board or a committee of the Company Board may (1) make an Adverse Recommendation Change for reasons not related to the receipt of a Competing Proposal if the Company Board determines in good faith after consultation with its independent financial advisors and outside legal counsel, that failure to take such action would be inconsistent with the directors’ duties to the Company or its stockholders under applicable Law or (2) in response to a bona fide written Competing Proposal (which was not solicited, initiated, encouraged or facilitated in violation of Section 6.5(a)) made after the date hereof take an action referred to in clause (i), (ii) or (iii) above and, in the case of clause (iii), terminate this Agreement in accordance with Section 8.1(e) if, after consultation with its independent financial advisors and outside legal counsel, the Company Board determines in good faith that such Competing Proposal constitutes a Superior Proposal (a “Subsequent Determination”); provided, however, that such actions may only be taken at a time that is after (I) the third (3rd) Business Day following Parent’s receipt of written notice from the Company that the Company Board is prepared to take such action, and (II) at the end of such period, the Company Board determines in good faith, after taking into account all amendments or revisions committed to by Parent and after consultation with its independent financial advisors and outside legal counsel, that such Competing Proposal remains a Superior Proposal relative to the Merger, as supplemented by any Counterproposal. Any such written notice shall specify the material terms and conditions of such applicable Competing Proposal, include the most current version of any Acquisition Agreement (including any amendments, supplements or modifications thereto), identify the person making such Competing Proposal and state that the Company Board otherwise intends to make a Subsequent Determination (subject to compliance with this subsection (d)). During any such three Business Day period, Parent shall be entitled to deliver to the Company a counterproposal to such Competing Proposal (a “Counterproposal”). For the avoidance of doubt, the parties hereto acknowledge and agree that any amendment to the financial terms or any other material amendment to any material term of a Competing Proposal which amendment affects the determination of whether the Competing Proposal is a Superior Proposal to any Counterproposal shall be treated as a new Competing Proposal for the purposes of this Section 6.5(d) (requiring a new written notice by the Company and a new three Business Day period). For purposes of clarification, the statement by the Company that it has received a Competing Proposal, that its Board will consider such Competing Proposal and that its Board continues to recommend this Agreement pending such consideration shall not be deemed an Adverse Recommendation Change.
(e) Upon execution of this Agreement, the Company, the Operating Partnership and the Company Subsidiaries shall immediately cease immediately and cause to be terminated any and all existing activities, discussions, solicitations discussions or negotiations with any parties conducted (other than Sub or Purchaser) heretofore with respect conducted, or the provision by Stockholder or the Seller or the Seller Parties of information to a Competing Proposal by any party (other than Sub or on behalf Purchaser) to which information heretofore has been provided. If during the Acquisition Exclusivity Period the Seller or the Stockholder receives any such inquiry or proposal or request for information, or offer to discuss or negotiate any Proposed Acquisition, the Seller or the Stockholder will immediately provide notice thereof to Purchaser, indicating therein the name of the Company, person or entity initiating such activity and the Operating Partnership terms and conditions of any such offer. Purchaser and Sub hereby acknowledge that nothing in this Agreement shall require the Seller or the Stockholder (either directly or through their representatives) to request return of any of the Company Representatives. The Company shall use its reasonable best efforts information provided to cause (including by written request) each Person with whom it has executed a confidentiality agreement within the twelve months any other person prior to the date hereof in connection with its consideration or contemplation of a Proposed Acquisition, or advise any Competing Proposal to return or destroy all confidential or other non-public information heretofore furnished to such Person by or on behalf person of the Company, the Operating Partnership or any of the Company Representatives.
(f) Any other provision existence of this Agreement notwithstanding, the Company Board may at any time take and disclose to its holders of Company Common Shares a position contemplated by Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act, may issue a stop, look and listen announcement and may make any disclosure required by Rule 14a-9 promulgated under the Exchange Act or Item 1012(a) of Regulation M-A; provided, however, that neither the Company nor the Company Board shall be permitted to recommend a Competing Proposal which is not a Superior Proposal; provided, further, that, for the avoidance of doubt, any public statements by the Company commenting on the merits of a Competing Proposal shall be an Adverse Recommendation Change other than (A) a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) of the Exchange Act, (B) an express rejection of a Competing Proposal or (C) an express reaffirmation of the Company Recommendation to its stockholders in favor of the MergersAgreement.
(g) The Company shall not take any action to exempt any Person (other than Parent or any of its Affiliates and other than in connection with an Acquisition Agreement following a Subsequent Determination) from the restrictions on “control share acquisitions” contained in the Maryland Control Share Acquisition Act, as amended (or any similar provisions of the MRL) or otherwise cause such restrictions not to apply.
Appears in 1 contract
Sources: Asset Purchase Agreement (Management Network Group Inc)
No Solicitations. (a) From the date of Until such date, if any, as this Agreement until is terminated pursuant to Article XIV (the Effective Time“Termination Date”), the Company Seller or Shareholders will not and the Operating Partnership shall will not permit and will instruct their respective Affiliates, directors, officers, employees, consultants, contractors, representatives, agents or advisors of Seller to not, and shall not authorize without the prior written consent of Buyer: directly or permit indirectly or any Person retained by any of the Company Subsidiaries, foregoing) solicit or any of its or their officers, trustees, directors, partners, Affiliates or employees or any investment banker, financial advisor, attorney, accountant, agent or other representative retained by it or any of its Subsidiaries (collectively, the “Company Representatives”), directly or indirectly, to (i) solicit, initiate or knowingly encourage or knowingly facilitate (including by way of furnishing information) any inquiries), proposals or offers or take any other efforts action to facilitate, any inquiries or attempts that constitute or that reasonably may be expected to lead to, a Competing Proposal or (ii) initiate or participate in the making of any discussions or negotiations (other than to seek clarifications with respect to the Competing Proposal) regardingproposal which constitutes, or that reasonably may be expected to lead to, a Competing Proposal or approve or recommend, or publicly propose to approve or recommend, a Competing Proposal or enter into any merger agreement, letter of intent, agreement in principle, share purchase agreement, asset purchase agreement or share exchange agreement, option agreement or other similar agreement relating to a Competing Proposal, or enter into any agreement or agreement in principle requiring the Company or the Operating Partnership to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder or resolve, propose or agree to do any of the foregoing, except as contemplated in Section 6.5(d). Without limiting the foregoing, the Company shall be responsible for any failure on the part of its Company Representatives to comply with this Section 6.5.
(b) Any other provision of this Agreement notwithstanding, at any time prior to the receipt of the Company Shareholder Approval, if the Company receives a bona fide written Competing Proposal from a third party (which was not solicited, initiated, encouraged or facilitated in violation of Section 6.5(a)) after the date hereof, the Company (x) may furnish, or cause to be furnished, non-public information with respect to the Company and the Company Subsidiaries to the Person who made such Competing Proposal and to its financing sources and Persons or entities working in concert with it (collectively, a “Third Party”), and (y) may participate in discussions and negotiations regarding such Competing Proposal, if, in the case of either clause (x) or (y): (A) prior to taking such action, the Company enters into a confidentiality agreement with the Person who made such Competing Proposal with respect to such Competing Proposal that is substantially similar (except for the absence of standstill provisions) to the Confidentiality Agreement dated as of July 5, 2007 between the Company and Parent (the “Confidentiality Agreement”), and (B) the Company Board determines in good faith, after consultation with its outside legal counsel and independent financial advisors, that such Competing Proposal is, or is reasonably likely to lead to, a Superior Proposal.
(c) The Company and the Operating Partnership shall provide prompt (within twenty-four (24) hours following receipt thereof) oral and written notice to Parent of (i) the receipt of any Competing Proposal, or any material modification or amendment to any Competing Proposal, by the Company, the Operating Partnership, any Company Subsidiary or any Company Representative, (ii) a copy of any documents or agreements provided in contemplation of such Competing Proposal (including any amendments, supplements or modifications thereto but excluding any financing documents or agreements it is not permitted to deliver as a result of confidentiality restrictions), and (iii) the identity of such Person or entity making any such Competing Proposal. The Company and the Operating Partnership shall keep Parent reasonably informed on a current basis, to the extent reasonably practicable, but in any event as promptly as practicable, of the status and material details (including any change to the material terms and conditions) of any such Competing Proposal. The Company and the Operating Partnership shall not, and shall cause each of the Company Subsidiaries not to, enter into any confidentiality agreement with any Person subsequent to the date hereof which prohibits the Company or the Operating Partnership from providing such information to Parent.
(d) Subject to this paragraph (d) and to Section 8.1(e), neither the Company Board nor any committee of the Company Board may (i) withdraw, qualify or modify or propose publicly to withdraw, qualify or modify, in each case, in a manner adverse to Parent, the Company Recommendation, or the approval or recommendation of any committee of the Company Board of the Merger or of any other transactions contemplated hereby, (ii) approve, recommend or endorse, or propose publicly to approve, recommend or endorse, a Competing Proposal (any action described in clauses (i) or (ii) being referred to as an “Adverse Recommendation Change”, it being agreed that the taking of any of the actions contemplated by Section 6.5(b), (c) or (f) shall not constitute, or be deemed to constitute, an Adverse Recommendation Change) or (iii) authorize or permit the Company or any of the Company Subsidiaries to enter into any agreement, arrangement or understanding (each, an “Acquisition Agreement”) contemplating, or that could reasonably be expected to lead to, any proposal to (a) buy, or otherwise dispose of, any portion of the Assets or (b) regarding any acquisition of Seller, including without limitation any acquisition of any material portion of the assets of Seller (each, a Competing Proposal “Third Party Acquisition”). Seller and Shareholders agree that any such actions (other than a confidentiality agreement negotiations with Buyer) in compliance with Section 6.5(b)). Notwithstanding the foregoing, at any time prior to receipt progress as of the Company Shareholder Approvaldate of this Agreement will be suspended through the Termination Date and that, the Company Board in no event, will Seller or a committee of the Company Board may (1) make an Adverse Recommendation Change for reasons not related Shareholders accept, agree to the receipt of a Competing Proposal if the Company Board determines in good faith after consultation with its independent financial advisors and outside legal counsel, that failure to take enter or otherwise enter into any agreement concerning any such action would be inconsistent with the directors’ duties to the Company or its stockholders under applicable Law or (2) in response to a bona fide written Competing Proposal (which was not solicited, initiated, encouraged or facilitated in violation of Section 6.5(a)) made after Third Party Acquisition transaction from the date hereof take an action referred through the Termination Date. Seller or Shareholders will notify Buyer in writing immediately after receipt by Seller or Shareholder (or any of their respective Affiliates, directors, officers, employees, consultants, contractors, representatives, agents or advisors) of any unsolicited offers or inquiries regarding a Third Party Acquisition. Such notice to Buyer will indicate in clause (i), (ii) or (iii) above and, in reasonable detail the case identity of clause (iii), terminate this Agreement in accordance with Section 8.1(e) if, after consultation with its independent financial advisors the Person seeking a Third Party Acquisition and outside legal counsel, the Company Board determines in good faith that such Competing Proposal constitutes a Superior Proposal (a “Subsequent Determination”); provided, however, that such actions may only be taken at a time that is after (I) the third (3rd) Business Day following Parent’s receipt of written notice from the Company that the Company Board is prepared to take such action, and (II) at the end of such period, the Company Board determines in good faith, after taking into account all amendments or revisions committed to by Parent and after consultation with its independent financial advisors and outside legal counsel, that such Competing Proposal remains a Superior Proposal relative to the Merger, as supplemented by any Counterproposal. Any such written notice shall specify the material terms and conditions of such applicable Competing Proposal, include the most current version of any Acquisition Agreement (including any amendments, supplements or modifications thereto), identify the person making such Competing Proposal and state that the Company Board otherwise intends to make a Subsequent Determination (subject to compliance with this subsection (d)). During any such three Business Day period, Parent shall be entitled to deliver to the Company a counterproposal to such Competing Proposal (a “Counterproposal”). For the avoidance of doubt, the parties hereto acknowledge and agree that any amendment to the financial terms or any other material amendment to any material term of a Competing Proposal which amendment affects the determination of whether the Competing Proposal is a Superior Proposal to any Counterproposal shall be treated as a new Competing Proposal for the purposes of this Section 6.5(d) (requiring a new written notice by the Company and a new three Business Day period). For purposes of clarification, the statement by the Company that it has received a Competing Proposal, that its Board will consider such Competing Proposal and that its Board continues to recommend this Agreement pending such consideration shall not be deemed an Adverse Recommendation Changethereof.
(e) Upon execution of this Agreement, the Company, the Operating Partnership and the Company Subsidiaries shall cease immediately and cause to be terminated any and all existing activities, discussions, solicitations or negotiations with any parties conducted heretofore with respect to a Competing Proposal by or on behalf of the Company, the Operating Partnership or any of the Company Representatives. The Company shall use its reasonable best efforts to cause (including by written request) each Person with whom it has executed a confidentiality agreement within the twelve months prior to the date hereof in connection with its consideration of any Competing Proposal to return or destroy all confidential or other non-public information heretofore furnished to such Person by or on behalf of the Company, the Operating Partnership or any of the Company Representatives.
(f) Any other provision of this Agreement notwithstanding, the Company Board may at any time take and disclose to its holders of Company Common Shares a position contemplated by Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act, may issue a stop, look and listen announcement and may make any disclosure required by Rule 14a-9 promulgated under the Exchange Act or Item 1012(a) of Regulation M-A; provided, however, that neither the Company nor the Company Board shall be permitted to recommend a Competing Proposal which is not a Superior Proposal; provided, further, that, for the avoidance of doubt, any public statements by the Company commenting on the merits of a Competing Proposal shall be an Adverse Recommendation Change other than (A) a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) of the Exchange Act, (B) an express rejection of a Competing Proposal or (C) an express reaffirmation of the Company Recommendation to its stockholders in favor of the Mergers.
(g) The Company shall not take any action to exempt any Person (other than Parent or any of its Affiliates and other than in connection with an Acquisition Agreement following a Subsequent Determination) from the restrictions on “control share acquisitions” contained in the Maryland Control Share Acquisition Act, as amended (or any similar provisions of the MRL) or otherwise cause such restrictions not to apply.
Appears in 1 contract
No Solicitations. (a) From the date of this Agreement until the Effective Time, the The Company and the Operating Partnership shall not, and nor shall not it permit any of its subsidiaries to, directly or indirectly, through any officer, director, employee or agent, initiate, solicit or knowingly encourage (including by way of furnishing information or assistance), or take any other action to facilitate knowingly, any inquiries or the making of any proposal that constitutes, or would reasonably be expected to lead to, any Competing Transaction, or enter into or maintain or continue discussions or negotiate with any person in furtherance of such inquiries or to obtain a Competing Transaction, or agree to or endorse any Competing Transaction, or authorize or permit any of the officers, directors or employees of the Company Subsidiaries, or any of its or their officers, trustees, directors, partners, Affiliates or employees subsidiaries or any investment banker, financial advisor, attorney, accountant, agent accountant or other representative retained by it or any of its Subsidiaries (collectively, the “Company Representatives”), directly or indirectly, to (i) solicit, initiate or knowingly encourage or knowingly facilitate (including by way of furnishing information) any inquiries, proposals or offers or any other efforts or attempts that constitute or that reasonably may be expected to lead to, a Competing Proposal or (ii) initiate or participate in any discussions or negotiations (other than to seek clarifications with respect to the Competing Proposal) regarding, or that reasonably may be expected to lead to, a Competing Proposal or approve or recommend, or publicly propose to approve or recommend, a Competing Proposal or enter into any merger agreement, letter of intent, agreement in principle, share purchase agreement, asset purchase agreement or share exchange agreement, option agreement or other similar agreement relating to a Competing Proposal, or enter into any agreement or agreement in principle requiring the Company or the Operating Partnership to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder or resolve, propose or agree to do any of the foregoing, except as contemplated in Section 6.5(d). Without limiting the foregoing, the Company shall be responsible for any failure on the part of its Company Representatives to comply with this Section 6.5.
(b) Any other provision of this Agreement notwithstanding, at any time prior to the receipt of the Company Shareholder Approval, if the Company receives a bona fide written Competing Proposal from a third party (which was not solicited, initiated, encouraged or facilitated in violation of Section 6.5(a)) after the date hereof, the Company (x) may furnish, or cause to be furnished, non-public information with respect to the Company and the Company Subsidiaries to the Person who made such Competing Proposal and to its financing sources and Persons or entities working in concert with it (collectively, a “Third Party”), and (y) may participate in discussions and negotiations regarding such Competing Proposal, if, in the case of either clause (x) or (y): (A) prior to taking such action, the Company enters into a confidentiality agreement with the Person who made such Competing Proposal with respect to such Competing Proposal that is substantially similar (except for the absence of standstill provisions) to the Confidentiality Agreement dated as of July 5, 2007 between the Company and Parent (the “Confidentiality Agreement”), and (B) the Company Board determines in good faith, after consultation with its outside legal counsel and independent financial advisors, that such Competing Proposal is, or is reasonably likely to lead to, a Superior Proposal.
(c) The Company and the Operating Partnership shall provide prompt (within twenty-four (24) hours following receipt thereof) oral and written notice to Parent of (i) the receipt of any Competing Proposal, or any material modification or amendment to any Competing Proposal, by the Company, the Operating Partnership, any Company Subsidiary or any Company Representative, (ii) a copy of any documents or agreements provided in contemplation of such Competing Proposal (including any amendments, supplements or modifications thereto but excluding any financing documents or agreements it is not permitted to deliver as a result of confidentiality restrictions), and (iii) the identity of such Person or entity making any such Competing Proposal. The Company and the Operating Partnership shall keep Parent reasonably informed on a current basis, to the extent reasonably practicable, but in any event as promptly as practicable, of the status and material details (including any change to the material terms and conditions) of any such Competing Proposal. The Company and the Operating Partnership shall not, and shall cause each of the Company Subsidiaries not to, enter into any confidentiality agreement with any Person subsequent to the date hereof which prohibits the Company or the Operating Partnership from providing such information to Parent.
(d) Subject to this paragraph (d) and to Section 8.1(e), neither the Company Board nor any committee of the Company Board may (i) withdraw, qualify or modify or propose publicly to withdraw, qualify or modify, in each case, in a manner adverse to Parent, the Company Recommendation, or the approval or recommendation of any committee of the Company Board of the Merger or of any other transactions contemplated hereby, (ii) approve, recommend or endorse, or propose publicly to approve, recommend or endorse, a Competing Proposal (any action described in clauses (i) or (ii) being referred to as an “Adverse Recommendation Change”, it being agreed that the taking of any of the actions contemplated by Section 6.5(b), (c) or (f) shall not constitute, or be deemed to constitute, an Adverse Recommendation Change) or (iii) authorize or permit the Company or any of its subsidiaries to take any such action. The Company shall notify Parent in writing (as promptly as practicable) if any written or oral request for information or proposal relating to a Competing Transaction is made and shall keep Parent promptly advised of all such requests and proposals, and shall provide a copy of any written proposals or requests and a summary of all oral proposals or requests. Nothing contained in this Section 4.1(e) shall prohibit the Company Subsidiaries to enter into any agreement, arrangement or understanding from (each, an “Acquisition Agreement”i) contemplatingfurnishing information to, or entering into discussions or negotiations with, any person that could reasonably be expected makes an unsolicited written, bona fide proposal to lead toacquire it pursuant to a merger, a Competing Proposal consolidation, share exchange, business combination, tender or exchange offer or other similar transaction, if, (other than a confidentiality agreement in compliance with Section 6.5(b)). Notwithstanding A) the foregoing, at any time prior to receipt of the Company Shareholder Approval, the Company Board or a committee of the Company Board may (1) make an Adverse Recommendation Change for reasons not related to the receipt of a Competing Proposal if the Company Board determines in good faith after consultation with its independent financial advisors and outside legal counsel, that failure to take such action would be inconsistent with the directors’ Board of Directors' fiduciary duties to the Company or its Company's stockholders under applicable Law law, and (B) prior to furnishing such information to, or (2) in response to a bona fide written Competing Proposal (which was not solicitedentering into discussions or negotiations with, initiated, encouraged or facilitated in violation of Section 6.5(a)) made after the date hereof take an action referred to in clause (i), (ii) or (iii) above and, in the case of clause (iii), terminate this Agreement in accordance with Section 8.1(e) if, after consultation with its independent financial advisors and outside legal counselsuch person, the Company Board determines in good faith (x) provides reasonable notice to Parent to the effect that it is furnishing information to, or entering into discussions or negotiations with, such Competing Proposal constitutes a Superior Proposal (a “Subsequent Determination”); provided, however, that such actions may only be taken at a time that is after (I) the third (3rd) Business Day following Parent’s receipt of written notice from the Company that the Company Board is prepared to take such action, person and (IIy) at the end of receives from such period, the Company Board determines in good faith, after taking into account all amendments or revisions committed to by Parent and after consultation with its independent financial advisors and outside legal counsel, that such Competing Proposal remains a Superior Proposal relative to the Merger, as supplemented by any Counterproposal. Any such written notice shall specify the material terms and conditions of such applicable Competing Proposal, include the most current version of any Acquisition Agreement (including any amendments, supplements or modifications thereto), identify the person making such Competing Proposal and state that the Company Board otherwise intends to make a Subsequent Determination (subject to compliance with this subsection (d)). During any such three Business Day period, Parent shall be entitled to deliver an executed confidentiality agreement no less favorable to the Company a counterproposal to such Competing Proposal (a “Counterproposal”). For than the avoidance of doubt, the parties hereto acknowledge and agree that any amendment to the financial terms or any other material amendment to any material term of a Competing Proposal which amendment affects the determination of whether the Competing Proposal is a Superior Proposal to any Counterproposal shall be treated as a new Competing Proposal for the purposes of this Section 6.5(d) (requiring a new written notice by the Company and a new three Business Day period). For purposes of clarification, the statement by the Company that it has received a Competing Proposal, that its Board will consider such Competing Proposal and that its Board continues to recommend this Confidentiality Agreement pending such consideration shall not be deemed an Adverse Recommendation Change.
(e) Upon execution of this Agreement, the Company, the Operating Partnership between Parent and the Company Subsidiaries shall cease immediately and cause to be terminated any and all existing activitiesIndependent Advisor, discussions, solicitations or negotiations with any parties conducted heretofore with respect to a Competing Proposal by or on behalf of the Company, dated June 4, 1999 (the Operating Partnership or any of the Company Representatives. The Company shall use its reasonable best efforts to cause "Confidentiality Agreement"), (including by written requestii) each Person complying with whom it has executed a confidentiality agreement within the twelve months prior to the date hereof in connection with its consideration of any Competing Proposal to return or destroy all confidential or other non-public information heretofore furnished to such Person by or on behalf of the Company, the Operating Partnership or any of the Company Representatives.
(f) Any other provision of this Agreement notwithstanding, the Company Board may at any time take and disclose to its holders of Company Common Shares a position contemplated by Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act, may issue a stop, look and listen announcement and may make any disclosure required by Rule 14a-9 14e-2 promulgated under the Exchange Act with regard to a tender or Item 1012(aexchange offer, or (iii) of Regulation M-A; providedfailing to make or withdrawing or modifying its recommendation referred to in Section 5.2, howeveror recommending an unsolicited, that neither bona fide proposal to acquire the Company nor pursuant to a merger, consolidation, share exchange, business combination, tender or exchange offer or other similar transaction, following the receipt of such a proposal, if the failure to take such action would be inconsistent with the Board of Directors' fiduciary duties to the Company's stockholders under applicable law. In addition, if the Company Board proposes to enter into an agreement with respect to any Competing Transaction, it shall concurrently with entering into such agreement pay, or cause to be permitted paid, to recommend a Competing Proposal which is not a Superior Proposal; provided, further, that, for the avoidance of doubt, Parent any public statements by amounts due to Parent from the Company commenting on the merits of a pursuant to Section 7.3. As used in this Agreement, "Competing Proposal Transaction" shall be an Adverse Recommendation Change other than (A) a “stop, look and listen” or similar communication mean any of the type contemplated by Rule 14d-9(f) of the Exchange Act, (B) an express rejection of a Competing Proposal or (C) an express reaffirmation of the Company Recommendation to its stockholders in favor of the Mergers.
(g) The Company shall not take any action to exempt any Person following (other than Parent --------------------- the transactions contemplated by this Agreement) involving the Company or any of its Affiliates subsidiaries: (i) any merger, consolidation, share exchange, exchange offer, business combination, recapitalization, liquidation, dissolution or other similar transaction involving such person; (ii) any sale, lease, exchange, mortgage, pledge, transfer or other disposition of assets representing 20% or more of the total assets of such person and other than its subsidiaries, in a single transaction or series of transactions; (iii) any tender offer or exchange offer for 20% or more of the outstanding shares of capital stock of such person or the filing of a registration statement under the Securities Act in connection therewith; (iv) any person or group having acquired beneficial ownership of 15% or more of the outstanding shares of capital stock of such person with an Acquisition Agreement following respect to Company Common Stock); or (v) any public announcement of a Subsequent Determination) from proposal, plan or intention to do any of the restrictions on “control share acquisitions” contained in the Maryland Control Share Acquisition Act, as amended (foregoing or any similar provisions agreement to engage in any of the MRL) or otherwise cause such restrictions not to applyforegoing.
Appears in 1 contract
Sources: Merger Agreement (Carrols Corp)
No Solicitations. (a) From The Company acknowledges that since April 1, 2003 it has complied with the date provisions of this Agreement until the Effective Time, the Exclusivity Agreement. The Company and the Operating Partnership shall not, not and shall not authorize or permit any of the Company Subsidiaries, or any of its or their officers, trustees, directors, partners, Affiliates or employees or any investment banker, financial advisor, attorney, accountant, agent or other representative retained by it or any of cause its Subsidiaries (collectively, the “Company Representatives”)to not, directly or indirectly, to through any officer, director, employee, advisor, representative, agent or otherwise (including for greater certainty any investment banker, lawyer or accountant), (i) make, solicit, initiate or knowingly initiate, encourage or knowingly otherwise facilitate (including by way of furnishing informationinformation or entering into any form of agreement, arrangement or understanding) any inquiries, inquiries from or submissions of proposals or offers from any other Person, company, partnership or other business organization whatsoever (including any of its officers or employees) relating to any liquidation, dissolution, recapitalization, merger, amalgamation or acquisition or purchase of all or a material portion of the assets of, or any equity interest (including Shares) in, the Company or any of the Subsidiaries or other similar transaction or business combination involving the Company or any of the Subsidiaries (any of such foregoing inquiries or proposals being referred to herein as an "ACQUISITION PROPOSAL"); (ii) participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to or otherwise co-operate in any way with, respond to, assist or participate in, facilitate or encourage any effort or attempt by any other Person to do or seek to do any of the foregoing; or (iii) approve or recommend any Acquisition Proposal. Notwithstanding the preceding sentence, nothing contained in this subsection 5.2(a) or any other efforts provision of this Agreement shall prevent the Board of Directors from considering, participating in any discussions or attempts negotiations with respect to, co-operating in any way with, entering into a confidentiality agreement and providing information pursuant to Section 5.2(d) regarding or, subject to compliance with Section 5.3, entering into any agreement, arrangement or understanding in respect of, an unsolicited bona fide written Acquisition Proposal (i) that constitute is not subject to a financing contingency and in respect of which adequate arrangements have been made to ensure that the required funds will be available to effect payment in full for all Shares, (ii) that did not otherwise result from a breach of this Section 5.2, and (iii) that the Board of Directors has determined in good faith (after consultation with its financial advisors and with outside counsel) is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of such proposal and the party making the proposal and, would, if consummated in accordance with its terms as proposed, result in a transaction which is more favourable to Shareholders from a financial point of view than the Offer (a "SUPERIOR PROPOSAL").
(b) The Company acknowledges that since April 1, 2003 it has complied with the provisions of the Exclusivity Agreement and shall and shall cause the officers, directors, employees, representatives and agents of the Company and the Subsidiaries to immediately cease and cause to be terminated, any existing discussions or negotiations with any parties (other than Parent and the Offeror) with respect to any proposal that constitutes, or may reasonably may be expected to lead to, an Acquisition Proposal. The Company agrees not to release any third party from any confidentiality or standstill agreement to which the Company and such third party are parties, or waive any provision thereunder. The Company shall immediately request the return or destruction of all information provided to any third parties who have entered into a Competing confidentiality agreement with the Company relating to any potential Acquisition Proposal and shall use all reasonable efforts to ensure that such requests are honoured.
(c) The Company shall immediately provide notice to Parent of any bona fide Acquisition Proposal or (ii) initiate or participate in any discussions or negotiations (other than to seek clarifications with respect to the Competing Proposal) regarding, or that reasonably may be expected to lead to, a Competing Proposal or approve or recommend, or publicly propose to approve or recommend, a Competing Proposal or enter into any merger agreement, letter of intent, agreement in principle, share purchase agreement, asset purchase agreement or share exchange agreement, option agreement or other similar agreement request for non-public information relating to a Competing Proposal, or enter into any agreement or agreement in principle requiring the Company or the Operating Partnership to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder or resolve, propose or agree to do any of the foregoingSubsidiaries in connection with such a bona fide Acquisition Proposal or for access to the properties, except books or records of the Company or any Subsidiary by any Person that informs the Company, any member of the Board of Directors or such Subsidiary that it is considering making, or has made, an Acquisition Proposal. Such notice to Parent shall be made from time to time upon a member of the Board of Directors or a senior officer becoming aware of such request or proposal, first immediately orally and then promptly in writing and shall indicate the identity of the Person making such proposal, inquiry or contact, all material terms thereof and such other details of the proposal, inquiry or contact known to the Company as contemplated in Section 6.5(d). Without limiting the foregoingOfferor may reasonably request.
(d) provided with a list of or copies of the information provided to such Person and is immediately provided with access to similar information to which such Person was provided.
(e) The Company shall ensure that the officers and directors of the Company and its Subsidiaries and any investment bankers or other advisors or representatives retained by the Company are aware of the provisions of this Section, and the Company shall be responsible for any failure on the part of its Company Representatives to comply with this Section 6.5.
(b) Any other provision of this Agreement notwithstanding, at any time prior to the receipt of the Company Shareholder Approval, if the Company receives a bona fide written Competing Proposal from a third party (which was not solicited, initiated, encouraged or facilitated in violation of Section 6.5(a)) after the date hereof, the Company (x) may furnish, or cause to be furnished, non-public information with respect to the Company and the Company Subsidiaries to the Person who made such Competing Proposal and to its financing sources and Persons or entities working in concert with it (collectively, a “Third Party”), and (y) may participate in discussions and negotiations regarding such Competing Proposal, if, in the case of either clause (x) or (y): (A) prior to taking such action, the Company enters into a confidentiality agreement with the Person who made such Competing Proposal with respect to such Competing Proposal that is substantially similar (except for the absence of standstill provisions) to the Confidentiality Agreement dated as of July 5, 2007 between the Company and Parent (the “Confidentiality Agreement”), and (B) the Company Board determines in good faith, after consultation with its outside legal counsel and independent financial advisors, that such Competing Proposal is, or is reasonably likely to lead to, a Superior Proposal.
(c) The Company and the Operating Partnership shall provide prompt (within twenty-four (24) hours following receipt thereof) oral and written notice to Parent of (i) the receipt of any Competing Proposal, or any material modification or amendment to any Competing Proposal, by the Company, the Operating Partnership, any Company Subsidiary or any Company Representative, (ii) a copy of any documents or agreements provided in contemplation of such Competing Proposal (including any amendments, supplements or modifications thereto but excluding any financing documents or agreements it is not permitted to deliver as a result of confidentiality restrictions), and (iii) the identity of such Person or entity making any such Competing Proposal. The Company and the Operating Partnership shall keep Parent reasonably informed on a current basis, to the extent reasonably practicable, but in any event as promptly as practicable, of the status and material details (including any change to the material terms and conditions) of any such Competing Proposal. The Company and the Operating Partnership shall not, and shall cause each of the Company Subsidiaries not to, enter into any confidentiality agreement with any Person subsequent to the date hereof which prohibits the Company or the Operating Partnership from providing such information to Parent.
(d) Subject to this paragraph (d) and to Section 8.1(e), neither the Company Board nor any committee of the Company Board may (i) withdraw, qualify or modify or propose publicly to withdraw, qualify or modify, in each case, in a manner adverse to Parent, the Company Recommendation, or the approval or recommendation of any committee of the Company Board of the Merger or of any other transactions contemplated hereby, (ii) approve, recommend or endorse, or propose publicly to approve, recommend or endorse, a Competing Proposal (any action described in clauses (i) or (ii) being referred to as an “Adverse Recommendation Change”, it being agreed that the taking of any of the actions contemplated by Section 6.5(b), (c) or (f) shall not constitute, or be deemed to constitute, an Adverse Recommendation Change) or (iii) authorize or permit the Company or any of the Company Subsidiaries to enter into any agreement, arrangement or understanding (each, an “Acquisition Agreement”) contemplating, or that could reasonably be expected to lead to, a Competing Proposal (other than a confidentiality agreement in compliance with Section 6.5(b)). Notwithstanding the foregoing, at any time prior to receipt of the Company Shareholder Approval, the Company Board or a committee of the Company Board may (1) make an Adverse Recommendation Change for reasons not related to the receipt of a Competing Proposal if the Company Board determines in good faith after consultation with its independent financial advisors and outside legal counsel, that failure to take such action would be inconsistent with the directors’ duties to the Company or its stockholders under applicable Law or (2) in response to a bona fide written Competing Proposal (which was not solicited, initiated, encouraged or facilitated in violation of Section 6.5(a)) made after the date hereof take an action referred to in clause (i), (ii) or (iii) above and, in the case of clause (iii), terminate this Agreement in accordance with Section 8.1(e) if, after consultation with its independent financial advisors and outside legal counsel, the Company Board determines in good faith that such Competing Proposal constitutes a Superior Proposal (a “Subsequent Determination”); provided, however, that such actions may only be taken at a time that is after (I) the third (3rd) Business Day following Parent’s receipt of written notice from the Company that the Company Board is prepared to take such action, and (II) at the end of such period, the Company Board determines in good faith, after taking into account all amendments or revisions committed to by Parent and after consultation with its independent financial advisors and outside legal counsel, that such Competing Proposal remains a Superior Proposal relative to the Merger, as supplemented by any Counterproposal. Any such written notice shall specify the material terms and conditions of such applicable Competing Proposal, include the most current version of any Acquisition Agreement (including any amendments, supplements or modifications thereto), identify the person making such Competing Proposal and state that the Company Board otherwise intends to make a Subsequent Determination (subject to compliance with this subsection (d)). During any such three Business Day period, Parent shall be entitled to deliver to the Company a counterproposal to such Competing Proposal (a “Counterproposal”). For the avoidance of doubt, the parties hereto acknowledge and agree that any amendment to the financial terms or any other material amendment to any material term of a Competing Proposal which amendment affects the determination of whether the Competing Proposal is a Superior Proposal to any Counterproposal shall be treated as a new Competing Proposal for the purposes breach of this Section 6.5(d) (requiring a new written notice 5.2 by the Company and a new three Business Day period). For purposes of clarificationsuch officers, the statement by the Company that it has received a Competing Proposaldirectors, that its Board will consider such Competing Proposal and that its Board continues to recommend this Agreement pending such consideration shall not be deemed an Adverse Recommendation Changeemployees, bankers, advisors or representatives.
(e) Upon execution of this Agreement, the Company, the Operating Partnership and the Company Subsidiaries shall cease immediately and cause to be terminated any and all existing activities, discussions, solicitations or negotiations with any parties conducted heretofore with respect to a Competing Proposal by or on behalf of the Company, the Operating Partnership or any of the Company Representatives. The Company shall use its reasonable best efforts to cause (including by written request) each Person with whom it has executed a confidentiality agreement within the twelve months prior to the date hereof in connection with its consideration of any Competing Proposal to return or destroy all confidential or other non-public information heretofore furnished to such Person by or on behalf of the Company, the Operating Partnership or any of the Company Representatives.
(f) Any other provision of this Agreement notwithstanding, the Company Board may at any time take and disclose to its holders of Company Common Shares a position contemplated by Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act, may issue a stop, look and listen announcement and may make any disclosure required by Rule 14a-9 promulgated under the Exchange Act or Item 1012(a) of Regulation M-A; provided, however, that neither the Company nor the Company Board shall be permitted to recommend a Competing Proposal which is not a Superior Proposal; provided, further, that, for the avoidance of doubt, any public statements by the Company commenting on the merits of a Competing Proposal shall be an Adverse Recommendation Change other than (A) a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) of the Exchange Act, (B) an express rejection of a Competing Proposal or (C) an express reaffirmation of the Company Recommendation to its stockholders in favor of the Mergers.
(g) The Company shall not take any action to exempt any Person (other than Parent or any of its Affiliates and other than in connection with an Acquisition Agreement following a Subsequent Determination) from the restrictions on “control share acquisitions” contained in the Maryland Control Share Acquisition Act, as amended (or any similar provisions of the MRL) or otherwise cause such restrictions not to apply.
Appears in 1 contract
No Solicitations. (a) From and after the date hereof, Seller, without the prior written consent of this Agreement until the Effective TimeBuyer, the Company and the Operating Partnership shall will not, and shall will not authorize or permit any of the Company Subsidiaries, its or any of its or their Subsidiaries' officers, trusteesemployees, directors, partners, Affiliates or employees or any investment banker, financial advisor, attorney, accountant, agent stockholders or other representative retained by it or any of its Subsidiaries (collectively, the “Company Representatives”)representatives to, directly or indirectly, to (i) solicit, initiate or knowingly encourage or knowingly facilitate (including by way of furnishing information) any inquiries, proposals or offers or take any other efforts action to facilitate knowingly any inquiries or attempts the making of any proposal that constitute constitutes or that could be reasonably may be expected to lead toto an Alternative Proposal from any Person, a Competing Proposal or (ii) initiate or participate engage in any discussions or negotiations (other than to seek clarifications with respect to the Competing Proposal) regarding, relating thereto or that reasonably may be expected to lead to, a Competing accept any Alternative Proposal or approve make or recommendauthorize any statement, recommendation or publicly propose to approve or recommendsolicitation in support of any Alternative Proposal; PROVIDED, a Competing Proposal or enter into HOWEVER, that notwithstanding any merger agreement, letter of intent, agreement in principle, share purchase agreement, asset purchase agreement or share exchange agreement, option agreement or other similar agreement relating to a Competing Proposal, or enter into any agreement or agreement in principle requiring the Company or the Operating Partnership to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder or resolve, propose or agree to do any of the foregoing, except as contemplated in Section 6.5(d). Without limiting the foregoing, the Company shall be responsible for any failure on the part of its Company Representatives to comply with this Section 6.5.
(b) Any other provision of this Agreement notwithstandinghereof, Seller may (a) at any time prior to the receipt of ▇▇▇▇ ▇▇▇▇▇▇'▇ stockholders shall have voted to approve this Agreement and the Company Shareholder Approvaltransactions contemplated hereby, if the Company receives a bona fide written Competing Proposal from engage in discussions or negotiations with a third party who (which was not solicitedwithout any solicitation, initiatedinitiation, encouraged encouragement, discussion or facilitated in violation negotiation, directly or indirectly, by or with Seller or any of Section 6.5(a)its Subsidiaries or any officer, employee, director, stockholder or other representative of Seller or any of its Subsidiaries after the date hereof) seeks to initiate such discussions or negotiations and may furnish such third party information concerning the Entertainment Companies if, and only to the extent that, (i) (x) such third party has first made, after the date hereof, an Alternative Proposal in writing the Company (x) may furnish, or cause terms of which reflect a superior transaction than the transactions contemplated by this Agreement and has demonstrated that the funds necessary for the Alternative Proposal are reasonably likely to be furnishedavailable (as determined in good faith in each case by Seller's Board of Directors after consultation with its financial advisors) and (y) Seller's Board of Directors shall have determined in good faith, non-public on the basis of advice of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ or other outside counsel of similar stature, that such action is necessary for the Board of Directors to comply with its fiduciary duties to stockholders under Applicable Law and (ii) prior to furnishing information to or entering into discussions or negotiations with such Person, Seller receives from such Person an executed confidentiality agreement in reasonably customary form and containing terms not in the aggregate materially more favorable to such Person than the terms contained in Section 6.02 or in any confidentiality agreement previously executed by Seller and Buyer or any of its Subsidiaries; or (b) comply with Rule 14e-2 promulgated under the Securities and Exchange Act of 1934 with regard to a tender or exchange offer. Seller shall immediately cease and terminate any existing solicitation, initiation, engagement, activity, discussion or negotiation with any Persons conducted heretofore by Seller or any officer, employee, director, stockholder or other representative of Seller or any of its Subsidiaries with respect to the Company foregoing. Seller shall not 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 the Company Subsidiaries to the another Person who made such Competing Proposal and has made, or who may reasonably be considered likely to its financing sources and Persons or entities working in concert with it (collectivelymake, a “Third Party”), and (y) may participate in discussions and negotiations regarding such Competing an Alternative Proposal, if, in the case unless its Board of either clause (x) or (y): (A) prior to taking such action, the Company enters into a confidentiality agreement with the Person who made such Competing Proposal with respect to such Competing Proposal that is substantially similar (except for the absence of standstill provisions) to the Confidentiality Agreement dated as of July 5, 2007 between the Company and Parent (the “Confidentiality Agreement”), and (B) the Company Board determines Directors shall determine in good faith, after consultation with its on the basis of the advice of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ or other outside legal counsel and independent financial advisorsof similar stature, that such Competing Proposal is, or action is reasonably likely necessary for the Board of Directors to lead to, a Superior Proposal.
(c) The Company comply with its fiduciary duties to stockholders under Applicable Law. Seller shall notify Buyer orally and the Operating Partnership shall provide prompt (within twenty-four (24) hours following receipt thereof) oral and written notice to Parent of (i) the receipt in writing of any Competing Proposalsuch inquiries (that are or appear to be serious or legitimate), offers or proposals (including the terms and conditions of any material modification such offer or amendment to any Competing Proposal, by the Companyproposal, the Operating Partnership, any Company Subsidiary or any Company Representative, (ii) identity of the Person making it and a copy of any documents or agreements provided in contemplation of such Competing Proposal (including any amendments, supplements or modifications thereto but excluding any financing documents or agreements it is not permitted to deliver as a result of confidentiality restrictionswritten Alternative Proposal), as promptly as practicable and (iii) the identity of such Person or entity making any such Competing Proposal. The Company and the Operating Partnership shall keep Parent reasonably informed on a current basis, to the extent reasonably practicable, but in any event as promptly as practicablewithin forty-eight (48) hours after the receipt thereof, shall keep Buyer informed of the status and material details (including any change to the material terms and conditions) of any such Competing Proposal. The Company and the Operating Partnership shall notinquiry, offer or proposal, and shall cause each give Buyer five (5) days advance written notice of the Company Subsidiaries not any agreement to be entered into with, or any information to be supplied to, enter into any confidentiality agreement with any Person subsequent to the date hereof which prohibits the Company or the Operating Partnership from providing such information to Parent.
(d) Subject to this paragraph (d) and to Section 8.1(e), neither the Company Board nor any committee of the Company Board may (i) withdraw, qualify or modify or propose publicly to withdraw, qualify or modify, in each case, in a manner adverse to Parent, the Company Recommendation, or the approval or recommendation of any committee of the Company Board of the Merger or of any other transactions contemplated hereby, (ii) approve, recommend or endorse, or propose publicly to approve, recommend or endorse, a Competing Proposal (any action described in clauses (i) or (ii) being referred to as an “Adverse Recommendation Change”, it being agreed that the taking of any of the actions contemplated by Section 6.5(b), (c) or (f) shall not constitute, or be deemed to constitute, an Adverse Recommendation Change) or (iii) authorize or permit the Company or any of the Company Subsidiaries to enter into any agreement, arrangement or understanding (each, an “Acquisition Agreement”) contemplating, or that could reasonably be expected to lead to, a Competing Proposal (other than a confidentiality agreement in compliance with Section 6.5(b)). Notwithstanding the foregoing, at any time prior to receipt of the Company Shareholder Approval, the Company Board or a committee of the Company Board may (1) make an Adverse Recommendation Change for reasons not related to the receipt of a Competing Proposal if the Company Board determines in good faith after consultation with its independent financial advisors and outside legal counsel, that failure to take such action would be inconsistent with the directors’ duties to the Company or its stockholders under applicable Law or (2) in response to a bona fide written Competing Proposal (which was not solicited, initiated, encouraged or facilitated in violation of Section 6.5(a)) made after the date hereof take an action referred to in clause (i), (ii) or (iii) above and, in the case of clause (iii), terminate this Agreement in accordance with Section 8.1(e) if, after consultation with its independent financial advisors and outside legal counsel, the Company Board determines in good faith that such Competing Proposal constitutes a Superior Proposal (a “Subsequent Determination”); provided, however, that such actions may only be taken at a time that is after (I) the third (3rd) Business Day following Parent’s receipt of written notice from the Company that the Company Board is prepared to take such action, and (II) at the end of such period, the Company Board determines in good faith, after taking into account all amendments or revisions committed to by Parent and after consultation with its independent financial advisors and outside legal counsel, that such Competing Proposal remains a Superior Proposal relative to the Merger, as supplemented by any Counterproposal. Any such written notice shall specify the material terms and conditions of such applicable Competing Proposal, include the most current version of any Acquisition Agreement (including any amendments, supplements or modifications thereto), identify the person making such Competing Proposal and state that the Company Board otherwise intends to make a Subsequent Determination (subject to compliance with this subsection (d)). During any such three Business Day periodinquiry, Parent shall be entitled to deliver to the Company a counterproposal to such Competing Proposal (a “Counterproposal”). For the avoidance of doubt, the parties hereto acknowledge and agree that any amendment to the financial terms offer or any other material amendment to any material term of a Competing Proposal which amendment affects the determination of whether the Competing Proposal is a Superior Proposal to any Counterproposal shall be treated as a new Competing Proposal for the purposes of this Section 6.5(d) (requiring a new written notice by the Company and a new three Business Day period). For purposes of clarification, the statement by the Company that it has received a Competing Proposal, that its Board will consider such Competing Proposal and that its Board continues to recommend this Agreement pending such consideration shall not be deemed an Adverse Recommendation Changeproposal.
(e) Upon execution of this Agreement, the Company, the Operating Partnership and the Company Subsidiaries shall cease immediately and cause to be terminated any and all existing activities, discussions, solicitations or negotiations with any parties conducted heretofore with respect to a Competing Proposal by or on behalf of the Company, the Operating Partnership or any of the Company Representatives. The Company shall use its reasonable best efforts to cause (including by written request) each Person with whom it has executed a confidentiality agreement within the twelve months prior to the date hereof in connection with its consideration of any Competing Proposal to return or destroy all confidential or other non-public information heretofore furnished to such Person by or on behalf of the Company, the Operating Partnership or any of the Company Representatives.
(f) Any other provision of this Agreement notwithstanding, the Company Board may at any time take and disclose to its holders of Company Common Shares a position contemplated by Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act, may issue a stop, look and listen announcement and may make any disclosure required by Rule 14a-9 promulgated under the Exchange Act or Item 1012(a) of Regulation M-A; provided, however, that neither the Company nor the Company Board shall be permitted to recommend a Competing Proposal which is not a Superior Proposal; provided, further, that, for the avoidance of doubt, any public statements by the Company commenting on the merits of a Competing Proposal shall be an Adverse Recommendation Change other than (A) a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) of the Exchange Act, (B) an express rejection of a Competing Proposal or (C) an express reaffirmation of the Company Recommendation to its stockholders in favor of the Mergers.
(g) The Company shall not take any action to exempt any Person (other than Parent or any of its Affiliates and other than in connection with an Acquisition Agreement following a Subsequent Determination) from the restrictions on “control share acquisitions” contained in the Maryland Control Share Acquisition Act, as amended (or any similar provisions of the MRL) or otherwise cause such restrictions not to apply.
Appears in 1 contract
Sources: Stock Purchase Agreement (Metromedia International Group Inc)
No Solicitations. (a) From the date of this Agreement until the Effective Time, the Company and the Operating Partnership Carlyle shall not, and nor shall not it permit any of its subsidiaries to, directly or indirectly, through any officer, director, employee or agent, initiate, solicit or knowingly encourage (including by way of furnishing information or assistance), or take any other action to facilitate knowingly, any inquiries or the making of any proposal that constitutes, or would reasonably be expected to lead to, any Competing Transaction, or enter into or maintain or continue discussions or negotiate with any person in furtherance of such inquiries or to obtain a Competing Transaction, or agree to or endorse any Competing Transaction, or authorize or permit any of the Company Subsidiariesofficers, directors or employees of Carlyle or any of its or their officers, trustees, directors, partners, Affiliates or employees subsidiaries or any investment banker, financial advisor, attorney, accountant, agent accountant or other representative retained by it Carlyle or any of its Subsidiaries subsidiaries to take any such action. Carlyle shall notify Levcor in writing (collectively, the “Company Representatives”), directly as promptly as practicable) if any written or indirectly, to (i) solicit, initiate oral request for information or knowingly encourage or knowingly facilitate (including by way of furnishing information) any inquiries, proposals or offers or any other efforts or attempts that constitute or that reasonably may be expected to lead to, a Competing Proposal or (ii) initiate or participate in any discussions or negotiations (other than to seek clarifications with respect to the Competing Proposal) regarding, or that reasonably may be expected to lead to, a Competing Proposal or approve or recommend, or publicly propose to approve or recommend, a Competing Proposal or enter into any merger agreement, letter of intent, agreement in principle, share purchase agreement, asset purchase agreement or share exchange agreement, option agreement or other similar agreement proposal relating to a Competing Proposal, or enter into any agreement or agreement in principle requiring the Company or the Operating Partnership to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder or resolve, propose or agree to do any Transaction is made and shall keep Levcor promptly advised of the foregoing, except as contemplated in Section 6.5(d). Without limiting the foregoing, the Company shall be responsible for any failure on the part of its Company Representatives to comply with this Section 6.5.
(b) Any other provision of this Agreement notwithstanding, at any time prior to the receipt of the Company Shareholder Approval, if the Company receives a bona fide written Competing Proposal from a third party (which was not solicited, initiated, encouraged or facilitated in violation of Section 6.5(a)) after the date hereof, the Company (x) may furnish, or cause to be furnished, non-public information with respect to the Company all such requests and the Company Subsidiaries to the Person who made such Competing Proposal and to its financing sources and Persons or entities working in concert with it (collectively, a “Third Party”)proposals, and (y) may participate in discussions and negotiations regarding such Competing Proposal, if, in the case of either clause (x) or (y): (A) prior to taking such action, the Company enters into a confidentiality agreement with the Person who made such Competing Proposal with respect to such Competing Proposal that is substantially similar (except for the absence of standstill provisions) to the Confidentiality Agreement dated as of July 5, 2007 between the Company and Parent (the “Confidentiality Agreement”), and (B) the Company Board determines in good faith, after consultation with its outside legal counsel and independent financial advisors, that such Competing Proposal is, or is reasonably likely to lead to, a Superior Proposal.
(c) The Company and the Operating Partnership shall provide prompt (within twenty-four (24) hours following receipt thereof) oral and written notice to Parent of (i) the receipt of any Competing Proposal, or any material modification or amendment to any Competing Proposal, by the Company, the Operating Partnership, any Company Subsidiary or any Company Representative, (ii) a copy of any documents written proposals or agreements provided requests and a summary of all oral proposals or requests. Nothing contained in contemplation of such Competing Proposal (including any amendments, supplements or modifications thereto but excluding any financing documents or agreements it is not permitted to deliver as a result of confidentiality restrictions), and (iiithis Section 4.1(e) the identity of such Person or entity making any such Competing Proposal. The Company and the Operating Partnership shall keep Parent reasonably informed on a current basis, to the extent reasonably practicable, but in any event as promptly as practicable, of the status and material details (including any change to the material terms and conditions) of any such Competing Proposal. The Company and the Operating Partnership shall not, and shall cause each of the Company Subsidiaries not to, enter into any confidentiality agreement with any Person subsequent to the date hereof which prohibits the Company or the Operating Partnership prohibit Carlyle from providing such information to Parent.
(d) Subject to this paragraph (d) and to Section 8.1(e), neither the Company Board nor any committee of the Company Board may (i) withdraw, qualify or modify or propose publicly to withdraw, qualify or modify, in each case, in a manner adverse to Parent, the Company Recommendationfurnishing information to, or the approval entering into discussions or recommendation of negotiations with, any committee of the Company person that makes an unsolicited written, bona fide proposal to acquire it pursuant to a merger, consolidation, share exchange, business combination, tender or exchange offer or other similar transaction, if, (A) Carlyle's Board of the Merger or of any other transactions contemplated hereby, (ii) approve, recommend or endorse, or propose publicly to approve, recommend or endorse, a Competing Proposal (any action described in clauses (i) or (ii) being referred to as an “Adverse Recommendation Change”, it being agreed that the taking of any of the actions contemplated by Section 6.5(b), (c) or (f) shall not constitute, or be deemed to constitute, an Adverse Recommendation Change) or (iii) authorize or permit the Company or any of the Company Subsidiaries to enter into any agreement, arrangement or understanding (each, an “Acquisition Agreement”) contemplating, or that could reasonably be expected to lead to, a Competing Proposal (other than a confidentiality agreement in compliance with Section 6.5(b)). Notwithstanding the foregoing, at any time prior to receipt of the Company Shareholder Approval, the Company Board or a committee of the Company Board may (1) make an Adverse Recommendation Change for reasons not related to the receipt of a Competing Proposal if the Company Board Directors determines in good faith after consultation with its independent financial advisors and outside legal counsel, that there is a reasonable probability that the failure to take such action would be inconsistent with the directors’ Board of Directors' fiduciary duties to the Company or its Carlyle's stockholders under applicable Law law, and (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person, Carlyle (2x) provides reasonable notice to Levcor to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person and (y) receives from such person an executed confidentiality agreement in response to a bona fide written Competing Proposal customary form (which was not solicited, initiated, encouraged or facilitated in violation of Section 6.5(a)) made after the date hereof take an action referred to in clause (i"Confidentiality Agreement"), (ii) complying with Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act with regard to a tender or exchange offer, or (iii) above andfailing to make or withdrawing or modifying its recommendation referred to in Section 5.2, in or recommending an unsolicited, bona fide proposal to acquire Carlyle pursuant to a merger, consolidation, share exchange, business combination, tender or exchange offer or other similar transaction, following the case receipt of clause (iii)such a proposal, terminate this Agreement in accordance with Section 8.1(e) if, after consultation with its independent financial advisors and outside legal counsel, the Company if Carlyle's Board of Directors determines in good faith that such Competing Proposal constitutes there is a Superior Proposal (a “Subsequent Determination”); provided, however, that such actions may only be taken at a time that is after (I) the third (3rd) Business Day following Parent’s receipt of written notice from the Company reasonable probability that the Company Board is prepared failure to take such actionaction would be inconsistent with the Board of Directors' fiduciary duties to Carlyle's stockholders under applicable law. In addition, and (II) at the end of such period, the Company Board determines in good faith, after taking if Carlyle proposes to enter into account all amendments or revisions committed to by Parent and after consultation an agreement with its independent financial advisors and outside legal counsel, that such Competing Proposal remains a Superior Proposal relative to the Merger, as supplemented by any Counterproposal. Any such written notice shall specify the material terms and conditions of such applicable Competing Proposal, include the most current version of any Acquisition Agreement (including any amendments, supplements or modifications thereto), identify the person making such Competing Proposal and state that the Company Board otherwise intends to make a Subsequent Determination (subject to compliance with this subsection (d)). During any such three Business Day period, Parent shall be entitled to deliver to the Company a counterproposal to such Competing Proposal (a “Counterproposal”). For the avoidance of doubt, the parties hereto acknowledge and agree that any amendment to the financial terms or any other material amendment respect to any material term of a Competing Proposal which amendment affects the determination of whether the Competing Proposal is a Superior Proposal to any Counterproposal Transaction, it shall be treated as a new Competing Proposal for the purposes of this Section 6.5(d) (requiring a new written notice by the Company and a new three Business Day period). For purposes of clarificationconcurrently with entering into such agreement pay, the statement by the Company that it has received a Competing Proposal, that its Board will consider such Competing Proposal and that its Board continues to recommend this Agreement pending such consideration shall not be deemed an Adverse Recommendation Change.
(e) Upon execution of this Agreement, the Company, the Operating Partnership and the Company Subsidiaries shall cease immediately and or cause to be terminated paid, to Levcor any and all existing activities, discussions, solicitations or negotiations with any parties conducted heretofore with respect amounts due to a Competing Proposal by or on behalf of the Company, the Operating Partnership or any of the Company Representatives. The Company shall use its reasonable best efforts Levcor from Carlyle pursuant to cause (including by written request) each Person with whom it has executed a confidentiality agreement within the twelve months prior to the date hereof in connection with its consideration of any Competing Proposal to return or destroy all confidential or other non-public information heretofore furnished to such Person by or on behalf of the Company, the Operating Partnership or any of the Company RepresentativesSection 7.3.
(f) Any other provision of this Agreement notwithstanding, the Company Board may at any time take and disclose to its holders of Company Common Shares a position contemplated by Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act, may issue a stop, look and listen announcement and may make any disclosure required by Rule 14a-9 promulgated under the Exchange Act or Item 1012(a) of Regulation M-A; provided, however, that neither the Company nor the Company Board shall be permitted to recommend a Competing Proposal which is not a Superior Proposal; provided, further, that, for the avoidance of doubt, any public statements by the Company commenting on the merits of a Competing Proposal shall be an Adverse Recommendation Change other than (A) a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) of the Exchange Act, (B) an express rejection of a Competing Proposal or (C) an express reaffirmation of the Company Recommendation to its stockholders in favor of the Mergers.
(g) The Company shall not take any action to exempt any Person (other than Parent or any of its Affiliates and other than in connection with an Acquisition Agreement following a Subsequent Determination) from the restrictions on “control share acquisitions” contained in the Maryland Control Share Acquisition Act, as amended (or any similar provisions of the MRL) or otherwise cause such restrictions not to apply.
Appears in 1 contract
No Solicitations. (a) From the date of this Agreement until the Effective TimeThe Company agrees that neither it, the Company and the Operating Partnership shall not, and shall not authorize or permit nor any Subsidiary of the Company SubsidiariesCompany, or nor any of its or its Subsidiaries officers and directors, shall, and that it shall instruct and use its commercially reasonable efforts to cause its and their other officers, trusteesemployees, directorsaccountants, partnersconsultants, Affiliates or employees or any investment bankerlegal counsel, financial advisor, attorney, accountant, agent or advisors and agents and other representative retained by it or any of its Subsidiaries representatives (collectively, the “Company Representatives”)) not to, directly or indirectly, to indirectly (i) knowingly solicit, initiate initiate, encourage, facilitate or knowingly encourage induce any inquiry with respect to or knowingly facilitate that would reasonably be expected to lead to, or the making, submission or announcement of, any Company Alternative Proposal, (including by way ii) participate in any discussions or negotiations regarding, or furnish to any person any nonpublic information relating or with respect to, any Company Alternative Proposal, or in response to any inquiries or proposals that could reasonably be expected to lead to any Company Alternative Proposal, (iii) approve, endorse or recommend any Company Alternative Proposal, or (iv) enter into any letter of furnishing intent or similar document or any agreement or commitment providing for, any Company Alternative Proposal (except for confidentiality agreements specifically permitted pursuant to Section 4.2(c)). The Company shall immediately terminate, and shall cause its Subsidiaries and its and their Representatives to immediately terminate, all discussions or negotiations, if any, that are ongoing as of the date hereof with any third party with respect to a Company Alternative Proposal and shall immediately request the return of all related information.
(b) Immediately after receipt of any inquiries, proposals or offers related to, or if any information is requested with respect to, or any other efforts negotiations or attempts that constitute discussions are sought in connection with a Company Alternative Proposal, the Company shall notify Parent of such, and the identity of the Person or that group of Persons involved, and shall provide copies of any written materials related thereto, and shall keep Parent informed on a reasonably may be expected to lead to, a Competing Proposal or (ii) initiate or participate in any discussions or negotiations (other than to seek clarifications current basis with respect to the Competing Proposal) regardingstatus, terms, discussions and negotiations with respect to such inquiry, proposal or that reasonably may be expected to lead to, a Competing Proposal offer or approve or recommend, or publicly propose to approve or recommend, a Competing Proposal or enter into any merger agreement, letter of intent, agreement in principle, share purchase agreement, asset purchase agreement or share exchange agreement, option agreement or other similar agreement relating to a Competing Proposal, or enter into any agreement or agreement in principle requiring the Company or the Operating Partnership to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder or resolve, propose or agree to do any of the foregoing, except as contemplated in Section 6.5(d). Without limiting the foregoing, the Company shall be responsible for any failure on the part of its Company Representatives to comply with this Section 6.5amendment thereto.
(bc) Any other provision of Notwithstanding anything in this Agreement notwithstandingto the contrary, at any time if prior to the receipt of the Company Shareholder Approval, if Stockholder Approval (i) the Company receives a bona fide written Competing Company Alternative Proposal from a third party (which was not solicited, initiated, encouraged or facilitated in violation of Section 6.5(a)) after the date hereof, the Company (x) may furnish, constitutes a Company Superior Proposal or cause to be furnished, non-public information with respect to the Company and the Company Subsidiaries to the Person who made such Competing Proposal and to its financing sources and Persons or entities working in concert with it (collectively, a “Third Party”), and (y) may participate which the Company Board determines in discussions good faith, after consultation with its outside financial and negotiations regarding legal advisors, would reasonably be expected to result in a Company Superior Proposal by the Person (or group of Persons) making such Competing Proposal, if, in the case of either clause Company Alternative Proposal and (x) or (y): (Aii) prior to taking such action, the Company enters into a confidentiality agreement with the Person who made such Competing Proposal with respect to such Competing Proposal that is substantially similar actions in (except for the absence of standstill provisionsA) to the Confidentiality Agreement dated as of July 5, 2007 between the Company and Parent (the “Confidentiality Agreement”), and (B) below, the Company Board determines in good faith, after consultation with its outside legal counsel and independent financial advisors, that such Competing Proposal is, or is reasonably likely to lead to, a Superior Proposal.
(c) The Company and the Operating Partnership shall provide prompt (within twenty-four (24) hours following receipt thereof) oral and written notice to Parent of (i) the receipt of any Competing Proposal, or any material modification or amendment to any Competing Proposal, by the Company, the Operating Partnership, any Company Subsidiary or any Company Representative, (ii) a copy of any documents or agreements provided in contemplation of such Competing Proposal (including any amendments, supplements or modifications thereto but excluding any financing documents or agreements it is not permitted to deliver as a result of confidentiality restrictions), and (iii) the identity of such Person or entity making any such Competing Proposal. The Company and the Operating Partnership shall keep Parent reasonably informed on a current basis, to the extent reasonably practicable, but in any event as promptly as practicable, of the status and material details (including any change to the material terms and conditions) of any such Competing Proposal. The Company and the Operating Partnership shall not, and shall cause each of the Company Subsidiaries not to, enter into any confidentiality agreement with any Person subsequent to the date hereof which prohibits the Company or the Operating Partnership from providing such information to Parent.
(d) Subject to this paragraph (d) and to Section 8.1(e), neither the Company Board nor any committee of the Company Board may (i) withdraw, qualify or modify or propose publicly to withdraw, qualify or modify, in each case, in a manner adverse to Parent, the Company Recommendation, or the approval or recommendation of any committee of the Company Board of the Merger or of any other transactions contemplated hereby, (ii) approve, recommend or endorse, or propose publicly to approve, recommend or endorse, a Competing Proposal (any action described in clauses (i) or (ii) being referred to as an “Adverse Recommendation Change”, it being agreed that the taking of any of the actions contemplated by Section 6.5(b), (c) or (f) shall not constitute, or be deemed to constitute, an Adverse Recommendation Change) or (iii) authorize or permit the Company or any of the Company Subsidiaries to enter into any agreement, arrangement or understanding (each, an “Acquisition Agreement”) contemplating, or that could reasonably be expected to lead to, a Competing Proposal (other than a confidentiality agreement in compliance with Section 6.5(b)). Notwithstanding the foregoing, at any time prior to receipt of the Company Shareholder Approval, the Company Board or a committee of the Company Board may (1) make an Adverse Recommendation Change for reasons not related to the receipt of a Competing Proposal if the Company Board determines in good faith after consultation with its independent financial advisors and outside legal counsel, that failure to take such action would be inconsistent with the such directors’ fiduciary duties under applicable law, then, prior to receipt of the Company Stockholder Approval, the Company may take the following actions: (A) furnish (or cause to be furnished by its Representatives) nonpublic information to the Persons (or group of Persons) making such Company Alternative Proposal and its Representatives and financing sources, if, and only if, prior to so furnishing such information, the Company receives from the persons (or group of persons) and its Representatives and financing sources an executed confidentiality agreement that contains provisions that are no less favorable in the aggregate to the Company or and its stockholders under applicable Law or (2) in response to a bona fide written Competing Proposal (which was not solicited, initiated, encouraged or facilitated in violation of Section 6.5(a)) made after Subsidiaries than the date hereof take an action referred to in clause (i), (ii) or (iii) above and, provisions contained in the case Confidentiality Agreement, and (B) engage in discussions or negotiations with the Persons (or group of clause Persons) and its Representatives with respect to the Company Alternative Proposal.
(iii), terminate d) Nothing contained in this Agreement in accordance with Section 8.1(e) if, after consultation with its independent financial advisors and outside legal counsel, shall prohibit the Company or the Company Board determines in good faith that such Competing Proposal constitutes a Superior Proposal (a “Subsequent Determination”); provided, however, that such actions may only be taken at a time that is after (I) the third (3rd) Business Day following Parent’s receipt of written notice from the Company that the Company Board is prepared to take such action, and (II) at the end of such period, the Company Board determines in good faith, after taking into account all amendments or revisions committed to by Parent and after consultation with its independent financial advisors and outside legal counsel, that such Competing Proposal remains a Superior Proposal relative to the Merger, as supplemented by any Counterproposal. Any such written notice shall specify the material terms and conditions of such applicable Competing Proposal, include the most current version of any Acquisition Agreement (including any amendments, supplements or modifications thereto), identify the person making such Competing Proposal and state that the Company Board otherwise intends to make a Subsequent Determination (subject to compliance with this subsection (d)). During any such three Business Day period, Parent shall be entitled to deliver to the Company a counterproposal to such Competing Proposal (a “Counterproposal”). For the avoidance of doubt, the parties hereto acknowledge and agree that any amendment to the financial terms or any other material amendment to any material term of a Competing Proposal which amendment affects the determination of whether the Competing Proposal is a Superior Proposal to any Counterproposal shall be treated as a new Competing Proposal for the purposes of this Section 6.5(d) (requiring a new written notice by the Company and a new three Business Day period). For purposes of clarification, the statement by the Company that it has received a Competing Proposal, that its Board will consider such Competing Proposal and that its Board continues to recommend this Agreement pending such consideration shall not be deemed an Adverse Recommendation Change.
(e) Upon execution of this Agreement, the Company, the Operating Partnership and the Company Subsidiaries shall cease immediately and cause to be terminated any and all existing activities, discussions, solicitations or negotiations with any parties conducted heretofore with respect to a Competing Proposal by or on behalf of the Company, the Operating Partnership or any of the Company Representatives. The Company shall use its reasonable best efforts to cause (including by written request) each Person with whom it has executed a confidentiality agreement within the twelve months prior to the date hereof in connection with its consideration of any Competing Proposal to return or destroy all confidential or other non-public information heretofore furnished to such Person by or on behalf of the Company, the Operating Partnership or any of the Company Representatives.
(f) Any other provision of this Agreement notwithstanding, the Company Board may at any time take and disclose disclosing to its holders of Company Common Shares stockholders a position contemplated by Rule Rules 14d-9 or Rule and 14e-2(a) promulgated under the Exchange Act, may issue a stop, look and listen announcement and may make any disclosure required by Rule 14a-9 promulgated under the Exchange Act or Item 1012(a) of Regulation M-A; provided, however, that neither the Company nor the Company Board shall be permitted to recommend a Competing Proposal which is not a Superior Proposal; provided, further, that, for the avoidance of doubt, issuing any public statements by the Company commenting on the merits of a Competing Proposal shall be an Adverse Recommendation Change other than (A) a “stop, look and -look-and-listen” or similar communication of communication, if, in the type contemplated by Rule 14d-9(f) of the Exchange Act, (B) an express rejection of a Competing Proposal or (C) an express reaffirmation good faith judgment of the Company Recommendation to Board, after consultation with its stockholders in favor outside legal advisors, such disclosure is required under applicable law; provided that, (i) such disclosure shall be made at the latest time permissible under applicable law and (ii) if such disclosure has the substantive effect of the Mergersa Company Change of Recommendation, it shall be deemed a Company Change of Recommendation.
(g) The Company shall not take any action to exempt any Person (other than Parent or any of its Affiliates and other than in connection with an Acquisition Agreement following a Subsequent Determination) from the restrictions on “control share acquisitions” contained in the Maryland Control Share Acquisition Act, as amended (or any similar provisions of the MRL) or otherwise cause such restrictions not to apply.
Appears in 1 contract
Sources: Merger Agreement (Westaff Inc)
No Solicitations. (a) From the date No party hereto shall, and each such party shall cause its subsidiaries not to, permit any of this Agreement until the Effective Time, the Company and the Operating Partnership shall notits Representatives to, and shall use its best efforts to cause such persons not authorize or permit any of the Company Subsidiaries, or any of its or their officers, trustees, directors, partners, Affiliates or employees or any investment banker, financial advisor, attorney, accountant, agent or other representative retained by it or any of its Subsidiaries (collectively, the “Company Representatives”)to, directly or indirectly: initiate, solicit or encourage, or take any action to (i) solicit, initiate facilitate the making of any offer or knowingly encourage proposal which constitutes or knowingly facilitate (including by way of furnishing information) any inquiries, proposals or offers or any other efforts or attempts that constitute or that is reasonably may be expected likely to lead toto any Acquisition Proposal (as defined below), a Competing Proposal or (ii) initiate or participate or, in any discussions or negotiations (other than to seek clarifications with respect to the Competing Proposal) regarding, or that reasonably may be expected to lead to, a Competing Proposal or approve or recommend, or publicly propose to approve or recommend, a Competing Proposal or enter into any merger agreement, letter event of intent, agreement in principle, share purchase agreement, asset purchase agreement or share exchange agreement, option agreement or other similar agreement relating to a Competing an unsolicited Acquisition Proposal, or enter into any agreement or agreement in principle requiring the Company or the Operating Partnership to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder or resolve, propose or agree to do any of the foregoing, except as contemplated in Section 6.5(d). Without limiting the foregoing, the Company shall be responsible for any failure on the part of its Company Representatives to comply with this Section 6.5.
(b) Any other provision of this Agreement notwithstanding, at any time prior to the receipt of the Company Shareholder Approval, if Enova Shareholders' Approval and of the Company receives a bona fide written Competing Proposal from a third party (which was not solicited, initiated, encouraged or facilitated in violation of Section 6.5(a)) after the date hereof, the Company (x) may furnish, or cause to be furnished, non-public information with respect to the Company and the Company Subsidiaries to the Person who made such Competing Proposal and to its financing sources and Persons or entities working in concert with it (collectively, a “Third Party”), and (y) may participate in discussions and negotiations regarding such Competing Proposal, if, in the case of either clause (x) or (y): (A) prior to taking such action, the Company enters into a confidentiality agreement with the Person who made such Competing Proposal with respect to such Competing Proposal that is substantially similar (except for the absence of standstill provisions) to the Confidentiality Agreement dated as of July 5, 2007 between the Company and Parent (the “Confidentiality Agreement”), and (B) the Company Board determines in good faith, after consultation with its outside legal counsel and independent financial advisors, that such Competing Proposal is, or is reasonably likely to lead to, a Superior Proposal.
(c) The Company and the Operating Partnership shall provide prompt (within twenty-four (24) hours following receipt thereof) oral and written notice to Parent of (i) the receipt of any Competing Proposal, or any material modification or amendment to any Competing Proposal, by the Company, the Operating Partnership, any Company Subsidiary or any Company Representative, (ii) a copy of any documents or agreements provided in contemplation of such Competing Proposal (including any amendments, supplements or modifications thereto but excluding any financing documents or agreements it is not permitted to deliver as a result of confidentiality restrictions), and (iii) the identity of such Person or entity making any such Competing Proposal. The Company and the Operating Partnership shall keep Parent reasonably informed on a current basis, Pacific Shareholders' Approval to the extent reasonably practicable, but in any event as promptly as practicable, the Board of Directors of the status and material details (including any change to the material terms and conditions) of any party receiving such Competing Proposal. The Company and the Operating Partnership shall not, and shall cause each of the Company Subsidiaries not to, enter into any confidentiality agreement with any Person subsequent to the date hereof which prohibits the Company or the Operating Partnership from providing such information to Parent.
(d) Subject to this paragraph (d) and to Section 8.1(e), neither the Company Board nor any committee of the Company Board may (i) withdraw, qualify or modify or propose publicly to withdraw, qualify or modify, in each case, in a manner adverse to Parent, the Company Recommendation, or the approval or recommendation of any committee of the Company Board of the Merger or of any other transactions contemplated hereby, (ii) approve, recommend or endorse, or propose publicly to approve, recommend or endorse, a Competing unsolicited Acquisition Proposal (any action described in clauses (i) or (ii) being referred to as an “Adverse Recommendation Change”, it being agreed that the taking of any of the actions contemplated by Section 6.5(b), (c) or (f) shall not constitute, or be deemed to constitute, an Adverse Recommendation Change) or (iii) authorize or permit the Company or any of the Company Subsidiaries to enter into any agreement, arrangement or understanding (each, an “Acquisition Agreement”) contemplating, or that could reasonably be expected to lead to, a Competing Proposal (other than a confidentiality agreement in compliance with Section 6.5(b)). Notwithstanding the foregoing, at any time prior to receipt of the Company Shareholder Approval, the Company Board or a committee of the Company Board may (1) make an Adverse Recommendation Change for reasons not related to the receipt of a Competing Proposal if the Company Board determines in good faith after consultation with its independent financial advisors and outside legal counsel, counsel that failure to take such action would be inconsistent is reasonably necessary for such Board of Directors to act in a manner consistent with the directors’ its fiduciary duties to the Company or its stockholders under applicable Law law, engage in negotiations or (2) provide any confidential information or data to any person relating to any Acquisition Proposal. Each party hereto shall notify the other party orally and in response to a bona fide written Competing Proposal (which was not solicitedwriting of any such inquiries, initiatedoffers or proposals, encouraged within 48 hours of the receipt thereof, shall keep the other party informed of the status of any such inquiry, offer or facilitated in violation of Section 6.5(a)) made after the date hereof take an action referred to in clause (i), (ii) or (iii) above and, in the case of clause (iii), terminate this Agreement in accordance with Section 8.1(e) if, after consultation with its independent financial advisors and outside legal counsel, the Company Board determines in good faith that such Competing Proposal constitutes a Superior Proposal (a “Subsequent Determination”); provided, however, that such actions may only be taken at a time that is after (I) the third (3rd) Business Day following Parent’s receipt of written notice from the Company that the Company Board is prepared to take such actionproposal, and (II) at shall give the end of such period, the Company Board determines in good faith, after taking into account all amendments or revisions committed to by Parent and after consultation with its independent financial advisors and outside legal counsel, that such Competing Proposal remains a Superior Proposal relative to the Merger, as supplemented by any Counterproposal. Any such written other party three days' advance notice shall specify the material terms and conditions of such applicable Competing Proposal, include the most current version of any Acquisition Agreement (including agreement to be entered into with or any amendments, supplements or modifications thereto), identify the information to be supplied to any person making such Competing Proposal and state that the Company Board otherwise intends to make a Subsequent Determination (subject to compliance with this subsection (d))inquiry, offer or proposal. During any such three Business Day period, Parent Each party hereto shall be entitled to deliver to the Company a counterproposal to such Competing Proposal (a “Counterproposal”). For the avoidance of doubt, the parties hereto acknowledge and agree that any amendment to the financial terms or any other material amendment to any material term of a Competing Proposal which amendment affects the determination of whether the Competing Proposal is a Superior Proposal to any Counterproposal shall be treated as a new Competing Proposal for the purposes of this Section 6.5(d) (requiring a new written notice by the Company and a new three Business Day period). For purposes of clarification, the statement by the Company that it has received a Competing Proposal, that its Board will consider such Competing Proposal and that its Board continues to recommend this Agreement pending such consideration shall not be deemed an Adverse Recommendation Change.
(e) Upon execution of this Agreement, the Company, the Operating Partnership and the Company Subsidiaries shall immediately cease immediately and cause to be terminated any and all existing activitiesdiscussions and negotiations, discussionsif any, solicitations or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. As used in this Section 6.12, "ACQUISITION PROPOSAL" shall mean any tender or exchange offer, proposal for a Competing Proposal by merger, consolidation or on behalf of the Company, the Operating Partnership other business combination involving any party or any of the Company Representatives. The Company shall use its reasonable best efforts to cause material subsidiaries, or any proposal or offer (including by written request) in each Person with whom it has executed a confidentiality agreement within the twelve months prior case, whether or not in writing and whether or not delivered to the date hereof shareholders of a party generally) to acquire in connection with its consideration any manner, directly or indirectly, a substantial equity interest in, or a substantial portion of the assets of any Competing Proposal to return or destroy all confidential or other non-public information heretofore furnished to such Person by or on behalf of the Company, the Operating Partnership party or any of its material subsidiaries, other than any of the Company Representatives.
(f) Any other provision of foregoing transactions among the parties hereto or pursuant to the transactions contemplated by this Agreement notwithstanding, the Company Board may at any time take Agreement. Nothing contained herein shall prohibit a party from taking and disclose disclosing to its holders of Company Common Shares shareholders a position contemplated by Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act, may issue a stop, look and listen announcement and may make any disclosure required by Rule 14a-9 promulgated under the Exchange Act or Item 1012(a) of Regulation M-A; provided, however, that neither the Company nor the Company Board shall be permitted with respect to recommend a Competing Acquisition Proposal which is not a Superior Proposal; provided, further, that, for the avoidance of doubt, any public statements by the Company commenting on the merits means of a Competing Proposal shall be an Adverse Recommendation Change other than (A) a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) of the Exchange Act, (B) an express rejection of a Competing Proposal or (C) an express reaffirmation of the Company Recommendation to its stockholders in favor of the Mergerstender offer.
(g) The Company shall not take any action to exempt any Person (other than Parent or any of its Affiliates and other than in connection with an Acquisition Agreement following a Subsequent Determination) from the restrictions on “control share acquisitions” contained in the Maryland Control Share Acquisition Act, as amended (or any similar provisions of the MRL) or otherwise cause such restrictions not to apply.
Appears in 1 contract
No Solicitations. (a) From Except as expressly provided by this Agreement, from and after the date hereof until the earlier of the Company Merger Effective Time or the date, if any, on which this Agreement until the Effective Timeis validly terminated pursuant to Section 9.1, the Company and the Operating Partnership Parent shall not, shall not permit any Subsidiary to, and shall not authorize or permit any of the Company Subsidiaries, or any of its or their officers, trustees, directors, partners, Affiliates or employees or any investment banker, financial advisor, attorney, accountant, agent or other representative retained by it or any of its Subsidiaries (collectively, the “Company Representatives”), directly or indirectly, respective Representatives to (i) solicit, initiate or knowingly encourage or knowingly facilitate (including by way of furnishing non-public information) ), any inquiries, proposals or offers offers, or the making, of any other efforts proposal, inquiry or attempts that constitute offer by or with a Third Party (as defined below) with respect to, or that constitutes or would reasonably may be expected to lead to, a Competing Proposal or an Acquisition Proposal, (ii) initiate or participate in any discussions or negotiations (other than or provide any nonpublic information or data to seek clarifications with respect to the Competing Proposal) regardingany Person relating to, or that would reasonably may be expected to lead to, a Competing Proposal or an Acquisition Proposal, (iii) approve or recommendrecommend any Acquisition Proposal (other than in connection with the transactions contemplated by this Agreement), or publicly propose to (iv) approve or recommend, a Competing Proposal execute or enter into any merger agreement, agreement or other similar transaction agreement or joint venture agreement or any letter of intent, agreement in principleterm sheet, share purchase agreement, asset purchase agreement indication of interest or share exchange agreement, option agreement or other similar agreement relating related to, or that would reasonably be expected to lead to, any Acquisition Proposal (an “Acquisition Agreement”), in each case, other than a Competing Company Acceptable Confidentiality Agreement, with respect to Company, or a Parent Acceptable Confidentiality Agreement, with respect to Parent, as applicable, in each case, that is entered into in accordance with the terms of this Section 7.4, (v) take any action to make any Takeover Statute inapplicable to any Person or any Acquisition Proposal, other than Parent, its Subsidiaries and the Mergers, or enter into any agreement or agreement in principle requiring the Company or the Operating Partnership to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder or resolve, (vi) propose publicly or agree to do any of the foregoing; provided, except as contemplated in Section 6.5(d). Without limiting the foregoinghowever, the Company shall be responsible for any failure on the part of its Company Representatives to comply with this Section 6.5.
(b) Any other provision of this Agreement notwithstandingthat, at any time prior to the receipt of Company Stockholder Approval or the Company Shareholder Parent Stockholder Approval, as applicable, if the Company or Parent receives a bona fide written Competing Acquisition Proposal that was unsolicited and that did not otherwise result from a third party (which was not solicited, initiated, encouraged or facilitated in violation breach of this Section 6.5(a7.4(a)) after the date hereof, the Company or Parent, as applicable, may (x) seek to clarify and understand the terms and conditions of any such Acquisition Proposal made by any Person to determine whether such Acquisition Proposal constitutes or would reasonably be expected to lead to a Superior Proposal, and (y) inform such Person that has made or, to the knowledge of the Company or Parent, as applicable, is considering making an Acquisition Proposal of the provisions of this Section 7.4.
(b) Notwithstanding the limitations set forth in Section 7.4(a), but subject to compliance with Section 7.4(c) and Section 7.4(e), if the Company or Parent receives, following the date hereof but prior to the Company Stockholder Meeting or the Parent Stockholder Meeting, as applicable, a bona fide written Acquisition Proposal that was unsolicited and that did not otherwise result from a breach of this Section 7.4(a), then the Company or Parent, as applicable, may furnish, or cause to be furnished, non-public information with respect to the Company it and the Company its Subsidiaries to the Person who made such Competing Acquisition Proposal and to its financing sources and Persons or entities working in concert with it (collectively, a “Third Party”), ) and (y) may participate in discussions and negotiations regarding such Competing Proposal, if, in the case of either clause Acquisition Proposal only if (xi) or (y): (A) prior to taking such action, the Company enters into a confidentiality agreement Board or Parent Board, as applicable, determines in good faith (after consultation with the Person who made such Competing Proposal outside legal counsel) that failure to do so would be reasonably likely to be inconsistent with respect to such Competing Proposal that is substantially similar (except for the absence of standstill provisions) its duties to the Confidentiality Agreement dated Company or Parent, as of July 5applicable, 2007 between the Company and Parent (the “Confidentiality Agreement”)under applicable Law, and (B) the Company Board or Parent Board, as applicable, determines in good faith, faith (after consultation with its outside legal counsel and independent financial advisors, ) that such Competing Acquisition Proposal isconstitutes, or is reasonably likely to lead to, a Superior Proposal, and (C) prior to the furnishing of any information to the Person making the Acquisition Proposal, the Company receives from such Person an executed Company Acceptable Confidentiality Agreement or Parent receives from such Person an executed Parent Acceptable Confidentiality Agreement, as applicable. Company or Parent, as applicable, shall provide the other Party with a copy of any non-public information or data provided to any Third Party pursuant to the prior sentence prior to or simultaneously with furnishing such information to such Third Party (except to the extent it has already been provided).
(c) The Company and the Operating Partnership Each Party shall provide prompt promptly notify (but in any event within twenty-four one (241) hours following receipt thereof) oral and written notice to Parent of (iBusiness Day) the other Party orally, and promptly thereafter confirm in writing, of its receipt of any Competing ProposalAcquisition Proposal or any request for nonpublic information relating to the Company or any Company Subsidiary, or Parent or any material modification or amendment to any Competing ProposalParent Subsidiary, as applicable, by any Person that informs the Company, the Operating Partnership, Company or any Company Subsidiary or Parent or any Company RepresentativeParent Subsidiary, (ii) as applicable, that such Person is considering making, or has made, an Acquisition Proposal. Such notice shall indicate the identity of the Person making the Acquisition Proposal or request, and the material terms and conditions of any such proposal or offer or the nature of the information requested pursuant to such request and shall attach a copy of any documents written Acquisition Proposal (or agreements provided in contemplation summary of the terms of any oral Acquisition Proposal) and related documentation that sets forth any terms of such Competing Acquisition Proposal. Each Party shall also promptly, and in any event within two (2) Business Days, (i) notify the other Party if it enters into discussions or negotiations concerning any Acquisition Proposal (including or provides non‑public information or data to any amendments, supplements or modifications thereto but excluding any financing documents or agreements it is not permitted to deliver as a result of confidentiality restrictionsPerson in accordance with this Section 7.4(c), and (iiiii) keep the identity of such Person or entity making any such Competing Proposal. The Company and the Operating Partnership shall keep Parent other Party reasonably informed on a current basis, to the extent reasonably practicable, but apprised in any event as promptly as practicable, all material respects of the status and material details (including any change to the material terms and conditions) of any such Competing Proposal. The Company and the Operating Partnership shall notproposals, and shall cause each discussions or negotiations on a timely basis, including by promptly providing copies of the Company Subsidiaries not to, enter into any confidentiality agreement with any Person subsequent to the date hereof which prohibits the Company documentation or the Operating Partnership from providing such information to Parentcorrespondence relating thereto.
(d) Subject Except as provided in Section 7.4(e) or Section 7.4(f), and subject to this paragraph (dSection 9.1(d) and Section 9.1(e) hereof, prior to Section 8.1(e)the Company Stockholder Approval or the Parent Stockholder Approval, as applicable, neither the Company Board, the Parent Board nor any committee of the Company Board thereof, as applicable, may (i) withdrawwithhold, qualify withdraw or modify or propose publicly to withdraw, qualify or modify, in each case, in a any manner adverse to Parentthe other Party, the Company Recommendation or take an action to make a Takeover Statute inapplicable to any Third Party (a “Change in Company Recommendation, ”) or the approval Parent Recommendation or recommendation of take an action to make a Takeover Statute inapplicable to any committee of the Company Board of the Merger or of any other transactions contemplated hereby, Third Party (ii) approve, recommend or endorse, or propose publicly to approve, recommend or endorse, a Competing Proposal (any action described “Change in clauses (i) or (ii) being referred to as an “Adverse Recommendation ChangeParent Recommendation”, it being agreed that the taking of any of the actions contemplated by Section 6.5(b), respectively.
(ce) or (f) shall not constituteNotwithstanding anything in this Agreement to the contrary, or be deemed but subject to constitute, an Adverse Recommendation Change) or (iii) authorize or permit the Company or any of the Company Subsidiaries to enter into any agreement, arrangement or understanding (each, an “Acquisition Agreement”) contemplating, or that could reasonably be expected to lead to, a Competing Proposal (other than a confidentiality agreement in compliance with the terms of this Section 6.5(b7.4(e)). Notwithstanding the foregoing, at any time prior to receipt of the Company Shareholder Approval, the Company Board or the Parent Board, as applicable, may make a committee Change in Company Recommendation or a Change in Parent Recommendation, as applicable (and in the event that the Company Board or the Parent Board, as applicable, determines an Acquisition Proposal to be a Superior Proposal, in accordance with this Section 7.4, terminate this Agreement pursuant to Section 9.1), if (i) (A) in the absence of an Acquisition Proposal, a material development or change in circumstances (other than, and not related to, an Acquisition Proposal) that (x) affects the business, assets or operations of the Company Board may or Parent, (1y) make an Adverse Recommendation Change for reasons was not related known or reasonably foreseeable to the receipt of a Competing Proposal if the Company Board determines or the Parent Board, as applicable, on the date of this Agreement (assuming consultations with appropriate officers and Representatives of the Company or Parent, as applicable), and (z) did not result primarily from or arise out of the announcement or pendency of, or any actions required to be taken pursuant to (or prohibited by) this Agreement and did not result from a Willful Breach of this Agreement by the Company or Parent, as applicable, occurs or arises after the date of this Agreement, which material development or change in circumstances becomes known to the Company Board or the Parent Board, as applicable, prior to the Company Stockholder Meeting or the Parent Stockholder Meeting, as applicable, and (B) the Company Board or the Parent Board, as applicable, has concluded in good faith (after consultation with its independent financial advisors and outside legal counsel, ) that failure to take such action do so would be inconsistent with the applicable directors’ duties to the Company or its stockholders under applicable Law or (2ii) in response to a if and only if (A) an unsolicited bona fide written Competing Acquisition Proposal (which was is made to the Company or Parent, as applicable, and is not solicited, initiated, encouraged or facilitated in violation of Section 6.5(a)) made after the date hereof take an action referred to in clause (i)withdrawn, (iiB) the Company Board or the Parent Board, as applicable, has concluded in good faith (iii) above and, in the case of clause (iii), terminate this Agreement in accordance with Section 8.1(e) if, after consultation with its independent outside legal counsel and financial advisors advisors) that such Acquisition Proposal constitutes a Superior Proposal, (C) the Company Board or Parent Board, as applicable, has concluded in good faith (after consultation with outside legal counsel) that failure to do so would be inconsistent with the applicable directors’ duties under applicable Law, (D) three (3) Business Days (the “Notice Period”) shall have elapsed since the Party proposing to take such action has given written notice to the other Party advising such Party that the notifying Party intends to take such action and specifying in reasonable detail the reasons therefor, including, if applicable, a copy of the Superior Proposal that is the basis of the proposed action (a “Notice of Recommendation Change”), which Notice of Recommendation Change or the decision resulting in one shall not be deemed a Change in Company Recommendation or a Change in Parent Recommendation, as applicable, for any purpose of this Agreement, (E) during such Notice Period, the notifying Party shall have negotiated in good faith with the other Party, to the extent the other Party wishes to negotiate, and (F) the Company Board or the Parent Board, as applicable, following such Notice Period, again reasonably determine in good faith (after consultation with outside legal counsel, and taking into account any proposed adjustment or modification of the Company Board determines in good faith terms of this Agreement irrevocably agreed to by the other Party) that such Competing Proposal constitutes a Superior Proposal (a “Subsequent Determination”)failure to do so would be inconsistent with the applicable directors’ duties under applicable Law; provided, however, that such actions may only be taken at in the event of any material change in the terms or conditions of a time Superior Proposal that is after (I) the third (3rd) Business Day following Parent’s receipt subject of written notice from the Company that the Company Board is prepared to take such action, and (II) at the end a Notice of such periodRecommendation Change, the Company Board determines shall, in good faitheach case, after taking into account all amendments or revisions committed have delivered to by Parent an additional Notice of Recommendation Change and after consultation with its independent financial advisors and outside legal counselthe Notice Period shall have recommenced, except that such Competing Proposal remains a Superior Proposal relative to in the Merger, as supplemented by any Counterproposal. Any such written notice shall specify the material terms and conditions event of such applicable Competing Proposal, include recommencement the most current version of any Acquisition Agreement (including any amendments, supplements or modifications thereto), identify the person making such Competing Proposal and state that the Company Board otherwise intends to make a Subsequent Determination (subject to compliance with this subsection (d)). During any such three Business Day period, Parent “Notice Period” shall be entitled deemed to deliver to the Company a counterproposal to such Competing Proposal be two (a “Counterproposal”)2) Business Days. For the avoidance of doubt, compliance with this Section 7.4(e)(ii) with respect to a particular Acquisition Proposal shall not relieve the parties hereto acknowledge and agree that notifying Party of its obligation to fully comply with this Section 7.4(e)(ii) with respect to any amendment to the financial terms amended Acquisition Proposal or any other material amendment to any material term of a Competing Acquisition Proposal which amendment affects the determination of (whether the Competing Proposal is a Superior Proposal to any Counterproposal shall be treated as a new Competing Proposal for the purposes of this Section 6.5(d) (requiring a new written notice made by the Company and same or a new three Business Day perioddifferent Person). For purposes of clarification, the statement by the Company that it has received a Competing Proposal, that its Board will consider such Competing Proposal and that its Board continues to recommend this Agreement pending such consideration shall not be deemed an Adverse Recommendation Change.
(ef) Nothing contained in this Section 7.4 shall prohibit either Party or its Subsidiaries from taking and disclosing to its stockholders a position contemplated by Rule 14e‑2(a) promulgated under the Exchange Act or from making a statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9 promulgated under the Exchange Act, or from issuing a “stop, look and listen” statement pending disclosure of its position thereunder.
(g) Upon execution of this Agreement, the CompanyCompany agrees that it will cease immediately, the Operating Partnership and the Company Subsidiaries shall cease immediately and cause to be terminated terminated, any and all existing activities, discussions, solicitations discussions or negotiations with any parties Person conducted heretofore with respect to, or that would reasonably be expected to a Competing lead to, an Acquisition Proposal by or on behalf of the Company, the Operating Partnership or any of the Company Representatives. The Company shall use its reasonable best efforts to cause (including by written request) and promptly request each such Person with whom it has executed a confidentiality agreement within the twelve months prior to the date hereof in connection with its consideration of any Competing Proposal to return or destroy all confidential or other non-public information heretofore furnished to such Person by or on behalf of the Company, the Operating Partnership or any of the Company Representatives.
(f) Any other provision of this Agreement notwithstanding, the Company Board may at any time take and disclose to its holders of Company Common Shares a position contemplated by Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act, may issue a stop, look and listen announcement and may make any disclosure required by Rule 14a-9 promulgated under the Exchange Act or Item 1012(a) of Regulation M-A; provided, however, that neither the Company nor the Company Board shall be permitted to recommend a Competing Proposal which is not a Superior Proposal; provided, further, that, for the avoidance of doubt, any public statements by the Company commenting on the merits of a Competing Proposal shall be an Adverse Recommendation Change other than (A) a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) of the Exchange Act, (B) an express rejection of a Competing Proposal or (C) an express reaffirmation of the Company Recommendation to its stockholders in favor of the Mergers.
(g) The Company shall not take any action to exempt any Person (other than Parent or any of its Affiliates and other than in connection with an any such actual or potential Acquisition Agreement following a Subsequent Determination) from the restrictions on “control share acquisitions” contained in the Maryland Control Share Acquisition Act, as amended (or any similar provisions of the MRL) or otherwise cause such restrictions not to applyProposal.
Appears in 1 contract
No Solicitations. (a) From Until the earlier of the Fourth Effective Time and the date of termination of this Agreement until pursuant to the Effective Timeprovisions of Section 13.1, none of the Company Selling Companies or any of their Subsidiaries shall take nor shall the Selling Companies permit any of the Selling Companies' or their Subsidiaries' directors, officers, employees, advisors, representatives or agents to take (directly or indirectly) any of the following actions with any Person other than Parent and its designees: (i) solicit, entertain, initiate, facilitate or encourage any proposal or offer from, or participate or engage in or conduct any discussions or negotiations with, any Person relating to any inquiry, contact, offer or proposal, oral, written or otherwise, formal or informal, with respect to any possible Acquisition Proposal for the Operating Partnership shall notSelling Companies or any of their Subsidiaries (whether such Subsidiary is in existence on the date hereof or is hereafter organized), and shall not (ii) provide any information with respect to the Selling Companies or any of their Subsidiaries (whether such Subsidiary is in existence on the date hereof or is hereafter organized) to any Person other than Parent, relating to (or which the Selling Companies believes would be used for the purpose of formulating) an offer or proposal with respect to, or otherwise assist, cooperate with, facilitate or encourage any effort or attempt by any such Person with regard to, any possible Acquisition Proposal for any of the Selling Companies or any of their Subsidiaries (whether such Subsidiary is in existence on the date hereof or is hereafter organized), (iii) approve or agree to or enter into a Contract with any Person other than Parent providing for an Acquisition Proposal for the Selling Companies or any of their Subsidiaries (whether such Subsidiary is in existence on the date hereof or is hereafter organized), (iv) make or authorize any statement, recommendation, solicitation or endorsement in support of any possible Acquisition Proposal for the Selling Companies or any of their Subsidiaries (whether such Subsidiary is in existence on the date hereof or is hereafter organized) other than the acquisition proposal from Parent contemplated by this Agreement, or (v) authorize or permit any of the Company SubsidiariesSelling Companies' directors, or any of its or their officers, trusteesemployees, directorsadvisors, partnersrepresentatives or agents to take any such action; provided, Affiliates or employees or any investment bankerhowever, financial advisor, attorney, accountant, agent or other representative retained by it or any of its Subsidiaries (collectively, the “Company Representatives”), directly or indirectly, to (i) solicit, initiate or knowingly encourage or knowingly facilitate (including by way of furnishing information) any inquiries, proposals or offers or any other efforts or attempts that constitute or that reasonably may be expected to lead to, a Competing Proposal or (ii) initiate or participate in any discussions or negotiations (other than to seek clarifications with respect to the Competing Proposal) regarding, or that reasonably may be expected to lead to, a Competing Proposal or approve or recommend, or publicly propose to approve or recommend, a Competing Proposal or enter into any merger agreement, letter of intent, agreement in principle, share purchase agreement, asset purchase agreement or share exchange agreement, option agreement or other similar agreement relating to a Competing Proposal, or enter into any agreement or agreement in principle requiring the Company or the Operating Partnership to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder or resolve, propose or agree to do any of the foregoing, except as contemplated in Section 6.5(d). Without limiting the foregoing, the Company shall be responsible for any failure on the part of its Company Representatives to comply with this Section 6.5.
(b) Any other provision of this Agreement notwithstandingthat, at any time prior to the receipt approval and adoption of this Agreement by the Company Shareholder ApprovalStockholders, if the Company receives Selling Companies receive a bona fide written Competing Acquisition Proposal that was unsolicited and that did not otherwise result from a third party (which was not solicited, initiated, encouraged or facilitated in violation breach of this Section 6.5(a)) after the date hereof9.9, the Company (x) Selling Companies may furnish, or cause to be furnished, furnish non-public information with respect to the Company Selling Companies and the Company their respective Subsidiaries to the Person who made such Competing Acquisition Proposal and to its financing sources and Persons or entities working in concert with it (collectively, a “Third Party”), and (y) may participate in discussions and negotiations regarding such Competing Proposal, if, in the case of either clause (x) or (y): Acquisition Proposal if (A) prior the Selling Companies Boards determine in good faith, after receiving advice from their outside counsel, that failure to taking such action, the Company enters into a confidentiality agreement with the Person who made such Competing Proposal with respect to such Competing Proposal that is substantially similar (except for the absence of standstill provisions) do so would violate their fiduciary duties to the Confidentiality Agreement dated as of July 5, 2007 between the Company and Parent (the “Confidentiality Agreement”)Stockholders under applicable Law, and (B) the Company Board determines in good faith, after consultation with its outside legal counsel and independent financial advisors, Selling Companies Boards determine that such Competing Acquisition Proposal is, or is reasonably likely to lead to, a Superior Proposal.
(cb) The Company Selling Companies shall immediately cease and the Operating Partnership shall provide prompt (within twenty-four (24) hours following receipt thereof) oral and written notice cause to Parent of (i) the receipt of any Competing Proposal, or any material modification or amendment to any Competing Proposal, by the Company, the Operating Partnership, any Company Subsidiary or any Company Representative, (ii) a copy of any documents or agreements provided in contemplation of such Competing Proposal (including any amendments, supplements or modifications thereto but excluding any financing documents or agreements it is not permitted to deliver as a result of confidentiality restrictions), and (iii) the identity of such Person or entity making be terminated any such Competing Proposal. The Company and the Operating Partnership shall keep Parent reasonably informed on a current basis, to the extent reasonably practicable, but in any event as promptly as practicable, of the status and material details (including any change to the material terms and conditions) of any such Competing Proposal. The Company and the Operating Partnership shall not, and shall cause each of the Company Subsidiaries not to, enter into any confidentiality agreement Contacts or negotiations with any Person subsequent relating to the date hereof which prohibits the Company any such transaction or the Operating Partnership from providing such information Acquisition Proposal. In addition to Parent.
(d) Subject to this paragraph (d) and to Section 8.1(e), neither the Company Board nor any committee of the Company Board may (i) withdraw, qualify or modify or propose publicly to withdraw, qualify or modify, in each case, in a manner adverse to Parent, the Company Recommendation, or the approval or recommendation of any committee of the Company Board of the Merger or of any other transactions contemplated hereby, (ii) approve, recommend or endorse, or propose publicly to approve, recommend or endorse, a Competing Proposal (any action described in clauses (i) or (ii) being referred to as an “Adverse Recommendation Change”, it being agreed that the taking of any of the actions contemplated by Section 6.5(b), (c) or (f) shall not constitute, or be deemed to constitute, an Adverse Recommendation Change) or (iii) authorize or permit the Company or any of the Company Subsidiaries to enter into any agreement, arrangement or understanding (each, an “Acquisition Agreement”) contemplating, or that could reasonably be expected to lead to, a Competing Proposal (other than a confidentiality agreement in compliance with Section 6.5(b)). Notwithstanding the foregoing, at any time if (after this Agreement is executed and delivered by the Selling Companies and prior to receipt the First Effective Time or the earlier termination of the Company Shareholder Approval, the Company Board or a committee of the Company Board may (1) make an Adverse Recommendation Change for reasons not related to the receipt of a Competing Proposal if the Company Board determines in good faith after consultation with its independent financial advisors and outside legal counsel, that failure to take such action would be inconsistent with the directors’ duties to the Company or its stockholders under applicable Law or (2) in response to a bona fide written Competing Proposal (which was not solicited, initiated, encouraged or facilitated in violation of Section 6.5(a)) made after the date hereof take an action referred to in clause (i), (ii) or (iii) above and, in the case of clause (iii), terminate this Agreement in accordance with Section 8.1(e13.1) ifthe Selling Companies receive any offer or proposal (formal or informal, after consultation oral, written or otherwise) relating to, or any inquiry or contact from any Person with its independent financial advisors and outside legal counselrespect to, an Acquisition Proposal, the Company Board determines in good faith that Selling Companies shall immediately notify Parent thereof and provide Parent with the details thereof, including the identity of the Person or Persons making such Competing Proposal constitutes offer, proposal, inquiry or contact and shall keep Parent fully informed on a Superior Proposal (a “Subsequent Determination”); provided, however, that current basis of the status and details of any such actions may only be taken at a time that is after (I) the third (3rd) Business Day following Parent’s receipt offer or proposal and of written notice from the Company that the Company Board is prepared to take such action, and (II) at the end of such period, the Company Board determines in good faith, after taking into account all amendments or revisions committed to by Parent and after consultation with its independent financial advisors and outside legal counsel, that such Competing Proposal remains a Superior Proposal relative any modifications to the Merger, as supplemented by any Counterproposal. Any such written notice shall specify the material terms and conditions of such applicable Competing Proposal, include the most current version of any Acquisition Agreement (including any amendments, supplements or modifications thereto), identify the person making such Competing Proposal and state that the Company Board otherwise intends to make a Subsequent Determination (subject to compliance with this subsection (d)). During any such three Business Day period, Parent shall be entitled to deliver to the Company a counterproposal to such Competing Proposal (a “Counterproposal”). For the avoidance of doubt, the parties hereto acknowledge and agree that any amendment to the financial terms or any other material amendment to any material term of a Competing Proposal which amendment affects the determination of whether the Competing Proposal is a Superior Proposal to any Counterproposal shall be treated as a new Competing Proposal for the purposes of this Section 6.5(d) (requiring a new written notice by the Company and a new three Business Day period). For purposes of clarification, the statement by the Company that it has received a Competing Proposal, that its Board will consider such Competing Proposal and that its Board continues to recommend this Agreement pending such consideration shall not be deemed an Adverse Recommendation Changethereof.
(ec) Upon execution Each of the Selling Companies and Parent acknowledge that this Section 9.9 was a significant inducement for Parent to enter into this Agreement and the absence of such a provision would have resulted in either (i) a material reduction in the consideration to be paid to the Stockholders in the Mergers or (ii) the failure to induce Parent to enter into this Agreement, the Company, the Operating Partnership and the Company Subsidiaries shall cease immediately and cause to be terminated any and all existing activities, discussions, solicitations or negotiations with any parties conducted heretofore with respect to a Competing Proposal by or on behalf of the Company, the Operating Partnership or any of the Company Representatives. The Company shall use its reasonable best efforts to cause (including by written request) each Person with whom it has executed a confidentiality agreement within the twelve months prior to the date hereof in connection with its consideration of any Competing Proposal to return or destroy all confidential or other non-public information heretofore furnished to such Person by or on behalf of the Company, the Operating Partnership or any of the Company Representatives.
(f) Any other provision of this Agreement notwithstanding, the Company Board may at any time take and disclose to its holders of Company Common Shares a position contemplated by Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act, may issue a stop, look and listen announcement and may make any disclosure required by Rule 14a-9 promulgated under the Exchange Act or Item 1012(a) of Regulation M-A; provided, however, that neither the Company nor the Company Board shall be permitted to recommend a Competing Proposal which is not a Superior Proposal; provided, further, that, for the avoidance of doubt, any public statements by the Company commenting on the merits of a Competing Proposal shall be an Adverse Recommendation Change other than (A) a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) of the Exchange Act, (B) an express rejection of a Competing Proposal or (C) an express reaffirmation of the Company Recommendation to its stockholders in favor of the Mergers.
(g) The Company shall not take any action to exempt any Person (other than Parent or any of its Affiliates and other than in connection with an Acquisition Agreement following a Subsequent Determination) from the restrictions on “control share acquisitions” contained in the Maryland Control Share Acquisition Act, as amended (or any similar provisions of the MRL) or otherwise cause such restrictions not to apply.
Appears in 1 contract
No Solicitations. (a) From the date of this Agreement until the Effective Time, the The Company and the Operating Partnership shall not, and nor shall not it permit any of its subsidiaries to, directly or indirectly, through any officer, director, employee or agent, initiate, solicit or knowingly encourage (including by way of furnishing information or assistance), or take any other action to facilitate knowingly, any inquiries or the making of any proposal that constitutes, or would reasonably be expected to lead to, any Competing Transaction, or enter into or maintain or continue discussions or negotiate with any person in furtherance of such inquiries or to obtain a Competing Transaction, or agree to or endorse any Competing Transaction, or authorize or permit any of the officers, directors or employees of the Company Subsidiaries, or any of its or their officers, trustees, directors, partners, Affiliates or employees subsidiaries or any investment banker, financial advisor, attorney, accountant, agent accountant or other representative retained by it or any of its Subsidiaries (collectively, the “Company Representatives”), directly or indirectly, to (i) solicit, initiate or knowingly encourage or knowingly facilitate (including by way of furnishing information) any inquiries, proposals or offers or any other efforts or attempts that constitute or that reasonably may be expected to lead to, a Competing Proposal or (ii) initiate or participate in any discussions or negotiations (other than to seek clarifications with respect to the Competing Proposal) regarding, or that reasonably may be expected to lead to, a Competing Proposal or approve or recommend, or publicly propose to approve or recommend, a Competing Proposal or enter into any merger agreement, letter of intent, agreement in principle, share purchase agreement, asset purchase agreement or share exchange agreement, option agreement or other similar agreement relating to a Competing Proposal, or enter into any agreement or agreement in principle requiring the Company or the Operating Partnership to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder or resolve, propose or agree to do any of the foregoing, except as contemplated in Section 6.5(d). Without limiting the foregoing, the Company shall be responsible for any failure on the part of its Company Representatives to comply with this Section 6.5.
(b) Any other provision of this Agreement notwithstanding, at any time prior to the receipt of the Company Shareholder Approval, if the Company receives a bona fide written Competing Proposal from a third party (which was not solicited, initiated, encouraged or facilitated in violation of Section 6.5(a)) after the date hereof, the Company (x) may furnish, or cause to be furnished, non-public information with respect to the Company and the Company Subsidiaries to the Person who made such Competing Proposal and to its financing sources and Persons or entities working in concert with it (collectively, a “Third Party”), and (y) may participate in discussions and negotiations regarding such Competing Proposal, if, in the case of either clause (x) or (y): (A) prior to taking such action, the Company enters into a confidentiality agreement with the Person who made such Competing Proposal with respect to such Competing Proposal that is substantially similar (except for the absence of standstill provisions) to the Confidentiality Agreement dated as of July 5, 2007 between the Company and Parent (the “Confidentiality Agreement”), and (B) the Company Board determines in good faith, after consultation with its outside legal counsel and independent financial advisors, that such Competing Proposal is, or is reasonably likely to lead to, a Superior Proposal.
(c) The Company and the Operating Partnership shall provide prompt (within twenty-four (24) hours following receipt thereof) oral and written notice to Parent of (i) the receipt of any Competing Proposal, or any material modification or amendment to any Competing Proposal, by the Company, the Operating Partnership, any Company Subsidiary or any Company Representative, (ii) a copy of any documents or agreements provided in contemplation of such Competing Proposal (including any amendments, supplements or modifications thereto but excluding any financing documents or agreements it is not permitted to deliver as a result of confidentiality restrictions), and (iii) the identity of such Person or entity making any such Competing Proposal. The Company and the Operating Partnership shall keep Parent reasonably informed on a current basis, to the extent reasonably practicable, but in any event as promptly as practicable, of the status and material details (including any change to the material terms and conditions) of any such Competing Proposal. The Company and the Operating Partnership shall not, and shall cause each of the Company Subsidiaries not to, enter into any confidentiality agreement with any Person subsequent to the date hereof which prohibits the Company or the Operating Partnership from providing such information to Parent.
(d) Subject to this paragraph (d) and to Section 8.1(e), neither the Company Board nor any committee of the Company Board may (i) withdraw, qualify or modify or propose publicly to withdraw, qualify or modify, in each case, in a manner adverse to Parent, the Company Recommendation, or the approval or recommendation of any committee of the Company Board of the Merger or of any other transactions contemplated hereby, (ii) approve, recommend or endorse, or propose publicly to approve, recommend or endorse, a Competing Proposal (any action described in clauses (i) or (ii) being referred to as an “Adverse Recommendation Change”, it being agreed that the taking of any of the actions contemplated by Section 6.5(b), (c) or (f) shall not constitute, or be deemed to constitute, an Adverse Recommendation Change) or (iii) authorize or permit the Company or any of its subsidiaries to take any such action. The Company shall notify Parent in writing (as promptly as practicable) if any written or oral request for information or proposal relating to a Competing Transaction is made and shall keep Parent promptly advised of all such requests and proposals, and shall provide a copy of any written proposals or requests and a summary of all oral proposals or requests. Nothing contained in this Section 4.1(e) shall prohibit the Company Subsidiaries to enter into any agreement, arrangement or understanding from (each, an “Acquisition Agreement”i) contemplatingfurnishing information to, or entering into discussions or negotiations with, any person that could reasonably be expected makes an unsolicited written, bona fide proposal to lead toacquire it pursuant to a merger, a Competing Proposal consolidation, share exchange, business combination, tender or exchange offer or other similar transaction, if, (other than a confidentiality agreement in compliance with Section 6.5(b)). Notwithstanding A) the foregoing, at any time prior to receipt of the Company Shareholder Approval, the Company Board or a committee of the Company Board may (1) make an Adverse Recommendation Change for reasons not related to the receipt of a Competing Proposal if the Company Board determines in good faith after consultation with its independent financial advisors and outside legal counsel, that failure to take such action would be inconsistent with the directors’ Board of Directors' fiduciary duties to the Company or its Company's stockholders under applicable Law law, and (B) prior to furnishing such information to, or (2) in response to a bona fide written Competing Proposal (which was not solicitedentering into discussions or negotiations with, initiated, encouraged or facilitated in violation of Section 6.5(a)) made after the date hereof take an action referred to in clause (i), (ii) or (iii) above and, in the case of clause (iii), terminate this Agreement in accordance with Section 8.1(e) if, after consultation with its independent financial advisors and outside legal counselsuch person, the Company Board determines in good faith (x) provides reasonable notice to Parent to the effect that it is furnishing information to, or entering into discussions or negotiations with, such Competing Proposal constitutes a Superior Proposal (a “Subsequent Determination”); provided, however, that such actions may only be taken at a time that is after (I) the third (3rd) Business Day following Parent’s receipt of written notice from the Company that the Company Board is prepared to take such action, person and (IIy) at the end of receives from such period, the Company Board determines in good faith, after taking into account all amendments or revisions committed to by Parent and after consultation with its independent financial advisors and outside legal counsel, that such Competing Proposal remains a Superior Proposal relative to the Merger, as supplemented by any Counterproposal. Any such written notice shall specify the material terms and conditions of such applicable Competing Proposal, include the most current version of any Acquisition Agreement (including any amendments, supplements or modifications thereto), identify the person making such Competing Proposal and state that the Company Board otherwise intends to make a Subsequent Determination (subject to compliance with this subsection (d)). During any such three Business Day period, Parent shall be entitled to deliver an executed confidentiality agreement no less favorable to the Company a counterproposal to such Competing Proposal (a “Counterproposal”). For than the avoidance of doubt, the parties hereto acknowledge and agree that any amendment to the financial terms or any other material amendment to any material term of a Competing Proposal which amendment affects the determination of whether the Competing Proposal is a Superior Proposal to any Counterproposal shall be treated as a new Competing Proposal for the purposes of this Section 6.5(d) (requiring a new written notice by the Company and a new three Business Day period). For purposes of clarification, the statement by the Company that it has received a Competing Proposal, that its Board will consider such Competing Proposal and that its Board continues to recommend this Confidentiality Agreement pending such consideration shall not be deemed an Adverse Recommendation Change.
(e) Upon execution of this Agreement, the Company, the Operating Partnership between Parent and the Company Subsidiaries shall cease immediately and cause to be terminated any and all existing activitiesIndependent Advisor, discussions, solicitations or negotiations with any parties conducted heretofore with respect to a Competing Proposal by or on behalf of the Company, dated June 4, 1999 (the Operating Partnership or any of the Company Representatives. The Company shall use its reasonable best efforts to cause "Confidentiality Agreement"), (including by written requestii) each Person complying with whom it has executed a confidentiality agreement within the twelve months prior to the date hereof in connection with its consideration of any Competing Proposal to return or destroy all confidential or other non-public information heretofore furnished to such Person by or on behalf of the Company, the Operating Partnership or any of the Company Representatives.
(f) Any other provision of this Agreement notwithstanding, the Company Board may at any time take and disclose to its holders of Company Common Shares a position contemplated by Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act, may issue a stop, look and listen announcement and may make any disclosure required by Rule 14a-9 14e-2 promulgated under the Exchange Act with regard to a tender or Item 1012(aexchange offer, or (iii) of Regulation M-A; providedfailing to make or withdrawing or modifying its recommendation referred to in Section 5.2, howeveror recommending an unsolicited, that neither bona fide proposal to acquire the Company nor pursuant to a merger, consolidation, share exchange, business combination, tender or exchange offer or other similar transaction, following the receipt of such a proposal, if the failure to take such action would be inconsistent with the Board of Directors' fiduciary duties to the Company's stockholders under applicable law. In addition, if the Company Board proposes to enter into an agreement with respect to any Competing Transaction, it shall concurrently with entering into such agreement pay, or cause to be permitted paid, to recommend a Competing Proposal which is not a Superior Proposal; provided, further, that, for the avoidance of doubt, Parent any public statements by amounts due to Parent from the Company commenting on the merits of a pursuant to Section 7.3. As used in this Agreement, "Competing Proposal Transaction" shall be an Adverse Recommendation Change other than (A) a “stop, look and listen” or similar communication mean any of the type contemplated by Rule 14d-9(f) of the Exchange Act, (B) an express rejection of a Competing Proposal or (C) an express reaffirmation of the Company Recommendation to its stockholders in favor of the Mergers.
(g) The Company shall not take any action to exempt any Person following (other than Parent the transactions contemplated by this Agreement) involving the Company or any of its Affiliates subsidiaries: (i) any merger, consolidation, share exchange, exchange offer, business combination, recapitalization, liquidation, dissolution or other similar transaction involving such person; (ii) any sale, lease, exchange, mortgage, pledge, transfer or other disposition of assets representing 20% or more of the total assets of such person and other than its subsidiaries, in a single transaction or series of transactions; (iii) any tender offer or exchange offer for 20% or more of the outstanding shares of capital stock of such person or the filing of a registration statement under the Securities Act in connection therewith; (iv) any person or group having acquired beneficial ownership of 15% or more of the outstanding shares of capital stock of such person with an Acquisition Agreement following respect to Company Common Stock); or (v) any public announcement of a Subsequent Determination) from proposal, plan or intention to do any of the restrictions on “control share acquisitions” contained in the Maryland Control Share Acquisition Act, as amended (foregoing or any similar provisions agreement to engage in any of the MRL) or otherwise cause such restrictions not to applyforegoing.
Appears in 1 contract
Sources: Merger Agreement (Taco Cabana Inc)
No Solicitations. (a) From and after the date hereof, Seller, without the prior written consent of this Agreement until the Effective TimeBuyer, the Company and the Operating Partnership shall will not, and shall will not authorize or permit any of the Company Subsidiaries, its or any of its or their Subsidiaries' officers, trusteesemployees, directors, partners, Affiliates or employees or any investment banker, financial advisor, attorney, accountant, agent stockholders or other representative retained by it or any of its Subsidiaries (collectively, the “Company Representatives”)representatives to, directly or indirectly, to (i) solicit, initiate or knowingly encourage or knowingly facilitate (including by way of furnishing information) any inquiries, proposals or offers or take any other efforts action to facilitate knowingly any inquiries or attempts the making of any proposal that constitute constitutes or that could be reasonably may be expected to lead toto an Alternative Proposal from any Person, a Competing Proposal or (ii) initiate or participate engage in any discussions or negotiations (other than to seek clarifications with respect to the Competing Proposal) regarding, relating thereto or that reasonably may be expected to lead to, a Competing accept any Alternative Proposal or approve make or recommendauthorize any statement, recommendation or publicly propose to approve or recommendsolicitation in support of any Alternative Proposal; provided, a Competing Proposal or enter into however, that notwithstanding any merger agreement, letter of intent, agreement in principle, share purchase agreement, asset purchase agreement or share exchange agreement, option agreement or other similar agreement relating to a Competing Proposal, or enter into any agreement or agreement in principle requiring the Company or the Operating Partnership to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder or resolve, propose or agree to do any of the foregoing, except as contemplated in Section 6.5(d). Without limiting the foregoing, the Company shall be responsible for any failure on the part of its Company Representatives to comply with this Section 6.5.
(b) Any other provision of this Agreement notwithstandinghereof, Seller may (a) at any time prior to the receipt of time ▇▇▇▇▇▇'▇ ▇▇▇ckholders shall have voted to approve this Agreement and the Company Shareholder Approvaltransactions contemplated hereby, if the Company receives a bona fide written Competing Proposal from engage in discussions or negotiations with a third party who (which was not solicitedwithout any solicitation, initiatedinitiation, encouraged encouragement, discussion or facilitated in violation negotiation, directly or indirectly, by or with Seller or any of Section 6.5(a)its Subsidiaries or any officer, employee, director, stockholder or other representative of Seller or any of its Subsidiaries after the date hereof) seeks to initiate such discussions or negotiations and may furnish such third party information concerning the Entertainment Companies if, and only to the extent that, (i) (x) such third party has first made, after the date hereof, an Alternative Proposal in writing the Company (x) may furnish, or cause terms of which reflect a superior transaction than the transactions contemplated by this Agreement and has demonstrated that the funds necessary for the Alternative Proposal are reasonably likely to be furnishedavailable (as determined in good faith in each case by Seller's Board of Directors after consultation with its financial advisors) and (y) Seller's Board of Directors shall have determined in good faith, non-public on the basis of advice of Paul, ▇▇iss, Rifkind, Whar▇▇▇ & ▇arr▇▇▇▇ ▇▇ other outside counsel of similar stature, that such action is necessary for the Board of Directors to comply with its fiduciary duties to stockholders under Applicable Law and (ii) prior to furnishing information to or entering into discussions or negotiations with such Person, Seller receives from such Person an executed 40 52 confidentiality agreement in reasonably customary form and containing terms not in the aggregate materially more favorable to such Person than the terms contained in Section 6.02 or in any confidentiality agreement previously executed by Seller and Buyer or any of its Subsidiaries; or (b) comply with Rule 14e-2 promulgated under the Securities and Exchange Act of 1934 with regard to a tender or exchange offer. Seller shall immediately cease and terminate any existing solicitation, initiation, engagement, activity, discussion or negotiation with any Persons conducted heretofore by Seller or any officer, employee, director, stockholder or other representative of Seller or any of its Subsidiaries with respect to the Company foregoing. Seller shall not 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 the Company Subsidiaries to the another Person who made such Competing Proposal and has made, or who may reasonably be considered likely to its financing sources and Persons or entities working in concert with it (collectivelymake, a “Third Party”), and (y) may participate in discussions and negotiations regarding such Competing an Alternative Proposal, if, in the case unless its Board of either clause (x) or (y): (A) prior to taking such action, the Company enters into a confidentiality agreement with the Person who made such Competing Proposal with respect to such Competing Proposal that is substantially similar (except for the absence of standstill provisions) to the Confidentiality Agreement dated as of July 5, 2007 between the Company and Parent (the “Confidentiality Agreement”), and (B) the Company Board determines Directors shall determine in good faith, after consultation with its on the basis of the advice of Paul, ▇▇iss, Rifkind, Whar▇▇▇ & ▇arr▇▇▇▇ ▇▇ other outside legal counsel and independent financial advisorsof similar stature, that such Competing Proposal is, or action is reasonably likely necessary for the Board of Directors to lead to, a Superior Proposal.
(c) The Company comply with its fiduciary duties to stockholders under Applicable Law. Seller shall notify Buyer orally and the Operating Partnership shall provide prompt (within twenty-four (24) hours following receipt thereof) oral and written notice to Parent of (i) the receipt in writing of any Competing Proposalsuch inquiries (that are or appear to be serious or legitimate), offers or proposals (including the terms and conditions of any material modification such offer or amendment to any Competing Proposal, by the Companyproposal, the Operating Partnership, any Company Subsidiary or any Company Representative, (ii) identity of the Person making it and a copy of any documents or agreements provided in contemplation of such Competing Proposal (including any amendments, supplements or modifications thereto but excluding any financing documents or agreements it is not permitted to deliver as a result of confidentiality restrictionswritten Alternative Proposal), as promptly as practicable and (iii) the identity of such Person or entity making any such Competing Proposal. The Company and the Operating Partnership shall keep Parent reasonably informed on a current basis, to the extent reasonably practicable, but in any event as promptly as practicablewithin forty-eight (48) hours after the receipt thereof, shall keep Buyer informed of the status and material details (including any change to the material terms and conditions) of any such Competing Proposal. The Company and the Operating Partnership shall notinquiry, offer or proposal, and shall cause each give Buyer five (5) days' advance written notice of the Company Subsidiaries not any agreement to be entered into with, or any information to be supplied to, enter into any confidentiality agreement with any Person subsequent to the date hereof which prohibits the Company or the Operating Partnership from providing such information to Parent.
(d) Subject to this paragraph (d) and to Section 8.1(e), neither the Company Board nor any committee of the Company Board may (i) withdraw, qualify or modify or propose publicly to withdraw, qualify or modify, in each case, in a manner adverse to Parent, the Company Recommendation, or the approval or recommendation of any committee of the Company Board of the Merger or of any other transactions contemplated hereby, (ii) approve, recommend or endorse, or propose publicly to approve, recommend or endorse, a Competing Proposal (any action described in clauses (i) or (ii) being referred to as an “Adverse Recommendation Change”, it being agreed that the taking of any of the actions contemplated by Section 6.5(b), (c) or (f) shall not constitute, or be deemed to constitute, an Adverse Recommendation Change) or (iii) authorize or permit the Company or any of the Company Subsidiaries to enter into any agreement, arrangement or understanding (each, an “Acquisition Agreement”) contemplating, or that could reasonably be expected to lead to, a Competing Proposal (other than a confidentiality agreement in compliance with Section 6.5(b)). Notwithstanding the foregoing, at any time prior to receipt of the Company Shareholder Approval, the Company Board or a committee of the Company Board may (1) make an Adverse Recommendation Change for reasons not related to the receipt of a Competing Proposal if the Company Board determines in good faith after consultation with its independent financial advisors and outside legal counsel, that failure to take such action would be inconsistent with the directors’ duties to the Company or its stockholders under applicable Law or (2) in response to a bona fide written Competing Proposal (which was not solicited, initiated, encouraged or facilitated in violation of Section 6.5(a)) made after the date hereof take an action referred to in clause (i), (ii) or (iii) above and, in the case of clause (iii), terminate this Agreement in accordance with Section 8.1(e) if, after consultation with its independent financial advisors and outside legal counsel, the Company Board determines in good faith that such Competing Proposal constitutes a Superior Proposal (a “Subsequent Determination”); provided, however, that such actions may only be taken at a time that is after (I) the third (3rd) Business Day following Parent’s receipt of written notice from the Company that the Company Board is prepared to take such action, and (II) at the end of such period, the Company Board determines in good faith, after taking into account all amendments or revisions committed to by Parent and after consultation with its independent financial advisors and outside legal counsel, that such Competing Proposal remains a Superior Proposal relative to the Merger, as supplemented by any Counterproposal. Any such written notice shall specify the material terms and conditions of such applicable Competing Proposal, include the most current version of any Acquisition Agreement (including any amendments, supplements or modifications thereto), identify the person making such Competing Proposal and state that the Company Board otherwise intends to make a Subsequent Determination (subject to compliance with this subsection (d)). During any such three Business Day periodinquiry, Parent shall be entitled to deliver to the Company a counterproposal to such Competing Proposal (a “Counterproposal”). For the avoidance of doubt, the parties hereto acknowledge and agree that any amendment to the financial terms offer or any other material amendment to any material term of a Competing Proposal which amendment affects the determination of whether the Competing Proposal is a Superior Proposal to any Counterproposal shall be treated as a new Competing Proposal for the purposes of this Section 6.5(d) (requiring a new written notice by the Company and a new three Business Day period). For purposes of clarification, the statement by the Company that it has received a Competing Proposal, that its Board will consider such Competing Proposal and that its Board continues to recommend this Agreement pending such consideration shall not be deemed an Adverse Recommendation Changeproposal.
(e) Upon execution of this Agreement, the Company, the Operating Partnership and the Company Subsidiaries shall cease immediately and cause to be terminated any and all existing activities, discussions, solicitations or negotiations with any parties conducted heretofore with respect to a Competing Proposal by or on behalf of the Company, the Operating Partnership or any of the Company Representatives. The Company shall use its reasonable best efforts to cause (including by written request) each Person with whom it has executed a confidentiality agreement within the twelve months prior to the date hereof in connection with its consideration of any Competing Proposal to return or destroy all confidential or other non-public information heretofore furnished to such Person by or on behalf of the Company, the Operating Partnership or any of the Company Representatives.
(f) Any other provision of this Agreement notwithstanding, the Company Board may at any time take and disclose to its holders of Company Common Shares a position contemplated by Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act, may issue a stop, look and listen announcement and may make any disclosure required by Rule 14a-9 promulgated under the Exchange Act or Item 1012(a) of Regulation M-A; provided, however, that neither the Company nor the Company Board shall be permitted to recommend a Competing Proposal which is not a Superior Proposal; provided, further, that, for the avoidance of doubt, any public statements by the Company commenting on the merits of a Competing Proposal shall be an Adverse Recommendation Change other than (A) a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) of the Exchange Act, (B) an express rejection of a Competing Proposal or (C) an express reaffirmation of the Company Recommendation to its stockholders in favor of the Mergers.
(g) The Company shall not take any action to exempt any Person (other than Parent or any of its Affiliates and other than in connection with an Acquisition Agreement following a Subsequent Determination) from the restrictions on “control share acquisitions” contained in the Maryland Control Share Acquisition Act, as amended (or any similar provisions of the MRL) or otherwise cause such restrictions not to apply.
Appears in 1 contract
No Solicitations. (a) From Until the earlier of the Fourth Effective Time and the date of termination of this Agreement until pursuant to the Effective Timeprovisions of Section 13.1, none of the Company Selling Companies or any of their Subsidiaries shall take nor shall the Selling Companies permit any of the Selling Companies’ or their Subsidiaries’ directors, officers, employees, advisors, representatives or agents to take (directly or indirectly) any of the following actions with any Person other than Parent and its designees: (i) solicit, entertain, initiate, facilitate or encourage any proposal or offer from, or participate or engage in or conduct any discussions or negotiations with, any Person relating to any inquiry, contact, offer or proposal, oral, written or otherwise, formal or informal, with respect to any possible Acquisition Proposal for the Operating Partnership shall notSelling Companies or any of their Subsidiaries (whether such Subsidiary is in existence on the date hereof or is hereafter organized), and shall not (ii) provide any information with respect to the Selling Companies or any of their Subsidiaries (whether such Subsidiary is in existence on the date hereof or is hereafter organized) to any Person other than Parent, relating to (or which the Selling Companies believes would be used for the purpose of formulating) an offer or proposal with respect to, or otherwise assist, cooperate with, facilitate or encourage any effort or attempt by any such Person with regard to, any possible Acquisition Proposal for any of the Selling Companies or any of their Subsidiaries (whether such Subsidiary is in existence on the date hereof or is hereafter organized), (iii) approve or agree to or enter into a Contract with any Person other than Parent providing for an Acquisition Proposal for the Selling Companies or any of their Subsidiaries (whether such Subsidiary is in existence on the date hereof or is hereafter organized), (iv) make or authorize any statement, recommendation, solicitation or endorsement in support of any possible Acquisition Proposal for the Selling Companies or any of their Subsidiaries (whether such Subsidiary is in existence on the date hereof or is hereafter organized) other than the acquisition proposal from Parent contemplated by this Agreement, or (v) authorize or permit any of the Company SubsidiariesSelling Companies’ directors, or any of its or their officers, trusteesemployees, directorsadvisors, partnersrepresentatives or agents to take any such action; provided, Affiliates or employees or any investment bankerhowever, financial advisor, attorney, accountant, agent or other representative retained by it or any of its Subsidiaries (collectively, the “Company Representatives”), directly or indirectly, to (i) solicit, initiate or knowingly encourage or knowingly facilitate (including by way of furnishing information) any inquiries, proposals or offers or any other efforts or attempts that constitute or that reasonably may be expected to lead to, a Competing Proposal or (ii) initiate or participate in any discussions or negotiations (other than to seek clarifications with respect to the Competing Proposal) regarding, or that reasonably may be expected to lead to, a Competing Proposal or approve or recommend, or publicly propose to approve or recommend, a Competing Proposal or enter into any merger agreement, letter of intent, agreement in principle, share purchase agreement, asset purchase agreement or share exchange agreement, option agreement or other similar agreement relating to a Competing Proposal, or enter into any agreement or agreement in principle requiring the Company or the Operating Partnership to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder or resolve, propose or agree to do any of the foregoing, except as contemplated in Section 6.5(d). Without limiting the foregoing, the Company shall be responsible for any failure on the part of its Company Representatives to comply with this Section 6.5.
(b) Any other provision of this Agreement notwithstandingthat, at any time prior to the receipt approval and adoption of this Agreement by the Company Shareholder ApprovalStockholders, if the Company receives Selling Companies receive a bona fide written Competing Acquisition Proposal that was unsolicited and that did not otherwise result from a third party (which was not solicited, initiated, encouraged or facilitated in violation breach of this Section 6.5(a)) after the date hereof9.9, the Company (x) Selling Companies may furnish, or cause to be furnished, furnish non-public information with respect to the Company Selling Companies and the Company their respective Subsidiaries to the Person who made such Competing Acquisition Proposal and to its financing sources and Persons or entities working in concert with it (collectively, a “Third Party”), and (y) may participate in discussions and negotiations regarding such Competing Proposal, if, in the case of either clause (x) or (y): Acquisition Proposal if (A) prior the Selling Companies Boards determine in good faith, after receiving advice from their outside counsel, that failure to taking such action, the Company enters into a confidentiality agreement with the Person who made such Competing Proposal with respect to such Competing Proposal that is substantially similar (except for the absence of standstill provisions) do so would violate their fiduciary duties to the Confidentiality Agreement dated as of July 5, 2007 between the Company and Parent (the “Confidentiality Agreement”)Stockholders under applicable Law, and (B) the Company Board determines in good faith, after consultation with its outside legal counsel and independent financial advisors, Selling Companies Boards determine that such Competing Acquisition Proposal is, or is reasonably likely to lead to, a Superior Proposal.
(cb) The Company Selling Companies shall immediately cease and the Operating Partnership shall provide prompt (within twenty-four (24) hours following receipt thereof) oral and written notice cause to Parent of (i) the receipt of any Competing Proposal, or any material modification or amendment to any Competing Proposal, by the Company, the Operating Partnership, any Company Subsidiary or any Company Representative, (ii) a copy of any documents or agreements provided in contemplation of such Competing Proposal (including any amendments, supplements or modifications thereto but excluding any financing documents or agreements it is not permitted to deliver as a result of confidentiality restrictions), and (iii) the identity of such Person or entity making be terminated any such Competing Proposal. The Company and the Operating Partnership shall keep Parent reasonably informed on a current basis, to the extent reasonably practicable, but in any event as promptly as practicable, of the status and material details (including any change to the material terms and conditions) of any such Competing Proposal. The Company and the Operating Partnership shall not, and shall cause each of the Company Subsidiaries not to, enter into any confidentiality agreement Contacts or negotiations with any Person subsequent relating to the date hereof which prohibits the Company any such transaction or the Operating Partnership from providing such information Acquisition Proposal. In addition to Parent.
(d) Subject to this paragraph (d) and to Section 8.1(e), neither the Company Board nor any committee of the Company Board may (i) withdraw, qualify or modify or propose publicly to withdraw, qualify or modify, in each case, in a manner adverse to Parent, the Company Recommendation, or the approval or recommendation of any committee of the Company Board of the Merger or of any other transactions contemplated hereby, (ii) approve, recommend or endorse, or propose publicly to approve, recommend or endorse, a Competing Proposal (any action described in clauses (i) or (ii) being referred to as an “Adverse Recommendation Change”, it being agreed that the taking of any of the actions contemplated by Section 6.5(b), (c) or (f) shall not constitute, or be deemed to constitute, an Adverse Recommendation Change) or (iii) authorize or permit the Company or any of the Company Subsidiaries to enter into any agreement, arrangement or understanding (each, an “Acquisition Agreement”) contemplating, or that could reasonably be expected to lead to, a Competing Proposal (other than a confidentiality agreement in compliance with Section 6.5(b)). Notwithstanding the foregoing, at any time if (after this Agreement is executed and delivered by the Selling Companies and prior to receipt the First Effective Time or the earlier termination of the Company Shareholder Approval, the Company Board or a committee of the Company Board may (1) make an Adverse Recommendation Change for reasons not related to the receipt of a Competing Proposal if the Company Board determines in good faith after consultation with its independent financial advisors and outside legal counsel, that failure to take such action would be inconsistent with the directors’ duties to the Company or its stockholders under applicable Law or (2) in response to a bona fide written Competing Proposal (which was not solicited, initiated, encouraged or facilitated in violation of Section 6.5(a)) made after the date hereof take an action referred to in clause (i), (ii) or (iii) above and, in the case of clause (iii), terminate this Agreement in accordance with Section 8.1(e13.1) ifthe Selling Companies receive any offer or proposal (formal or informal, after consultation oral, written or otherwise) relating to, or any inquiry or contact from any Person with its independent financial advisors and outside legal counselrespect to, an Acquisition Proposal, the Company Board determines in good faith that Selling Companies shall immediately notify Parent thereof and provide Parent with the details thereof, including the identity of the Person or Persons making such Competing Proposal constitutes offer, proposal, inquiry or contact and shall keep Parent fully informed on a Superior Proposal (a “Subsequent Determination”); provided, however, that current basis of the status and details of any such actions may only be taken at a time that is after (I) the third (3rd) Business Day following Parent’s receipt offer or proposal and of written notice from the Company that the Company Board is prepared to take such action, and (II) at the end of such period, the Company Board determines in good faith, after taking into account all amendments or revisions committed to by Parent and after consultation with its independent financial advisors and outside legal counsel, that such Competing Proposal remains a Superior Proposal relative any modifications to the Merger, as supplemented by any Counterproposal. Any such written notice shall specify the material terms and conditions of such applicable Competing Proposal, include the most current version of any Acquisition Agreement (including any amendments, supplements or modifications thereto), identify the person making such Competing Proposal and state that the Company Board otherwise intends to make a Subsequent Determination (subject to compliance with this subsection (d)). During any such three Business Day period, Parent shall be entitled to deliver to the Company a counterproposal to such Competing Proposal (a “Counterproposal”). For the avoidance of doubt, the parties hereto acknowledge and agree that any amendment to the financial terms or any other material amendment to any material term of a Competing Proposal which amendment affects the determination of whether the Competing Proposal is a Superior Proposal to any Counterproposal shall be treated as a new Competing Proposal for the purposes of this Section 6.5(d) (requiring a new written notice by the Company and a new three Business Day period). For purposes of clarification, the statement by the Company that it has received a Competing Proposal, that its Board will consider such Competing Proposal and that its Board continues to recommend this Agreement pending such consideration shall not be deemed an Adverse Recommendation Changethereof.
(ec) Upon execution Each of the Selling Companies and Parent acknowledge that this Section 9.9 was a significant inducement for Parent to enter into this Agreement and the absence of such a provision would have resulted in either (i) a material reduction in the consideration to be paid to the Stockholders in the Mergers or (ii) the failure to induce Parent to enter into this Agreement, the Company, the Operating Partnership and the Company Subsidiaries shall cease immediately and cause to be terminated any and all existing activities, discussions, solicitations or negotiations with any parties conducted heretofore with respect to a Competing Proposal by or on behalf of the Company, the Operating Partnership or any of the Company Representatives. The Company shall use its reasonable best efforts to cause (including by written request) each Person with whom it has executed a confidentiality agreement within the twelve months prior to the date hereof in connection with its consideration of any Competing Proposal to return or destroy all confidential or other non-public information heretofore furnished to such Person by or on behalf of the Company, the Operating Partnership or any of the Company Representatives.
(f) Any other provision of this Agreement notwithstanding, the Company Board may at any time take and disclose to its holders of Company Common Shares a position contemplated by Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act, may issue a stop, look and listen announcement and may make any disclosure required by Rule 14a-9 promulgated under the Exchange Act or Item 1012(a) of Regulation M-A; provided, however, that neither the Company nor the Company Board shall be permitted to recommend a Competing Proposal which is not a Superior Proposal; provided, further, that, for the avoidance of doubt, any public statements by the Company commenting on the merits of a Competing Proposal shall be an Adverse Recommendation Change other than (A) a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) of the Exchange Act, (B) an express rejection of a Competing Proposal or (C) an express reaffirmation of the Company Recommendation to its stockholders in favor of the Mergers.
(g) The Company shall not take any action to exempt any Person (other than Parent or any of its Affiliates and other than in connection with an Acquisition Agreement following a Subsequent Determination) from the restrictions on “control share acquisitions” contained in the Maryland Control Share Acquisition Act, as amended (or any similar provisions of the MRL) or otherwise cause such restrictions not to apply.
Appears in 1 contract
Sources: Merger Agreement (Ansys Inc)
No Solicitations. (a) From Except as expressly provided by this Agreement, from and after the date hereof until the earlier of the Company Merger Effective Time or the date, if any, on which this Agreement until the Effective Timeis validly terminated pursuant to Section 9.1, the Company and the Operating Partnership Parent shall not, shall not permit any Subsidiary to, and shall not authorize or permit any of the Company Subsidiaries, or any of its or their officers, trustees, directors, partners, Affiliates or employees or any investment banker, financial advisor, attorney, accountant, agent or other representative retained by it or any of its Subsidiaries (collectively, the “Company Representatives”), directly or indirectly, respective Representatives to (i) solicit, initiate or knowingly encourage or knowingly facilitate (including by way of furnishing non-public information) ), any inquiries, proposals or offers offers, or the making, of any other efforts proposal, inquiry or attempts that constitute offer by or with a Third Party (as defined below) with respect to, or that constitutes or would reasonably may be expected to lead to, a Competing Proposal or an Acquisition Proposal, (ii) initiate or participate in any discussions or negotiations (other than or provide any nonpublic information or data to seek clarifications with respect to the Competing Proposal) regardingany Person relating to, or that would reasonably may be expected to lead to, a Competing Proposal or an Acquisition Proposal, (iii) approve or recommendrecommend any Acquisition Proposal (other than in connection with the transactions contemplated by this Agreement), or publicly propose to (iv) approve or recommend, a Competing Proposal execute or enter into any merger agreement, agreement or other similar transaction agreement or joint venture agreement or any letter of intent, agreement in principleterm sheet, share purchase agreement, asset purchase agreement indication of interest or share exchange agreement, option agreement or other similar agreement relating related to, or that would reasonably be expected to lead to, any Acquisition Proposal (an “Acquisition Agreement”), in each case, other than a Competing Company Acceptable Confidentiality Agreement, with respect to Company, or a Parent Acceptable Confidentiality Agreement, with respect to Parent, as applicable, in each case, that is entered into in accordance with the terms of this Section 7.4, (v) take any action to make any Takeover Statute inapplicable to any Person or any Acquisition Proposal, other than Parent, its Subsidiaries and the Mergers, or enter into any agreement or agreement in principle requiring the Company or the Operating Partnership to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder or resolve, (vi) propose publicly or agree to do any of the foregoing; provided, except as contemplated in Section 6.5(d). Without limiting the foregoinghowever, the Company shall be responsible for any failure on the part of its Company Representatives to comply with this Section 6.5.
(b) Any other provision of this Agreement notwithstandingthat, at any time prior to the receipt of Company Stockholder Approval or the Company Shareholder Parent Stockholder Approval, as applicable, if the Company or Parent receives a bona fide written Competing Acquisition Proposal that was unsolicited and that did not otherwise result from a third party (which was not solicited, initiated, encouraged or facilitated in violation breach of this Section 6.5(a7.4(a)) after the date hereof, the Company or Parent, as applicable, may (x) seek to clarify and understand the terms and conditions of any such Acquisition Proposal made by any Person to determine whether such Acquisition Proposal constitutes or would reasonably be expected to lead to a Superior Proposal, and (y) inform such Person that has made or, to the knowledge of the Company or Parent, as applicable, is considering making an Acquisition Proposal of the provisions of this Section 7.4.
(b) Notwithstanding the limitations set forth in Section 7.4(a), but subject to compliance with Section 7.4(c) and Section 7.4(e), if the Company or Parent receives, following the date hereof but prior to the Company Stockholder Meeting or the Parent Stockholder Meeting, as applicable, a bona fide written Acquisition Proposal that was unsolicited and that did not otherwise result from a breach of this Section 7.4(a), then the Company or Parent, as applicable, may furnish, or cause to be furnished, non-public information with respect to the Company it and the Company its Subsidiaries to the Person who made such Competing Acquisition Proposal and to its financing sources and Persons or entities working in concert with it (collectively, a “Third Party”), ) and (y) may participate in discussions and negotiations regarding such Competing Proposal, if, in the case of either clause Acquisition Proposal only if (xi) or (y): (A) prior to taking such action, the Company enters into a confidentiality agreement Board or Parent Board, as applicable, determines in good faith (after consultation with the Person who made such Competing Proposal outside legal counsel) that failure to do so would be reasonably likely to be inconsistent with respect to such Competing Proposal that is substantially similar (except for the absence of standstill provisions) its duties to the Confidentiality Agreement dated Company or Parent, as of July 5applicable, 2007 between the Company and Parent (the “Confidentiality Agreement”)under applicable Law, and (B) the Company Board or Parent Board, as applicable, determines in good faith, faith (after consultation with its outside legal counsel and independent financial advisors, ) that such Competing Acquisition Proposal isconstitutes, or is reasonably likely to lead to, a Superior Proposal, and (C) prior to the furnishing of any information to the Person making the Acquisition Proposal, the Company receives from such Person an executed Company Acceptable Confidentiality Agreement or Parent receives from such Person an executed Parent Acceptable Confidentiality Agreement, as applicable. Company or Parent, as applicable, shall provide the other Party with a copy of any non-public information or data provided to any Third Party pursuant to the prior sentence prior to or simultaneously with furnishing such information to such Third Party (except to the extent it has already been provided).
(c) The Company and the Operating Partnership Each Party shall provide prompt promptly notify (but in any event within twenty-four one (241) hours following receipt thereof) oral and written notice to Parent of (iBusiness Day) the other Party orally, and promptly thereafter confirm in writing, of its receipt of any Competing ProposalAcquisition Proposal or any request for nonpublic information relating to the Company or any Company Subsidiary, or Parent or any material modification or amendment to any Competing ProposalParent Subsidiary, as applicable, by any Person that informs the Company, the Operating Partnership, Company or any Company Subsidiary or Parent or any Company RepresentativeParent Subsidiary, (ii) as applicable, that such Person is considering making, or has made, an Acquisition Proposal. Such notice shall indicate the identity of the Person making the Acquisition Proposal or request, and the material terms and conditions of any such proposal or offer or the nature of the information requested pursuant to such request and shall attach a copy of any documents written Acquisition Proposal (or agreements provided in contemplation summary of the terms of any oral Acquisition Proposal) and related documentation that sets forth any terms of such Competing Acquisition Proposal. Each Party shall also promptly, and in any event within two (2) Business Days, (i) notify the other Party if it enters into discussions or negotiations concerning any Acquisition Proposal (including or provides non-public information or data to any amendments, supplements or modifications thereto but excluding any financing documents or agreements it is not permitted to deliver as a result of confidentiality restrictionsPerson in accordance with this Section 7.4(c), and (iiiii) keep the identity of such Person or entity making any such Competing Proposal. The Company and the Operating Partnership shall keep Parent other Party reasonably informed on a current basis, to the extent reasonably practicable, but apprised in any event as promptly as practicable, all material respects of the status and material details (including any change to the material terms and conditions) of any such Competing Proposal. The Company and the Operating Partnership shall notproposals, and shall cause each discussions or negotiations on a timely basis, including by promptly providing copies of the Company Subsidiaries not to, enter into any confidentiality agreement with any Person subsequent to the date hereof which prohibits the Company documentation or the Operating Partnership from providing such information to Parentcorrespondence relating thereto.
(d) Subject Except as provided in Section 7.4(e) or Section 7.4(f), and subject to this paragraph (dSection 9.1(d) and Section 9.1(e) hereof, prior to Section 8.1(e)the Company Stockholder Approval or the Parent Stockholder Approval, as applicable, neither the Company Board, the Parent Board nor any committee of the Company Board thereof, as applicable, may (i) withdrawwithhold, qualify withdraw or modify or propose publicly to withdraw, qualify or modify, in each case, in a any manner adverse to Parentthe other Party, the Company Recommendation or take an action to make a Takeover Statute inapplicable to any Third Party (a “Change in Company Recommendation, ”) or the approval Parent Recommendation or recommendation of take an action to make a Takeover Statute inapplicable to any committee of the Company Board of the Merger or of any other transactions contemplated hereby, Third Party (ii) approve, recommend or endorse, or propose publicly to approve, recommend or endorse, a Competing Proposal (any action described “Change in clauses (i) or (ii) being referred to as an “Adverse Recommendation ChangeParent Recommendation”, it being agreed that the taking of any of the actions contemplated by Section 6.5(b), respectively.
(ce) or (f) shall not constituteNotwithstanding anything in this Agreement to the contrary, or be deemed but subject to constitute, an Adverse Recommendation Change) or (iii) authorize or permit the Company or any of the Company Subsidiaries to enter into any agreement, arrangement or understanding (each, an “Acquisition Agreement”) contemplating, or that could reasonably be expected to lead to, a Competing Proposal (other than a confidentiality agreement in compliance with the terms of this Section 6.5(b7.4(e)). Notwithstanding the foregoing, at any time prior to receipt of the Company Shareholder Approval, the Company Board or the Parent Board, as applicable, may make a committee Change in Company Recommendation or a Change in Parent Recommendation, as applicable (and in the event that the Company Board or the Parent Board, as applicable, determines an Acquisition Proposal to be a Superior Proposal, in accordance with this Section 7.4, terminate this Agreement pursuant to Section 9.1), if (i) (A) in the absence of an Acquisition Proposal, a material development or change in circumstances (other than, and not related to, an Acquisition Proposal) that (x) affects the business, assets or operations of the Company Board may or Parent, (1y) make an Adverse Recommendation Change for reasons was not related known or reasonably foreseeable to the receipt of a Competing Proposal if the Company Board determines or the Parent Board, as applicable, on the date of this Agreement (assuming consultations with appropriate officers and Representatives of the Company or Parent, as applicable), and (z) did not result primarily from or arise out of the announcement or pendency of, or any actions required to be taken pursuant to (or prohibited by) this Agreement and did not result from a Willful Breach of this Agreement by the Company or Parent, as applicable, occurs or arises after the date of this Agreement, which material development or change in circumstances becomes known to the Company Board or the Parent Board, as applicable, prior to the Company Stockholder Meeting or the Parent Stockholder Meeting, as applicable, and (B) the Company Board or the Parent Board, as applicable, has concluded in good faith (after consultation with its independent financial advisors and outside legal counsel, ) that failure to take such action do so would be inconsistent with the applicable directors’ duties to the Company or its stockholders under applicable Law or (2ii) in response to a if and only if (A) an unsolicited bona fide written Competing Acquisition Proposal (which was is made to the Company or Parent, as applicable, and is not solicited, initiated, encouraged or facilitated in violation of Section 6.5(a)) made after the date hereof take an action referred to in clause (i)withdrawn, (iiB) the Company Board or the Parent Board, as applicable, has concluded in good faith (iii) above and, in the case of clause (iii), terminate this Agreement in accordance with Section 8.1(e) if, after consultation with its independent outside legal counsel and financial advisors advisors) that such Acquisition Proposal constitutes a Superior Proposal, (C) the Company Board or Parent Board, as applicable, has concluded in good faith (after consultation with outside legal counsel) that failure to do so would be inconsistent with the applicable directors’ duties under applicable Law, (D) three (3) Business Days (the “Notice Period”) shall have elapsed since the Party proposing to take such action has given written notice to the other Party advising such Party that the notifying Party intends to take such action and specifying in reasonable detail the reasons therefor, including, if applicable, a copy of the Superior Proposal that is the basis of the proposed action (a “Notice of Recommendation Change”), which Notice of Recommendation Change or the decision resulting in one shall not be deemed a Change in Company Recommendation or a Change in Parent Recommendation, as applicable, for any purpose of this Agreement, (E) during such Notice Period, the notifying Party shall have negotiated in good faith with the other Party, to the extent the other Party wishes to negotiate, and (F) the Company Board or the Parent Board, as applicable, following such Notice Period, again reasonably determine in good faith (after consultation with outside legal counsel, and taking into account any proposed adjustment or modification of the Company Board determines in good faith terms of this Agreement irrevocably agreed to by the other Party) that such Competing Proposal constitutes a Superior Proposal (a “Subsequent Determination”)failure to do so would be inconsistent with the applicable directors’ duties under applicable Law; provided, however, that such actions may only be taken at in the event of any material change in the terms or conditions of a time Superior Proposal that is after (I) the third (3rd) Business Day following Parent’s receipt subject of written notice from the Company that the Company Board is prepared to take such action, and (II) at the end a Notice of such periodRecommendation Change, the Company Board determines shall, in good faitheach case, after taking into account all amendments or revisions committed have delivered to by Parent an additional Notice of Recommendation Change and after consultation with its independent financial advisors and outside legal counselthe Notice Period shall have recommenced, except that such Competing Proposal remains a Superior Proposal relative to in the Merger, as supplemented by any Counterproposal. Any such written notice shall specify the material terms and conditions event of such applicable Competing Proposal, include recommencement the most current version of any Acquisition Agreement (including any amendments, supplements or modifications thereto), identify the person making such Competing Proposal and state that the Company Board otherwise intends to make a Subsequent Determination (subject to compliance with this subsection (d)). During any such three Business Day period, Parent “Notice Period” shall be entitled deemed to deliver to the Company a counterproposal to such Competing Proposal be two (a “Counterproposal”)2) Business Days. For the avoidance of doubt, compliance with this Section 7.4(e)(ii) with respect to a particular Acquisition Proposal shall not relieve the parties hereto acknowledge and agree that notifying Party of its obligation to fully comply with this Section 7.4(e)(ii) with respect to any amendment to the financial terms amended Acquisition Proposal or any other material amendment to any material term of a Competing Acquisition Proposal which amendment affects the determination of (whether the Competing Proposal is a Superior Proposal to any Counterproposal shall be treated as a new Competing Proposal for the purposes of this Section 6.5(d) (requiring a new written notice made by the Company and same or a new three Business Day perioddifferent Person). For purposes of clarification, the statement by the Company that it has received a Competing Proposal, that its Board will consider such Competing Proposal and that its Board continues to recommend this Agreement pending such consideration shall not be deemed an Adverse Recommendation Change.
(ef) Nothing contained in this Section 7.4 shall prohibit either Party or its Subsidiaries from taking and disclosing to its stockholders a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or from making a statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9 promulgated under the Exchange Act, or from issuing a “stop, look and listen” statement pending disclosure of its position thereunder.
(g) Upon execution of this Agreement, the CompanyCompany agrees that it will cease immediately, the Operating Partnership and the Company Subsidiaries shall cease immediately and cause to be terminated terminated, any and all existing activities, discussions, solicitations discussions or negotiations with any parties Person conducted heretofore with respect to, or that would reasonably be expected to a Competing lead to, an Acquisition Proposal by or on behalf of the Company, the Operating Partnership or any of the Company Representatives. The Company shall use its reasonable best efforts to cause (including by written request) and promptly request each such Person with whom it has executed a confidentiality agreement within the twelve months prior to the date hereof in connection with its consideration of any Competing Proposal to return or destroy all confidential or other non-public information heretofore furnished to such Person by or on behalf of the Company, the Operating Partnership or any of the Company Representatives.
(f) Any other provision of this Agreement notwithstanding, the Company Board may at any time take and disclose to its holders of Company Common Shares a position contemplated by Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act, may issue a stop, look and listen announcement and may make any disclosure required by Rule 14a-9 promulgated under the Exchange Act or Item 1012(a) of Regulation M-A; provided, however, that neither the Company nor the Company Board shall be permitted to recommend a Competing Proposal which is not a Superior Proposal; provided, further, that, for the avoidance of doubt, any public statements by the Company commenting on the merits of a Competing Proposal shall be an Adverse Recommendation Change other than (A) a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) of the Exchange Act, (B) an express rejection of a Competing Proposal or (C) an express reaffirmation of the Company Recommendation to its stockholders in favor of the Mergers.
(g) The Company shall not take any action to exempt any Person (other than Parent or any of its Affiliates and other than in connection with an any such actual or potential Acquisition Agreement following a Subsequent Determination) from the restrictions on “control share acquisitions” contained in the Maryland Control Share Acquisition Act, as amended (or any similar provisions of the MRL) or otherwise cause such restrictions not to applyProposal.
Appears in 1 contract
No Solicitations. (a) From the date of this Agreement until the Effective TimeThe Company agrees that neither it, the Company and the Operating Partnership shall not, and shall not authorize or permit nor any Subsidiary of the Company SubsidiariesCompany, or nor any of its or its Subsidiaries officers and directors, shall, and that it shall instruct and use its commercially reasonable efforts to cause its and their other officers, trusteesemployees, directorsaccountants, partnersconsultants, Affiliates or employees or any investment bankerlegal counsel, financial advisor, attorney, accountant, agent or advisors and agents and other representative retained by it or any of its Subsidiaries representatives (collectively, the “Company "Representatives”)") not to, directly or indirectly, to indirectly (i) knowingly solicit, initiate initiate, encourage, facilitate or knowingly encourage induce any inquiry with respect to or knowingly facilitate that would reasonably be expected to lead to, or the making, submission or announcement of, any Company Alternative Proposal, (including by way ii) participate in any discussions or negotiations regarding, or furnish to any person any nonpublic information relating or with respect to, any Company Alternative Proposal, or in response to any inquiries or proposals that could reasonably be expected to lead to any Company Alternative Proposal, (iii) approve, endorse or recommend any Company Alternative Proposal, or (iv) enter into any letter of furnishing intent or similar document or any agreement or commitment providing for, any Company Alternative Proposal (except for confidentiality agreements specifically permitted pursuant to Section 4.2(c)). The Company shall immediately terminate, and shall cause its Subsidiaries and its and their Representatives to immediately terminate, all discussions or negotiations, if any, that are ongoing as of the date hereof with any third party with respect to a Company Alternative Proposal and shall immediately request the return of all related information.
(b) Immediately after receipt of any inquiries, proposals or offers related to, or if any information is requested with respect to, or any other efforts negotiations or attempts that constitute discussions are sought in connection with a Company Alternative Proposal, the Company shall notify Parent of such, and the identity of the Person or that group of Persons involved, and shall provide copies of any written materials related thereto, and shall keep Parent informed on a reasonably may be expected to lead to, a Competing Proposal or (ii) initiate or participate in any discussions or negotiations (other than to seek clarifications current basis with respect to the Competing Proposal) regardingstatus, terms, discussions and negotiations with respect to such inquiry, proposal or that reasonably may be expected to lead to, a Competing Proposal offer or approve or recommend, or publicly propose to approve or recommend, a Competing Proposal or enter into any merger agreement, letter of intent, agreement in principle, share purchase agreement, asset purchase agreement or share exchange agreement, option agreement or other similar agreement relating to a Competing Proposal, or enter into any agreement or agreement in principle requiring the Company or the Operating Partnership to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder or resolve, propose or agree to do any of the foregoing, except as contemplated in Section 6.5(d). Without limiting the foregoing, the Company shall be responsible for any failure on the part of its Company Representatives to comply with this Section 6.5amendment thereto.
(bc) Any other provision of Notwithstanding anything in this Agreement notwithstandingto the contrary, at any time if prior to the receipt of the Company Shareholder Approval, if Stockholder Approval (i) the Company receives a bona fide written Competing Company Alternative Proposal from a third party (which was not solicited, initiated, encouraged or facilitated in violation of Section 6.5(a)) after the date hereof, the Company (x) may furnish, constitutes a Company Superior Proposal or cause to be furnished, non-public information with respect to the Company and the Company Subsidiaries to the Person who made such Competing Proposal and to its financing sources and Persons or entities working in concert with it (collectively, a “Third Party”), and (y) may participate which the Company Board determines in discussions good faith, after consultation with its outside financial and negotiations regarding legal advisors, would reasonably be expected to result in a Company Superior Proposal by the Person (or group of Persons) making such Competing Proposal, if, in the case of either clause Company Alternative Proposal and (x) or (y): (Aii) prior to taking such action, the Company enters into a confidentiality agreement with the Person who made such Competing Proposal with respect to such Competing Proposal that is substantially similar actions in (except for the absence of standstill provisionsA) to the Confidentiality Agreement dated as of July 5, 2007 between the Company and Parent (the “Confidentiality Agreement”), and (B) below, the Company Board determines in good faith, after consultation with its outside legal counsel and independent financial advisors, that such Competing Proposal is, or is reasonably likely to lead to, a Superior Proposal.
(c) The Company and the Operating Partnership shall provide prompt (within twenty-four (24) hours following receipt thereof) oral and written notice to Parent of (i) the receipt of any Competing Proposal, or any material modification or amendment to any Competing Proposal, by the Company, the Operating Partnership, any Company Subsidiary or any Company Representative, (ii) a copy of any documents or agreements provided in contemplation of such Competing Proposal (including any amendments, supplements or modifications thereto but excluding any financing documents or agreements it is not permitted to deliver as a result of confidentiality restrictions), and (iii) the identity of such Person or entity making any such Competing Proposal. The Company and the Operating Partnership shall keep Parent reasonably informed on a current basis, to the extent reasonably practicable, but in any event as promptly as practicable, of the status and material details (including any change to the material terms and conditions) of any such Competing Proposal. The Company and the Operating Partnership shall not, and shall cause each of the Company Subsidiaries not to, enter into any confidentiality agreement with any Person subsequent to the date hereof which prohibits the Company or the Operating Partnership from providing such information to Parent.
(d) Subject to this paragraph (d) and to Section 8.1(e), neither the Company Board nor any committee of the Company Board may (i) withdraw, qualify or modify or propose publicly to withdraw, qualify or modify, in each case, in a manner adverse to Parent, the Company Recommendation, or the approval or recommendation of any committee of the Company Board of the Merger or of any other transactions contemplated hereby, (ii) approve, recommend or endorse, or propose publicly to approve, recommend or endorse, a Competing Proposal (any action described in clauses (i) or (ii) being referred to as an “Adverse Recommendation Change”, it being agreed that the taking of any of the actions contemplated by Section 6.5(b), (c) or (f) shall not constitute, or be deemed to constitute, an Adverse Recommendation Change) or (iii) authorize or permit the Company or any of the Company Subsidiaries to enter into any agreement, arrangement or understanding (each, an “Acquisition Agreement”) contemplating, or that could reasonably be expected to lead to, a Competing Proposal (other than a confidentiality agreement in compliance with Section 6.5(b)). Notwithstanding the foregoing, at any time prior to receipt of the Company Shareholder Approval, the Company Board or a committee of the Company Board may (1) make an Adverse Recommendation Change for reasons not related to the receipt of a Competing Proposal if the Company Board determines in good faith after consultation with its independent financial advisors and outside legal counsel, that failure to take such action would be inconsistent with such directors' fiduciary duties under applicable law, then, prior to receipt of the directors’ duties Company Stockholder Approval, the Company may take the following actions: (A) furnish (or cause to be furnished by its Representatives) nonpublic information to the Persons (or group of Persons) making such Company Alternative Proposal and its Representatives and financing sources, if, and only if, prior to so furnishing such information, the Company receives from the persons (or group of persons) and its Representatives and financing sources an executed confidentiality agreement that contains provisions that are no less favorable in the aggregate to the Company or and its stockholders under applicable Law or (2) in response to a bona fide written Competing Proposal (which was not solicited, initiated, encouraged or facilitated in violation of Section 6.5(a)) made after Subsidiaries than the date hereof take an action referred to in clause (i), (ii) or (iii) above and, provisions contained in the case Confidentiality Agreement, and (B) engage in discussions or negotiations with the Persons (or group of clause Persons) and its Representatives with respect to the Company Alternative Proposal.
(iii), terminate d) Nothing contained in this Agreement in accordance with Section 8.1(e) if, after consultation with its independent financial advisors and outside legal counsel, shall prohibit the Company or the Company Board determines in good faith that such Competing Proposal constitutes a Superior Proposal (a “Subsequent Determination”); provided, however, that such actions may only be taken at a time that is after (I) the third (3rd) Business Day following Parent’s receipt of written notice from the Company that the Company Board is prepared to take such action, and (II) at the end of such period, the Company Board determines in good faith, after taking into account all amendments or revisions committed to by Parent and after consultation with its independent financial advisors and outside legal counsel, that such Competing Proposal remains a Superior Proposal relative to the Merger, as supplemented by any Counterproposal. Any such written notice shall specify the material terms and conditions of such applicable Competing Proposal, include the most current version of any Acquisition Agreement (including any amendments, supplements or modifications thereto), identify the person making such Competing Proposal and state that the Company Board otherwise intends to make a Subsequent Determination (subject to compliance with this subsection (d)). During any such three Business Day period, Parent shall be entitled to deliver to the Company a counterproposal to such Competing Proposal (a “Counterproposal”). For the avoidance of doubt, the parties hereto acknowledge and agree that any amendment to the financial terms or any other material amendment to any material term of a Competing Proposal which amendment affects the determination of whether the Competing Proposal is a Superior Proposal to any Counterproposal shall be treated as a new Competing Proposal for the purposes of this Section 6.5(d) (requiring a new written notice by the Company and a new three Business Day period). For purposes of clarification, the statement by the Company that it has received a Competing Proposal, that its Board will consider such Competing Proposal and that its Board continues to recommend this Agreement pending such consideration shall not be deemed an Adverse Recommendation Change.
(e) Upon execution of this Agreement, the Company, the Operating Partnership and the Company Subsidiaries shall cease immediately and cause to be terminated any and all existing activities, discussions, solicitations or negotiations with any parties conducted heretofore with respect to a Competing Proposal by or on behalf of the Company, the Operating Partnership or any of the Company Representatives. The Company shall use its reasonable best efforts to cause (including by written request) each Person with whom it has executed a confidentiality agreement within the twelve months prior to the date hereof in connection with its consideration of any Competing Proposal to return or destroy all confidential or other non-public information heretofore furnished to such Person by or on behalf of the Company, the Operating Partnership or any of the Company Representatives.
(f) Any other provision of this Agreement notwithstanding, the Company Board may at any time take and disclose disclosing to its holders of Company Common Shares stockholders a position contemplated by Rule Rules 14d-9 or Rule and 14e-2(a) promulgated under the Exchange Act, may issue a stop, look and listen announcement and may make any disclosure required by Rule 14a-9 promulgated under the Exchange Act or Item 1012(a) of Regulation Missuing any "stop-A; providedlook-and-listen" communication, howeverif, that neither in the Company nor the Company Board shall be permitted to recommend a Competing Proposal which is not a Superior Proposal; provided, further, that, for the avoidance of doubt, any public statements by the Company commenting on the merits of a Competing Proposal shall be an Adverse Recommendation Change other than (A) a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) of the Exchange Act, (B) an express rejection of a Competing Proposal or (C) an express reaffirmation good faith judgment of the Company Recommendation to Board, after consultation with its stockholders in favor outside legal advisors, such disclosure is required under applicable law; provided that, (i) such disclosure shall be made at the latest time permissible under applicable law and (ii) if such disclosure has the substantive effect of the Mergersa Company Change of Recommendation, it shall be deemed a Company Change of Recommendation.
(g) The Company shall not take any action to exempt any Person (other than Parent or any of its Affiliates and other than in connection with an Acquisition Agreement following a Subsequent Determination) from the restrictions on “control share acquisitions” contained in the Maryland Control Share Acquisition Act, as amended (or any similar provisions of the MRL) or otherwise cause such restrictions not to apply.
Appears in 1 contract
Sources: Merger Agreement (Sorensen Trust)