Other Proposals. (a) From the Original Agreement Date until the Closing Date, the Company shall not, and shall use its best efforts to ensure that its Affiliates, directors, officers, agents or other representatives (including, but not limited to, any investment banker, financial advisor, attorney or accountant) do not, directly or indirectly initiate any contact with, solicit, encourage or enter into or continue any negotiations, understandings or agreements with any Third Party with respect to, or in connection with, or furnish or disclose any non-public information regarding the Company or its Subsidiaries or their respective businesses to any Third Party in connection with, any Acquisition Proposal. Notwithstanding the foregoing, to the extent required by the fiduciary obligations of the Board of Directors of the Company after consultation with legal counsel, (i) the Company may, in response to an unsolicited request therefor, furnish non-public information with respect to the Company or its Subsidiaries or their respective businesses to any Qualified Third Party pursuant to a customary confidentiality agreement having terms no less favorable to the Company than those in the Confidentiality Agreement and discuss such information (but not any Acquisition Proposal and not any non-public information relating to the structure of the transactions contemplated hereby) with such Qualified Third Party and (ii) upon receipt by the Company of an Acquisition Proposal from a Qualified Third Party, if (A) the Company has complied fully and in a timely manner with its obligations to notify the Purchaser of the receipt of such Acquisition Proposal (and the identity of the offeror and the material terms of such proposal) in accordance with Section 6.02(b) hereof, (B) the Board of Directors of the Company has reasonably determined that such Acquisition Proposal, if consummated, would constitute an Overbid Transaction and (C) the Company has delivered a written notice to the Purchaser (an "Overbid Notice") advising it of the foregoing determination by the Board of Directors (which notice shall be accompanied by copies of the form of definitive agreement or other documentation proposed to be entered into in connection with the Acquisition Proposal, if any are then prepared), the Company may participate in discussions and negotiations with such Qualified Third Party regarding such Acquisition Proposal. Furthermore, if (v) the Company has delivered an Overbid Notice to the Purchaser (after compliance in full with each of the conditions precedent to the delivery of such a notice set forth in clauses (i) and (ii) of the immediately preceding sentence), (w) the Purchaser shall not have delivered to the Company within ten calendar days after receipt of such Overbid Notice a written offer (a "Topping Offer") to amend the terms of this Agreement in order to provide for consideration having a value at least $100,000 greater than the value of the consideration provided for under the Acquisition Proposal to which such Overbid Notice relates, (it being understood and agreed that, if the Purchaser does deliver a Topping Offer to the Company, the Company shall immediately cease to participate in discussions or negotiations with such Qualified Third Party regarding such Acquisition Proposal, unless and until the conditions precedent to engaging in such discussion or negotiations specified in this Section 6.02(a) are satisfied by a proposal thereafter submitted by such Qualified Third Party), (x) the terms of the Acquisition Proposal shall not have been modified in a manner adverse to the Company or the Shareholders after the date of the Overbid Notice (it being understood and agreed that the Company shall promptly advise the Purchaser in writing of the nature of any change in the terms thereof), (y) the Company shall have paid or shall have arranged for the payment of the Termination Fee to the Purchaser in accordance with Section 9.03 and the Company shall have paid or shall have arranged for the payment of the notes referred to in Sections 1.02(b) and 1.02(c) and (z) the Company shall have taken all action on its part required to cause the ▇▇▇▇▇▇▇ Money Escrow Agent to deliver the ▇▇▇▇▇▇▇ Money Deposit to the Purchaser (the conditions set forth in clauses (v), (w), (x), (y) and (z) above being hereinafter collectively referred to as the "Overbid Termination Conditions"), the Company may terminate this Agreement and enter into an agreement with a Qualified Third Party with respect to or in connection with an Overbid
Appears in 2 contracts
Sources: Stock Purchase Agreement (Nab Asset Corp), Stock Purchase Agreement (Centex Corp)
Other Proposals. (a) From the Original Agreement Date date hereof until the Closing Date, the Company and its Subsidiaries shall not, and shall use its best efforts to ensure that its Affiliates, directors, officers, agents or other representatives (including, but not limited permit any of their respective Representatives to, any investment banker, financial advisor, attorney or accountant) do not, directly or indirectly initiate any contact with, solicit, encourage or enter into or continue any discussions, negotiations, understandings or agreements with any Third Party with respect to, or in connection with, or furnish or disclose any non-public information regarding the Company or any of its Subsidiaries or their respective businesses to any Third Party in connection with, any Acquisition Proposal. Notwithstanding the foregoing, to the extent required by the fiduciary obligations of that the Board of Directors of the Company after consultation with legal counselor the Special Committee reasonably determines based on the advice of its counsel that it is required to do so by virtue of its fiduciary obligations under applicable law, the Company may (i) the Company may, in response to an unsolicited request therefor, furnish non-public information with respect to the Company or its Subsidiaries or their respective businesses to any Qualified Third Party pursuant to a customary confidentiality agreement having terms no less favorable to the Company than those in the Confidentiality Agreement and discuss such information (but not any Acquisition Proposal and not any non-public information relating to the structure of the Merger or the other transactions contemplated hereby, other than any such information which the Company demonstrates was independently developed solely by the Company and its Representatives) with such Qualified Third Party and Party, (ii) upon receipt by the Company of an a Qualified Acquisition Proposal from a Qualified Third Party, if (A) the Company has complied fully and in a timely manner with its obligations to notify the Purchaser of the receipt of such Acquisition Proposal (and the identity of the offeror and the material terms of such proposal) in accordance with Section 6.02(b) hereof, (B) the Board of Directors of the Company has reasonably determined that such Acquisition Proposal, if consummated, would constitute an Overbid Transaction and (C) the Company has delivered a written notice to the Purchaser (an "Overbid Notice") advising it of the foregoing determination by the Board of Directors (which notice shall be accompanied by copies of the form of definitive agreement or other documentation proposed to be entered into in connection with the Acquisition Proposal, if any are then prepared), the Company may participate in discussions and negotiations with such Qualified Third Party regarding such Qualified Acquisition Proposal. Furthermore, if Proposal (v) the Company has delivered an Overbid Notice but not enter into any agreements with respect thereto except as permitted pursuant to the Purchaser express terms of clause (after compliance in full with iii) below) if each of the conditions precedent to Overbid Negotiation Conditions is
(b) In the delivery of such a notice set forth in clauses (i) and (ii) event that either the Company or any of the immediately preceding sentence)Shareholder Parties shall directly or indirectly receive any offer, (w) proposal or inquiry relating to an Acquisition Proposal, such party shall notify CREC within one Business Day after the Purchaser shall not have delivered to the Company within ten calendar days after receipt of such Overbid Notice a written offer (a "Topping Offer") offer, proposal or inquiry and shall, in any such notice to amend CREC, indicate the identity of the offeror and set forth all of the material terms of this Agreement in order to provide for consideration having a value at least $100,000 greater than such offer, proposal or inquiry. The Company and the value Shareholder Parties shall keep CREC fully informed of the consideration provided for under status and details of any such offer, proposal or inquiry.
(c) Without the Acquisition Proposal to which such Overbid Notice relates, (it being understood and agreed that, if the Purchaser does deliver a Topping Offer to the Companyprior written consent of CREC, the Company shall immediately cease to participate in discussions not modify or negotiations with such Qualified release any Third Party regarding from any confidentiality or standstill agreement to which the Company is a party if such action would have the purpose or effect of permitting or facilitating the submission of an Acquisition Proposal, unless and until the conditions precedent to engaging in such discussion or negotiations specified in this Section 6.02(a) are satisfied by a proposal thereafter submitted Proposal by such Qualified Third Party), (x) the terms of the Acquisition Proposal shall not have been modified in a manner adverse to the Company or the Shareholders after the date of the Overbid Notice (it being understood and agreed that the Company shall promptly advise the Purchaser in writing of the nature of any change in the terms thereof), (y) the Company shall have paid or shall have arranged for the payment of the Termination Fee to the Purchaser in accordance with Section 9.03 and the Company shall have paid or shall have arranged for the payment of the notes referred to in Sections 1.02(b) and 1.02(c) and (z) the Company shall have taken all action on its part required to cause the ▇▇▇▇▇▇▇ Money Escrow Agent to deliver the ▇▇▇▇▇▇▇ Money Deposit to the Purchaser (the conditions set forth in clauses (v), (w), (x), (y) and (z) above being hereinafter collectively referred to as the "Overbid Termination Conditions"), the Company may terminate this Agreement and enter into an agreement with a Qualified Third Party with respect to or in connection with an Overbid.
Appears in 2 contracts
Sources: Merger Agreement (Janal LTD Partnership), Agreement and Plan of Merger (Cavco Industries Inc)
Other Proposals. (a) From Notwithstanding anything to the Original contrary contained in this Agreement, during the period beginning on the date of this Agreement Date and continuing until 12:01 a.m. (Eastern Time) on the Closing 30th calendar day after the date of this Agreement (the “No-Shop Period Start Date”), the Company shall not, and shall use its best efforts to ensure that its AffiliatesSubsidiaries and their respective officers, directors, officersemployees, representatives, agents or other representatives and affiliates (including, but not limited towithout limitation, any investment banker, financial advisor, attorney or accountantaccountant retained by Company or any of its Subsidiaries) do not(collectively, “Responsible Parties”) shall have the right, directly or indirectly initiate any contact withindirectly, solicit, encourage or enter into or continue any negotiations, understandings or agreements with any Third Party under the direction of the Special Committee (which has been authorized to act on behalf of the Company Board and the Company with respect toto any action permitted or contemplated by this Section 6.4), to (i) initiate, solicit and encourage, whether publicly or in connection withotherwise, Transaction Proposals (or furnish any inquiry or disclose the making of any proposal or offer or other efforts or attempts that may reasonably be expected to lead to a Transaction Proposal), including by way of furnishing information (including non-public information regarding and data) regarding, and affording access to the business, properties, assets, books, records and personnel of, the Company and its Subsidiaries to any Person pursuant to one or more confidentiality agreements executed by such Person; provided that the Company shall promptly make available to Parent any material non-public information concerning the Company or its Subsidiaries that is provided to any Person given such access that was not previously made available to Parent or its Responsible Parties, and (ii) engage in, enter into, continue, maintain or otherwise participate in any discussions or negotiations with any Person or group of Persons with respect to any Transaction Proposals (or any inquiry, proposal or offer or other efforts or attempts that may reasonably be expected to lead to a Transaction Proposal) and otherwise cooperate with or assist or participate in or facilitate any such inquiries, proposals, offers, efforts, attempts, discussions or negotiations.
(b) Except as may relate to any Excluded Party or as expressly permitted by this Section 6.4, from and after the No-Shop Period Start Date until the Effective Time or the earlier termination of this Agreement, none of the Company, any of its Subsidiaries, or any of their respective businesses to any Third Party in connection withResponsible Parties, any Acquisition Proposal. Notwithstanding the foregoingwill, to the extent required directly or indirectly, initiate, solicit or knowingly encourage (including by the fiduciary obligations way of the Board of Directors of the Company after consultation with legal counsel, (i) the Company may, in response to an unsolicited request therefor, furnish furnishing non-public information or assistance), or take any other action to facilitate knowingly, any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Transaction Proposal, or enter into or maintain or continue discussions or negotiate with respect any individual, corporation, partnership, joint venture, association, trust, unincorporated organization or other entity (“Person”) in furtherance of such inquiries or to obtain a Transaction Proposal or agree to or endorse any Transaction Proposal or authorize or permit any Responsible Party to take any such action; provided, however, that nothing contained in this Agreement shall prohibit the Company Board (acting through the Special Committee) from, prior to the Company Stockholders’ Meeting, but subject to compliance with Section 6.4(c): (i) furnishing information to or its Subsidiaries entering into discussions or their respective businesses to negotiations with any Qualified Third Party pursuant to Person that has made (and not withdrawn) a customary confidentiality agreement having terms no less favorable to bona fide Transaction Proposal which was not directly or indirectly solicited in violation of this Section 6.4 and which the Company than those Board (acting through the Special Committee), after consultation with its financial advisors and outside legal counsel, determines in the Confidentiality Agreement and discuss such information good faith constitutes or would reasonably be expected to result in a Superior Proposal, if: (but not any Acquisition Proposal and not any non-public information relating to the structure of the transactions contemplated hereby) with such Qualified Third Party and (ii) upon receipt by the Company of an Acquisition Proposal from a Qualified Third Party, if (A1) the Company has complied fully and in a timely manner Board (acting through the Special Committee), after consultation with its obligations outside legal counsel, determines in good faith that the failure to notify the Purchaser of the receipt of take such Acquisition Proposal action would be inconsistent with its fiduciary duties to stockholders under applicable law and (and the identity of the offeror and the material terms of 2) prior to taking such proposal) in accordance with Section 6.02(b) hereof, (B) the Board of Directors of action the Company has reasonably determined that such Acquisition Proposal, if consummated, would constitute an Overbid Transaction and (C) the Company has delivered a written provides prompt notice to the Purchaser (an "Overbid Notice") advising it of the foregoing determination by the Board of Directors (which notice shall be accompanied by copies of the form of definitive agreement or other documentation proposed to be entered into in connection with the Acquisition Proposal, if any are then prepared), the Company may participate in discussions and negotiations with such Qualified Third Party regarding such Acquisition Proposal. Furthermore, if (v) the Company has delivered an Overbid Notice to the Purchaser (after compliance in full with each of the conditions precedent effect that it is furnishing such information to the delivery of such a notice set forth in clauses (i) and (ii) of the immediately preceding sentence), (w) the Purchaser shall not have delivered to the Company within ten calendar days after receipt of such Overbid Notice a written offer (a "Topping Offer") to amend the terms of this Agreement in order to provide for consideration having a value at least $100,000 greater than the value of the consideration provided for under the Acquisition Proposal to which such Overbid Notice relates, (it being understood and agreed that, if the Purchaser does deliver a Topping Offer to the Company, the Company shall immediately cease to participate in or entering into discussions or negotiations with such Qualified Third Person and receives from such Person an executed confidentiality agreement; (ii) failing to make, withholding, withdrawing, qualifying, modifying or amending the Company Board Recommendation if there exists a Superior Proposal or Intervening Event and the Company Board (acting through the Special Committee), after consultation with its outside legal counsel, determines in good faith that the failure to take such action would be inconsistent with its fiduciary duties to stockholders under applicable law in connection with such Superior Proposal or Intervening Event; or (iii) making to the Company’s stockholders any recommendation and related filing with the SEC as required by Rule 14e-2 and 14d-9 under the Exchange Act, with respect to any Transaction Proposal or Intervening Event, or taking any other legally required action with respect to such Transaction Proposal or Intervening Event (including, without limitation, the making of public disclosures as may be necessary or reasonably advisable under applicable securities laws) if the Company Board (acting through the Special Committee), after consultation with its outside legal counsel, determines in good faith that the failure to take such action would be inconsistent with its fiduciary duties to stockholders under applicable law. Except as may relate to any Excluded Party regarding such Acquisition Proposalor as otherwise permitted by the foregoing provisions of this Section 6.4, unless after the No-Shop Period Start Date, the Company shall, and until the conditions precedent shall cause its Subsidiaries and shall use reasonable best efforts to engaging in such cause all Responsible Parties to, promptly cease and terminate any then existing solicitation, initiation, encouragement, activity, discussion or negotiations specified negotiation with any Person conducted theretofore by the Company or any Responsible Parties with respect to the foregoing and shall use its reasonable best efforts to cause any such Person (or its agents or advisors) in this Section 6.02(apossession of non-public information in respect of the Company or any of its Subsidiaries that was furnished by or on behalf of the Company and/or its Subsidiaries to return or destroy (and confirm destruction of) are satisfied by a proposal thereafter submitted by all such Qualified Third Partyinformation. In the event of an exercise of the Company’s or the Company Board’s rights under clauses (i), (xii) or (iii) above and subject to compliance with this Section 6.4, notwithstanding anything contained in this Agreement to the terms contrary, such exercise of rights shall not constitute a breach of this Agreement by the Company. For the avoidance of doubt, notwithstanding the commencement of the Acquisition Proposal shall not have been modified in a manner adverse to the Company or the Shareholders after the date of the Overbid Notice (it being understood and agreed that the Company shall promptly advise the Purchaser in writing of the nature of any change in the terms thereof), (y) the Company shall have paid or shall have arranged for the payment of the Termination Fee to the Purchaser in accordance with Section 9.03 and the Company shall have paid or shall have arranged for the payment of the notes referred to in Sections 1.02(b) and 1.02(c) and (z) the Company shall have taken all action on its part required to cause the ▇▇▇▇▇▇▇ Money Escrow Agent to deliver the ▇▇▇▇▇▇▇ Money Deposit to the Purchaser (the conditions set forth in clauses (v), (w), (x), (y) and (z) above being hereinafter collectively referred to as the "Overbid Termination Conditions")No-Shop Period Start Date, the Company may terminate this Agreement continue to engage in the activities described in Section 6.4(a) (subject to the limitations and enter into an agreement obligations set forth therein) with a Qualified Third Party respect to, and the restrictions in Section 6.4(b) shall not apply to, any Excluded Party, including with respect to any amended or in connection with an Overbidmodified Transaction Proposal submitted by any Excluded Party following the No-Shop Period Start Date. For purposes of this Agreement:
Appears in 2 contracts
Sources: Merger Agreement (Dole Food Co Inc), Merger Agreement (Murdock David H)
Other Proposals. (a) From the Original Agreement Date date hereof until the Closing Date, the Company shall not, and shall use its best efforts to ensure that its Affiliates, directors, officers, agents or other representatives (including, but not limited to, any investment banker, financial advisor, attorney or accountant) do not, directly or indirectly initiate any contact with, solicit, encourage or enter into or continue any negotiations, understandings or agreements with any Third Party with respect to, or in connection with, or furnish or disclose any non-public information regarding the Company or its Subsidiaries or their respective businesses to any Third Party in connection with, any Acquisition Proposal. Notwithstanding the foregoing, to the extent required by the fiduciary obligations of the Board of Directors of the Company after consultation with legal counsel, (i) the 35 42 Company may, in response to an unsolicited request therefor, furnish non-public information with respect to the Company or its Subsidiaries or their respective businesses to any Qualified Third Party pursuant to a customary confidentiality agreement having terms no less favorable to the Company than those in the Confidentiality Agreement and discuss such information (but not any Acquisition Proposal and not any non-public information relating to the structure of the transactions contemplated hereby) with such Qualified Third Party and (ii) upon receipt by the Company of an Acquisition Proposal from a Qualified Third Party, if (A) the Company has complied fully and in a timely manner with its obligations to notify the Purchaser of the receipt of such Acquisition Proposal (and the identity of the offeror and the material terms of such proposal) in accordance with Section 6.02(b) hereof, (B) the Board of Directors of the Company has reasonably determined that such Acquisition Proposal, if consummated, would constitute an Overbid Transaction and (C) the Company has delivered a written notice to the Purchaser (an "Overbid Notice") advising it of the foregoing determination by the Board of Directors (which notice shall be accompanied by copies of the form of definitive agreement or other documentation proposed to be entered into in connection with the Acquisition Proposal, if any are then prepared), the Company may participate in discussions and negotiations with such Qualified Third Party regarding such Acquisition Proposal. Furthermore, if (v) the Company has delivered an Overbid Notice to the Purchaser (after compliance in full with each of the conditions precedent to the delivery of such a notice set forth in clauses (i) and (ii) of the immediately preceding sentence), (w) the Purchaser shall not have delivered to the Company within ten calendar days after receipt of such Overbid Notice a written offer (a "Topping Offer") to amend the terms of this Agreement in order to provide for consideration having a value at least $100,000 greater than the value of the consideration provided for under the Acquisition Proposal to which such Overbid Notice relates, (it being understood and agreed that, if the Purchaser does deliver a Topping Offer to the Company, the Company shall immediately cease to participate in discussions or negotiations with such Qualified Third Party regarding such Acquisition Proposal, unless and until the conditions precedent to engaging in such discussion or negotiations specified in this Section 6.02(a) are satisfied by a proposal thereafter submitted by such Qualified Third Party), (x) the terms of the Acquisition Proposal shall not have been modified in a manner adverse to the Company or the Shareholders after the date of the Overbid Notice (it being understood and agreed that the Company shall promptly advise the Purchaser in writing of the nature of any change in the terms thereof), (y) the Company shall have paid or shall have arranged for the payment of the Termination Fee to the Purchaser in accordance with Section 9.03 and the Company shall have paid or shall have arranged for the payment of the notes referred to in Sections 1.02(b) and 1.02(c) and (z) the Company shall have taken all action on its part required to cause the Earn▇▇▇ ▇▇▇▇▇▇▇ Money ey Escrow Agent to deliver the Earn▇▇▇ ▇▇▇▇▇▇▇ Money ey Deposit to the Purchaser (the conditions set forth in clauses (v), (w), (x), (y) and (z) above being hereinafter collectively referred to as the "Overbid Termination Conditions"), the Company may terminate this Agreement and enter into an agreement with a Qualified Third Party with respect to or in connection with an Overbidagreement
Appears in 1 contract
Other Proposals. (a) From the Original Agreement Date until the Closing Date, the Company shall not, and shall use its best efforts to ensure that its Affiliates, directors, officers, agents or other representatives (including, but not limited to, any investment banker, financial advisor, attorney or accountant) do not, directly or indirectly initiate any contact with, solicit, encourage or enter into or continue any negotiations, understandings or agreements with any Third Party with respect to, or in connection with, or furnish or disclose any non-public information regarding the Company or its Subsidiaries or their respective businesses to any Third Party in connection with, any Acquisition Proposal. Notwithstanding the foregoing, to the extent required by the fiduciary obligations of the The Board of Directors of the Company after consultation SAH may engage in negotiations or discussions with legal counsel, (i) the Company may, in response to an unsolicited request therefor, furnish non-public information with respect to the Company any person other than Sequoia or its Subsidiaries Affiliates (any such person a “Third Party”) that, without prior solicitation by or their respective businesses negotiation with SAH, has made a Superior Proposal and furnish to any Qualified such Third Party nonpublic information relating to SAH or any of its Subsidiaries pursuant to a customary confidentiality agreement having terms no less favorable agreement; provided that Sequoia shall be promptly furnished with such nonpublic information following the furnishing thereof to such Third Party (to the Company than those in the Confidentiality Agreement and discuss extent such nonpublic information (but has not any Acquisition Proposal and not any non-public information relating been previously furnished by SAH to the structure of the transactions contemplated hereby) with such Qualified Third Party and (ii) upon receipt by the Company of an Acquisition Proposal from a Qualified Third Party, if (A) the Company has complied fully and in a timely manner with its obligations to notify the Purchaser of the Sequoia). Following receipt of such Acquisition Proposal (and the identity of the offeror and the material terms of such proposal) in accordance with Section 6.02(b) hereofSuperior Proposal, (B) the SAH’s Board of Directors of the Company has reasonably determined that such Acquisition Proposalmay fail to make, if consummated, would constitute an Overbid Transaction and (C) the Company has delivered a written notice to the Purchaser (an "Overbid Notice") advising it of the foregoing determination by the Board of Directors (which notice shall be accompanied by copies of the form of definitive agreement withdraw or other documentation proposed to be entered into in connection with the Acquisition Proposal, if any are then prepared), the Company may participate in discussions and negotiations with such Qualified Third Party regarding such Acquisition Proposal. Furthermore, if (v) the Company has delivered an Overbid Notice to the Purchaser (after compliance in full with each of the conditions precedent to the delivery of such a notice set forth in clauses (i) and (ii) of the immediately preceding sentence), (w) the Purchaser shall not have delivered to the Company within ten calendar days after receipt of such Overbid Notice a written offer (a "Topping Offer") to amend the terms of this Agreement in order to provide for consideration having a value at least $100,000 greater than the value of the consideration provided for under the Acquisition Proposal to which such Overbid Notice relates, (it being understood and agreed that, if the Purchaser does deliver a Topping Offer to the Company, the Company shall immediately cease to participate in discussions or negotiations with such Qualified Third Party regarding such Acquisition Proposal, unless and until the conditions precedent to engaging in such discussion or negotiations specified in this Section 6.02(a) are satisfied by a proposal thereafter submitted by such Qualified Third Party), (x) the terms of the Acquisition Proposal shall not have been modified modify in a manner adverse to Sequoia its recommendation to its stockholders referred to in Section 5.8 below, submit such Superior Proposal to a vote of its stockholders, and/or take any action advisable or required under law, if SAH’s Board of Directors determines in good faith that the Company board must take such action to comply with its fiduciary duties under applicable law. Nothing contained herein shall prevent SAH’s Board of Directors from complying with Rule 14e-2(a) or Rule 14d-9 under the Shareholders Exchange Act with regard to an Acquisition Proposal or from making other disclosures to SAH’s stockholders if required under applicable law; provided, however, that any such actions shall comply with the other requirements of this Section 5.7.
(b) SAH shall continue to keep Sequoia informed, on a current basis, with respect to such Superior Proposal after taking such action. In addition, SAH shall notify Sequoia promptly after receipt by SAH of any Acquisition Proposal, any written indication that a third party is considering making an Acquisition Proposal or of any request for information relating to SAH or any of its Subsidiaries or for access to the business, properties, assets, books or records of SAH or any of its Subsidiaries by any third party that may be considering making, or has made, an Acquisition Proposal. SAH shall provide such notice orally and within one (1) Business Day in writing and shall identify the third party making, and the terms and conditions of, any such Acquisition Proposal, indication or request. SAH shall provide within one (1) Business Day of receipt a copy of any documentation of the terms of any such inquiry, proposal or offer, and thereafter shall keep Sequoia informed, on a current basis, of the status and terms of any such proposals or offers and the status of any such discussions or negotiations (including by delivering any further documentation of the type referred to above).
(c) If this Agreement shall not have previously terminated, SAH shall pay Sequoia a fee of one million dollars ($1,000,000) (the “SAH Termination Fee”) no later than 10 days after the date of the Overbid Notice first to occur: (it being understood and agreed that the Company shall promptly advise the Purchaser in writing i) of the nature execution by SAH of any change in agreement with a Third Party (other than a confidentiality agreement) providing for the terms thereof)sale of substantially all of the assets of SAH or providing for the merger of SAH with a Third Party, (yii) the Company shall have paid approval or shall have arranged for recommendation to the stockholders of SAH of a Superior Proposal, or the consummation of a Superior Proposal. Sequoia agrees that payment of the SAH Termination Fee to Fee, if such fee is actually paid as provided herein, will be the Purchaser sole and exclusive remedy of Sequoia upon termination of this Agreement. SAH acknowledges that the agreements contained in accordance with this Section 9.03 and the Company shall have paid or shall have arranged for the payment 5.7 are an integral part of the notes referred to in Sections 1.02(b) transactions contemplated by this Agreement, and 1.02(c) and (z) the Company shall have taken all action on its part required to cause the ▇▇▇▇▇▇▇ Money Escrow Agent to deliver the ▇▇▇▇▇▇▇ Money Deposit to the Purchaser (the conditions set forth in clauses (v)that, (w)without these agreements, (x), (y) and (z) above being hereinafter collectively referred to as the "Overbid Termination Conditions"), the Company may terminate this Agreement and Sequoia would not enter into an agreement with a Qualified Third Party with respect to or in connection with an Overbidthis Agreement.
Appears in 1 contract
Other Proposals. (a) From the Original Agreement Date date hereof until the Closing Date, the Company Vista Parties and the Subsidiaries shall not, and shall use its their best efforts not to ensure that its permit their respective Affiliates, directors, officers, agents or other representatives (including, but not limited to, any investment banker, financial advisor, attorney or accountant) do notto, directly or indirectly initiate any contact with, solicit, encourage or enter into or continue any negotiations, understandings or agreements with any Third Party with respect to, or in connection with, or furnish or disclose any non-public information regarding the Company or its Subsidiaries or their respective businesses to any Third Party in connection with, any Acquisition Proposal. Notwithstanding the foregoing, to the extent required by the fiduciary obligations of the Board of Directors of the Company after consultation with legal based on the advice of counsel, (i) the Company may, in response to an unsolicited request therefor, furnish non-public information with respect to the Company or its Subsidiaries or their respective businesses to any Qualified Third Party pursuant to a customary confidentiality agreement having terms no less favorable to the Company than those in the Confidentiality Agreement and discuss such information (but not any Acquisition Proposal and not any non-public information relating to the structure of the transactions contemplated hereby, other than any information which the Company can demonstrate was independently developed by it or its advisors) with such Qualified Third Party and (ii) upon receipt by the Company of an Acquisition Proposal from a Qualified Third Party, if (A) the Company has complied fully and in a timely manner with its obligations to notify the Purchaser of the receipt of such Acquisition Proposal (and the identity of the offeror and the material terms of such proposal) in accordance with Section 6.02(b) hereof, (B) the Board of Directors of the Company has reasonably determined that such Acquisition Proposal, if consummated, would constitute an Overbid Transaction and (C) the Company has delivered a written notice to the Purchaser (an "Overbid Notice") advising it of the foregoing determination by the Board of Directors (which notice shall be accompanied by copies of the form of definitive agreement or other documentation proposed to be entered into in connection with the Acquisition Proposal, if any are then prepared), the Company may participate in discussions and negotiations with such Qualified Third Party regarding such Acquisition Proposal. Furthermore, if (v) the Company has delivered an Overbid Notice to the Purchaser (after compliance in full with each of the conditions precedent to the delivery of such a notice set forth in clauses (i) and (ii) of the immediately preceding sentence), (w) the Purchaser shall not have delivered to the Company within ten calendar days after receipt of such Overbid Notice a written offer (a "Topping Offer") to amend the terms of this Agreement in order to provide for consideration attributable to the Existing Securities having a value at least $100,000 1,000,000 greater than the value of the consideration provided for under the Acquisition Proposal to which such Overbid Notice relates, which offer shall state that it may not be withdrawn or revoked by the Purchaser unless the Company and the Purchaser do not enter into an amendment to this Agreement to reflect the acceptance of the Topping Offer within ten calendar days after receipt thereof by the Company (it being understood and agreed that, if the Purchaser does deliver a Topping Offer to the Company, the Company shall immediately cease to participate in discussions or negotiations with such Qualified Third Party regarding such Acquisition Proposal, unless and until the conditions precedent to engaging in such discussion or negotiations specified in this Section 6.02(a) are satisfied by a proposal thereafter submitted by such Qualified Third Party), (x) the terms of the Acquisition Proposal shall not have been modified in a manner adverse to the Company or the Shareholders holders of Existing Securities after the date of the Overbid Notice (it being understood and agreed that the Company shall promptly advise the Purchaser in writing of the nature of any change in the terms thereof), (y) either the Company shall have paid or shall have arranged for the payment of the Termination Fee to the Purchaser (if the Company shall not have theretofore delivered the Termination Fee to the Termination Fee Escrow Agent) or the Vista Parties shall have taken all action on their part required in accordance with Section 9.03 and order to cause the Termination Fee Escrow Agent to deliver the Termination Fee Deposit to the Company (if the Company shall have paid or shall have arranged for theretofore delivered the payment of Termination Fee to the notes referred to in Sections 1.02(b) and 1.02(cTermination Fee Escrow Agent) and (z) the Company Vista Parties shall have taken all action on its their part required to cause the Earn▇▇▇ ▇▇▇▇▇▇▇ Money ey Escrow Agent to deliver the Earn▇▇▇ ▇▇▇▇▇▇▇ Money ey Deposit to the Purchaser (the conditions set forth in clauses (v), (w), (x), (y) and (z) above being hereinafter collectively referred to as the "Overbid Termination Conditions"), the Company may terminate this Agreement and enter into an agreement with a Qualified Third Party with respect to an Overbid Transaction. It is expressly understood and agreed that, if any Affiliates, directors, officers, agents or other representatives (including, but not limited to, any investment banker, financial advisor, attorney or accountant) of the Company, whether or not such persons are purporting to act on behalf of the Company, engage in connection with any conduct involving the furnishing of information to, the solicitation of, or participation in discussions or negotiations with, a Third Party which, if performed by the Company, would constitute a breach of the provisions of this Section 6.02(a), then, notwithstanding anything to the contrary contained herein, such Third Party shall not be deemed a Qualified Third Party for purposes of this Agreement.
(b) In the event the Company shall directly or indirectly receive any offer, proposal or inquiry regarding an OverbidAcquisition Proposal, the Company shall notify the Purchaser within one Business Day after the receipt of such offer, proposal or inquiry and shall, in any such notice to the Purchaser, indicate the identity of the offeror and all of the material terms of such offer, proposal or inquiry.
(c) The Company shall not modify, or release any Third Party from any confidentiality or standstill agreement to which the Company is a party (exclusive of those in which the Company is solely the recipient rather than the provider of confidential information).
Appears in 1 contract
Other Proposals. (a) From Notwithstanding anything to the Original contrary contained in this Agreement, during the period beginning on the date of this Agreement Date and continuing until 12:01 a.m. (Eastern Time) on the Closing 30th calendar day after the date of this Agreement (the “NoShop Period Start Date”), the Company shall not, and shall use its best efforts to ensure that its AffiliatesSubsidiaries and their respective officers, directors, officersemployees, representatives, agents or other representatives and affiliates (including, but not limited towithout limitation, any investment banker, financial advisor, attorney or accountantaccountant retained by Company or any of its Subsidiaries) do not(collectively, “Responsible Parties”) shall have the right, directly or indirectly initiate any contact withindirectly, solicit, encourage or enter into or continue any negotiations, understandings or agreements with any Third Party under the direction of the Special Committee (which has been authorized to act on behalf of the Company Board and the Company with respect toto any action permitted or contemplated by this Section 6.4), to (i) initiate, solicit and encourage, whether publicly or in connection withotherwise, Transaction Proposals (or furnish any inquiry or disclose the making of any non-public proposal or offer or other efforts or attempts that may reasonably be expected to lead to a Transaction Proposal), including by way of furnishing information regarding (including nonpublic information and data) regarding, and affording access to the business, properties, assets, books, records and personnel of, the Company and its Subsidiaries to any Person pursuant to one or more confidentiality agreements executed by such Person; provided that the Company shall promptly make available to Parent any material nonpublic information concerning the Company or its Subsidiaries or their respective businesses that is provided to any Third Party in connection with, any Acquisition Proposal. Notwithstanding the foregoing, Person given such access that was not previously made available to the extent required by the fiduciary obligations of the Board of Directors of the Company after consultation with legal counsel, (i) the Company may, in response to an unsolicited request therefor, furnish non-public information with respect to the Company Parent or its Subsidiaries or their respective businesses to any Qualified Third Party pursuant to a customary confidentiality agreement having terms no less favorable to the Company than those in the Confidentiality Agreement and discuss such information (but not any Acquisition Proposal and not any non-public information relating to the structure of the transactions contemplated hereby) with such Qualified Third Party Responsible Parties, and (ii) upon receipt engage in, enter into, continue, maintain or otherwise participate in any discussions or negotiations with any Person or group of Persons with respect to any Transaction Proposals (or any inquiry, proposal or offer or other efforts or attempts that may reasonably be expected to lead to a Transaction Proposal) and otherwise cooperate with or assist or participate in or facilitate any such inquiries, proposals, offers, efforts, attempts, discussions or negotiations.
(b) Except as may relate to any Excluded Party or as expressly permitted by this Section 6.4, from and after the No Shop Period Start Date until the Effective Time or the earlier termination of this Agreement, none of the Company, any of its Subsidiaries, or any of their respective Responsible Parties, will, directly or indirectly, initiate, solicit or knowingly encourage (including by way of furnishing nonpublic information or assistance), or take any other action to facilitate knowingly, any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Transaction Proposal, or enter into or maintain or continue discussions or negotiate with any individual, corporation, partnership, joint venture, association, trust, unincorporated organization or other entity (“Person”) in furtherance of such inquiries or to obtain a Transaction Proposal or agree to or endorse any Transaction Proposal or authorize or permit any Responsible Party to take any such action; provided, however, that nothing contained in this Agreement shall prohibit the Company Board (acting through the Special Committee) from, prior to the Company Stockholders’ Meeting, but subject to compliance with Section 6.4(c): (i) furnishing information to or entering into discussions or negotiations with any Person that has made (and not withdrawn) a bona fide Transaction Proposal which was not directly or indirectly solicited in violation of an Acquisition Proposal from this Section 6.4 and which the Company Board (acting through the Special Committee), after consultation with its financial advisors and outside legal counsel, determines in good faith constitutes or would reasonably be expected to result in a Qualified Third PartySuperior Proposal, if if: (A1) the Company has complied fully and in a timely manner Board (acting through the Special Committee), after consultation with its obligations outside legal counsel, determines in good faith that the failure to notify the Purchaser of the receipt of take such Acquisition Proposal action would be inconsistent with its fiduciary duties to stockholders under applicable law and (and the identity of the offeror and the material terms of 2) prior to taking such proposal) in accordance with Section 6.02(b) hereof, (B) the Board of Directors of action the Company has reasonably determined that such Acquisition Proposal, if consummated, would constitute an Overbid Transaction and (C) the Company has delivered a written provides prompt notice to the Purchaser (an "Overbid Notice") advising it of the foregoing determination by the Board of Directors (which notice shall be accompanied by copies of the form of definitive agreement or other documentation proposed to be entered into in connection with the Acquisition Proposal, if any are then prepared), the Company may participate in discussions and negotiations with such Qualified Third Party regarding such Acquisition Proposal. Furthermore, if (v) the Company has delivered an Overbid Notice to the Purchaser (after compliance in full with each of the conditions precedent effect that it is furnishing such information to the delivery of such a notice set forth in clauses (i) and (ii) of the immediately preceding sentence), (w) the Purchaser shall not have delivered to the Company within ten calendar days after receipt of such Overbid Notice a written offer (a "Topping Offer") to amend the terms of this Agreement in order to provide for consideration having a value at least $100,000 greater than the value of the consideration provided for under the Acquisition Proposal to which such Overbid Notice relates, (it being understood and agreed that, if the Purchaser does deliver a Topping Offer to the Company, the Company shall immediately cease to participate in or entering into discussions or negotiations with such Qualified Third Party regarding Person and receives from such Acquisition Proposal, unless and until the conditions precedent to engaging in such discussion or negotiations specified in this Section 6.02(a) are satisfied by a proposal thereafter submitted by such Qualified Third Party), (x) the terms of the Acquisition Proposal shall not have been modified in a manner adverse to the Company or the Shareholders after the date of the Overbid Notice (it being understood and agreed that the Company shall promptly advise the Purchaser in writing of the nature of any change in the terms thereof), (y) the Company shall have paid or shall have arranged for the payment of the Termination Fee to the Purchaser in accordance with Section 9.03 and the Company shall have paid or shall have arranged for the payment of the notes referred to in Sections 1.02(b) and 1.02(c) and (z) the Company shall have taken all action on its part required to cause the ▇▇▇▇▇▇▇ Money Escrow Agent to deliver the ▇▇▇▇▇▇▇ Money Deposit to the Purchaser (the conditions set forth in clauses (v), (w), (x), (y) and (z) above being hereinafter collectively referred to as the "Overbid Termination Conditions"), the Company may terminate this Agreement and enter into Person an agreement with a Qualified Third Party with respect to or in connection with an Overbidexecuted confidentiality agreement;
Appears in 1 contract
Sources: Merger Agreement
Other Proposals. (a) From the Original Agreement Date until the Closing Date, the Company HBI shall not, and shall use its best efforts to ensure that its Affiliates, directors, officers, agents not solicit or other representatives (including, but not limited to, any investment banker, financial advisor, attorney encourage inquiries or accountant) do not, directly or indirectly initiate any contact with, solicit, encourage or enter into or continue any negotiations, understandings or agreements with any Third Party proposals with respect to, or in connection withfurnish any information relating to, or furnish participate in any negotiations or disclose discussions concerning any non-public information regarding the Company acquisition or its Subsidiaries purchase of all or their respective businesses to any Third Party in connection with, any Acquisition Proposal. Notwithstanding the foregoing, to the extent required by the fiduciary obligations a substantial equity interest or portion of the Board assets in or of Directors HBI or any business combination with HBI other than as contemplated by this Agreement, or authorize or permit any officer, director, agent or affiliate of it to do any of the Company after consultation with legal counselabove, (i) the Company mayprovided, in response however, that it may respond to an unsolicited request thereforunsolicited, furnish non-public information with respect to the Company or its Subsidiaries or their respective businesses to any Qualified Third Party pursuant to a customary confidentiality agreement having terms no less favorable to the Company than those in the Confidentiality Agreement and discuss such information (but not any Acquisition Proposal and not any non-public information relating to the structure of the transactions contemplated hereby) with such Qualified Third Party and (ii) upon receipt by the Company of an Acquisition Proposal from a Qualified Third Partybona fide, if (A) the Company has complied fully and in a timely manner with its obligations to notify the Purchaser of the receipt of such Acquisition Proposal (and the identity of the offeror and the material terms of such proposal) in accordance with Section 6.02(b) hereof, (B) the Board of Directors of the Company has reasonably determined that such Acquisition Proposal, if consummated, would constitute an Overbid Transaction and (C) the Company has delivered a written notice to the Purchaser (an "Overbid Notice") advising it of the foregoing determination by the Board of Directors (which notice shall be accompanied by copies of the form of definitive agreement or other documentation proposed to be entered into in connection with the Acquisition Proposal, if any are then prepared), the Company may participate in discussions and negotiations with such Qualified Third Party regarding such Acquisition Proposal. Furthermore, if (v) the Company has delivered an Overbid Notice to the Purchaser (after compliance in full with each of the conditions precedent to the delivery of such a notice set forth in clauses (i) and (ii) of the immediately preceding sentence), (w) the Purchaser shall not have delivered to the Company within ten calendar days after receipt of such Overbid Notice a written offer (a "Topping Offer") to amend the terms of this Agreement in order to provide for consideration having a value at least $100,000 greater than the value of the consideration provided for under the Acquisition Proposal to which such Overbid Notice relates, (it being understood and agreed thatoffer, if the Purchaser does deliver directors of HBI shall have determined in good faith, based of the written opinion of outside counsel (subject to appropriate qualifications) that failure to respond would be reasonably likely to constitute a Topping Offer breach of the HBI board of directors' fiduciary duty under Pennsylvania law; or fail to the Companynotify Sterling immediately if any such inquiries or proposals are received by, the Company any such information is requested from, or any such negotiations are sought to be initiated with HBI;
(b) HBI shall immediately cease to participate not authorize or permit any officer, director, employee, agent, consultant, counsel, financial advisor or other representative to, directly or indirectly, solicit, encourage, initiate or engage in discussions or negotiations with with, or respond to requests for information, inquiries or other communications from any persons other than Sterling concerning the fact of, or the terms and conditions of, this Agreement, or concerning any acquisition of HBI, or any assets or business thereof (except that HBI officers may respond to inquiries from analysts, regulatory authorities and holders of HBI Common Stock in the Ordinary Course of Business); and HBI shall notify Sterling immediately if any such Qualified Third Party regarding such Acquisition Proposal, unless and until the conditions precedent to engaging in such discussion discussions or negotiations specified are sought to be initiated with HBI by any such person other than Sterling or if any such requests for information, inquiries, proposals or communications are received from any person other than Sterling. Provided, however, that HBI may respond to an unsolicited bona fide written offer if the directors of HBI shall have determined in this Section 6.02(agood faith, based on the written opinion of outside counsel (subject to appropriate qualifications) are satisfied by that the failure to respond would be reasonably likely to constitute a proposal thereafter submitted by such Qualified Third Party), (x) the terms breach of the Acquisition Proposal shall not have been modified in a manner adverse to the Company or the Shareholders after the date HBI board of the Overbid Notice (it being understood and agreed that the Company shall promptly advise the Purchaser in writing of the nature of any change in the terms thereof), (y) the Company shall have paid or shall have arranged for the payment of the Termination Fee to the Purchaser in accordance with Section 9.03 and the Company shall have paid or shall have arranged for the payment of the notes referred to in Sections 1.02(b) and 1.02(c) and (z) the Company shall have taken all action on its part required to cause the ▇▇▇▇▇▇▇ Money Escrow Agent to deliver the ▇▇▇▇▇▇▇ Money Deposit to the Purchaser (the conditions set forth in clauses (v), (w), (x), (y) and (z) above being hereinafter collectively referred to as the "Overbid Termination Conditions"), the Company may terminate this Agreement and enter into an agreement with a Qualified Third Party with respect to or in connection with an Overbiddirectors' fiduciary duty under applicable law.
Appears in 1 contract
Other Proposals. (a) From Notwithstanding anything to the Original contrary contained in this Agreement, during the period beginning on the date of this Agreement and continuing until 11:59 p.m. (Eastern Time) on May 31, 2014 (the “Go-Shop Period End Date”), the Company and its Subsidiaries and their respective Representatives shall have the right, directly or indirectly, under the direction of the Company Board, to (i) initiate, solicit and encourage, whether publicly or otherwise, Takeover Proposals, including by way of furnishing information (including non-public information and data) regarding, and affording access to the business, properties, assets, books, records and personnel of, the Company and its Subsidiaries to any Person pursuant to one or more Acceptable Confidentiality Agreements executed by such Person (a copy of such Acceptable Confidentiality Agreement(s) to be promptly, and in any event within 24 hours, provided to Parent, for informational purposes); provided that the Company shall simultaneously therewith make available to Parent any material non-public information concerning the Company or its Subsidiaries that is provided to any Person given such access that was not previously made available to Parent, Merger Sub or their respective Representatives, and (ii) engage in, enter into, continue, maintain or otherwise participate in any discussions or negotiations with any Person or group of Persons with respect to any Takeover Proposals and otherwise cooperate with or assist or participate in or facilitate any such inquiries, proposals, offers, efforts, attempts, discussions or negotiations.
(b) Except as may relate to any Excluded Party or as expressly permitted by this Section 5.2, from and after the Go-Shop Period End Date until the Closing DateEffective Time or, if earlier, the termination of this Agreement in accordance with Article VIII, the Company shall not, and shall use cause its best efforts to ensure that Subsidiaries and its Affiliates, directors, officers, agents or other representatives (including, but and their respective Subsidiaries’ Representatives not limited to, any investment banker, financial advisor, attorney or accountant) do not, directly or indirectly initiate any contact withindirectly: (i) whether publicly or otherwise, initiate, solicit, knowingly facilitate or encourage or enter into or continue any negotiations, understandings or agreements with any Third Party with respect to, or in connection with, or furnish or disclose any (including by way of providing non-public information regarding or access to its employees, business, properties, assets, books or records to initiate, solicit, knowingly facilitate or encourage a Takeover Proposal) the submission or announcement of any Takeover Proposal (or inquiries or requests that relate thereto or could reasonably be expected to lead thereto) or engage in any discussions or negotiations with respect thereto (or that could reasonably be expected to lead to a Takeover Proposal) or otherwise cooperate with or assist or participate in or facilitate any such requests, proposals, offers, discussions or negotiations, (ii) take any action to make the provisions of any Takeover Statute inapplicable to any transactions contemplated by a Takeover Proposal, (iii) adopt, approve or recommend, or resolve to or publicly propose to adopt, approve or recommend, a Takeover Proposal, (iv) enter into any Company Acquisition Agreement or consummate any such transaction, or enter into any agreement or understanding requiring the Company to abandon, terminate or fail to consummate this Agreement or the Transactions or breach its obligations hereunder, or (v) agree, approve, recommend or resolve to do any of the foregoing.
(c) If at any time (including after the Go-Shop Period End Date) prior to obtaining Shareholder Approval, the Company or any of its Subsidiaries has received a bona fide written Takeover Proposal from a third party that the Company Board determines in good faith (other than a written Takeover Proposal that was intentionally or their respective businesses knowingly solicited in violation of this Agreement or that directly or indirectly resulted from a material breach of this Section 5.2, after consultation with its outside financial and legal advisors, that the failure to any Third Party take such action would be inconsistent with or in connection with, any Acquisition Proposal. Notwithstanding the foregoing, to the extent required by the fiduciary obligations of the Board of Directors violation of the Company after consultation with legal counselBoard’s fiduciary duties to the Company’s shareholders under applicable Law and that such Takeover Proposal constitutes or would reasonably be expected to result in or lead to a Superior Proposal, then, the Company may (i) the Company may, in response to an unsolicited request therefor, furnish non-public information with respect to the Company or its Subsidiaries or their respective businesses to any Qualified Third Party pursuant to a customary confidentiality agreement having terms no less favorable to the Company than those in the Confidentiality Agreement and discuss Person making such information (but not any Acquisition Takeover Proposal and not any non-public information relating to the structure of the transactions contemplated hereby) with such Qualified Third Party and (ii) upon receipt by the Company of an Acquisition Proposal from a Qualified Third Party, if (A) the Company has complied fully and in a timely manner with its obligations to notify the Purchaser of the receipt of such Acquisition Proposal (and the identity of the offeror and the material terms of such proposal) in accordance with Section 6.02(b) hereof, (B) the Board of Directors of the Company has reasonably determined that such Acquisition Proposal, if consummated, would constitute an Overbid Transaction and (C) the Company has delivered a written notice to the Purchaser (an "Overbid Notice") advising it of the foregoing determination by the Board of Directors (which notice shall be accompanied by copies of the form of definitive agreement or other documentation proposed to be entered into in connection with the Acquisition Proposal, if any are then prepared), the Company may participate in discussions and negotiations with such Qualified Third Party regarding such Acquisition Proposal. Furthermore, if (v) the Company has delivered an Overbid Notice to the Purchaser (after compliance in full with each of the conditions precedent to the delivery of such a notice set forth in clauses (i) and (ii) of the immediately preceding sentence), (w) the Purchaser shall not have delivered to the Company within ten calendar days after receipt of such Overbid Notice a written offer (a "Topping Offer") to amend the terms of this Agreement in order to provide for consideration having a value at least $100,000 greater than the value of the consideration provided for under the Acquisition Proposal to which such Overbid Notice relates, (it being understood and agreed that, if the Purchaser does deliver a Topping Offer to the Company, the Company shall immediately cease to participate in discussions or negotiations (including, as a part thereof, making any counterproposals) with the Person making such Qualified Third Party Takeover Proposal regarding such Acquisition Takeover Proposal; provided, unless and until the conditions precedent to engaging in such discussion or negotiations specified in this Section 6.02(a) are satisfied by a proposal thereafter submitted by such Qualified Third Party), (x) the terms of the Acquisition Proposal shall not have been modified in a manner adverse to the Company or the Shareholders after the date of the Overbid Notice (it being understood and agreed that the Company shall promptly advise comply with the Purchaser proviso in writing of the nature of any change in the terms thereofSection 5.2(a), (y) the Company shall have paid or shall have arranged for the payment of the Termination Fee to the Purchaser in accordance with Section 9.03 and the Company shall have paid or shall have arranged for the payment of the notes referred to in Sections 1.02(b) and 1.02(c) and (z) the Company shall have taken all action on its part required to cause the ▇▇▇▇▇▇▇ Money Escrow Agent to deliver the ▇▇▇▇▇▇▇ Money Deposit to the Purchaser (the conditions set forth in clauses (v), (w), (x), (y) and (z) above being hereinafter collectively referred to as the "Overbid Termination Conditions"), the Company may terminate this Agreement and enter into an agreement with a Qualified Third Party with respect to or in connection with an Overbid
Appears in 1 contract
Other Proposals. (a) From 5.6.1 Without the Original Agreement Date until prior written Consent of Parent, during the Closing DateInterim Period, the Company shall will not, and shall use will not authorize or permit any of its best efforts to ensure that Subsidiaries or Affiliates or its Affiliatesor their respective officers, directors, officersemployees, stockholders, investment bankers, financial advisors, auditors, legal counsel, agents or and other representatives (including, but not limited “Representatives”) to, any investment banker, financial advisor, attorney or accountant) do not, directly or indirectly initiate any contact with(i) discuss, pursue, solicit, initiate or knowingly, or take any action which would be reasonably expected to, encourage or facilitate (including by way of furnishing information) or take any other action to facilitate knowingly any inquiries or the making of any proposal which constitutes or may reasonably be expected to lead to a Third Party Acquisition Proposal from any Person (provided that, if the Company receives, prior to the Company Requisite Vote being obtained, a bona fide Third Party Acquisition Proposal that did not result from a breach of this Section 5.6, the Company may contact the person who has made such Third Party Acquisition Proposal solely for purposes of requesting a clarification of any ambiguous terms and conditions thereof (and not for purposes of negotiating or engaging in any discussions regarding or relating thereto) so that the Company may inform itself about such Third Party Acquisition Proposal solely to the extent necessary to comply with the fiduciary duties of the Company Board under Applicable Law); (ii) enter into, continue, engage in or otherwise participate in any discussions or negotiations relating to or furnish to any Person any confidential information with respect to or that could reasonably be expected to lead to, any Third Party Acquisition Proposal (except to notify the third party of the existence of these provisions), or (iii) approve, recommended or publicly propose to approve or recommend, or enter into or continue any negotiations, understandings or agreements with any Third Party Contract with respect to, agree to, approve or in connection withrecommend any Third Party Acquisition Proposal
5.6.2 Notwithstanding anything to the contrary under this Section 5.6, or furnish or disclose any non-public information regarding the Company may, at any time prior to the time that the Company Requisite Vote is obtained:
(a) engage in discussions or negotiations with a Third Party (and may furnish such Third Party information concerning the Company, its Subsidiaries or their respective businesses to businesses, properties or assets) that (without any Third Party in connection withsolicitation, any Acquisition Proposal. Notwithstanding the foregoinginitiation, to the extent required encouragement, discussion or negotiation, directly or indirectly, by the fiduciary obligations of the Board of Directors of the Company after consultation or with legal counsel, (i) the Company may, in response to an unsolicited request therefor, furnish non-public information with respect to the Company or its Subsidiaries or their respective businesses to the Representatives after the date hereof and without any Qualified Third Party pursuant to a customary confidentiality agreement having terms no less favorable to the Company than those in the Confidentiality Agreement and discuss such information (but not any Acquisition Proposal and not any non-public information relating to the structure of the transactions contemplated hereby) with such Qualified Third Party and (ii) upon receipt other breach by the Company of its obligations under this Section 5.6) makes an unsolicited bona fide written Third Party Acquisition Proposal from that the Company Board concludes constitutes (or is reasonably likely to result in) a Qualified Superior Proposal; provided that (1) the Company Board shall conclude in good faith, after (x) consultation with, and taking into account the advice of, its outside legal counsel and financial advisor, that such Third Party Acquisition Proposal constitutes (or is reasonably likely to result in) a Superior Proposal, (y) considering Applicable Law, and (z) consultation with, and taking into account the advice of, its outside legal counsel, that such action is necessary for the Company Board to act in a manner consistent with its fiduciary duties under Applicable Law (provided, however, that in order to determine the appropriate standards that would apply to such fiduciary duties, the Company Board (or a committee thereof) may also consider and act on the basis of the fiduciary duties owed by a board of directors to the shareholders of a company under Delaware Applicable Law), (2) prior to furnishing such information to or entering into discussions or negotiations with such Third Party, if the Company receives from such Third Party an executed confidentiality agreement in substantially the form of the Confidentiality Agreement, provided that any information provided to such Third Party has also previously been provided to Parent or is provided to Parent prior to or substantially concurrently with the time it is provided to such Third Party, and (A3) the Company has shall have fully complied fully with this Section 5.6 in all respects;
(b) make a Company Adverse Recommendation Change; or
(c) accept a Superior Proposal (which Superior Proposal did not result from a breach of this Section 5.6) if the Company Board concludes, after consultation with, and in a timely manner taking into account the advice of outside counsel, that the failure to take such action would be inconsistent with its obligations fiduciary duties under Applicable Law (provided, however, that in order to notify determine the Purchaser appropriate standards that would apply to such fiduciary duties, the Company Board (or a committee thereof) may also consider and act on the basis of the fiduciary duties owed by a board of directors to the shareholders of a company under Delaware Applicable Law), and which the Company Board has determined in good faith, after consultation with, and taking into account the advice of, its financial advisor and its outside counsel, constitutes a Superior Proposal; provided, however, that the Company shall not execute a definitive agreement with respect to a Superior Proposal unless immediately thereafter the Company shall have terminated this Agreement pursuant to Section 7.1.8 hereof and has paid the amounts required under Section 7.2.2 hereof; and provided further that the Company may not terminate this Agreement as set forth above or make a Company Adverse Recommendation Change until after the fourth (4th) Business Day following receipt by Parent of written notice (a “Notice of Superior Proposal”) from the Company advising Parent that the Company Board intends to take such Acquisition actions and specifying the reasons therefor, including the material terms and conditions of (and documents relating to) such Superior Proposal (and the identity of the offeror and Third Party making such Superior Proposal) that is the material terms of such proposal) in accordance with Section 6.02(b) hereof, (B) the Board of Directors basis of the Company has reasonably determined that such Acquisition Proposal, if consummated, would constitute an Overbid Transaction and (C) proposed action by the Company has delivered Board and a written notice statement that the Company Board intends to the Purchaser (an "Overbid Notice") advising it of the foregoing determination terminate this Agreement pursuant to Section 7.1.8 or make such Company Adverse Recommendation Change, as applicable. If requested by the Board of Directors (which notice shall be accompanied by copies of the form of definitive agreement or other documentation proposed to be entered into in connection with the Acquisition Proposal, if any are then prepared)Parent, the Company may participate and its Representatives shall engage in discussions and good faith negotiations with such Qualified Third Party regarding such Acquisition Proposal. FurthermoreParent and its Representatives, if (v) for a period of 4 Business Days, to, among other things, amend this Agreement and the Company has delivered an Overbid Notice to the Purchaser (after compliance other Transaction Agreements in full with each of the conditions precedent to the delivery of such a notice set forth in clauses manner that (i) the Third Party Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal, and (ii) the failure of the immediately preceding sentence), (w) the Purchaser shall not have delivered Company to the accept such a Superior Proposal or make such Company within ten calendar days after receipt of such Overbid Notice a written offer (a "Topping Offer") to amend the terms of this Agreement in order to provide for consideration having a value at least $100,000 greater than the value of the consideration provided for Adverse Recommendation Change would no longer be inconsistent with its fiduciary duties under the Acquisition Proposal to which such Overbid Notice relates, (it being understood and agreed that, if the Purchaser does deliver a Topping Offer to the Company, the Company shall immediately cease to participate in discussions or negotiations with such Qualified Third Party regarding such Acquisition Proposal, unless and until the conditions precedent to engaging in such discussion or negotiations specified in this Section 6.02(a) are satisfied by a proposal thereafter submitted by such Qualified Third Party), (x) the terms of the Acquisition Proposal shall not have been modified in a manner adverse to the Company or the Shareholders after the date of the Overbid Notice Applicable Laws (it being understood and agreed that (x) any amendment to the financial terms or any other material amendment of such Superior Proposal shall require a new Notice of Superior Proposal and a new 3 Business Day period, and (y) in determining whether to cause or permit the Company to so terminate this Agreement or make such Company Adverse Recommendation Change, the Company Board shall take into account any changes to the financial or other terms of this Agreement and the other Transaction Agreements proposed in writing by Parent to the Company in response to a Notice of Superior Proposal or otherwise, and the Company Board at the end of the negotiation period, after consultation with, and taking into account the advice of, outside legal counsel and its financial advisor, shall have in good faith reaffirmed its determination that such bona fide Third Party Acquisition Proposal constitutes a Superior Proposal).
5.6.3 The Company shall and shall cause its Subsidiaries and direct its Representatives to immediately cease and terminate any existing solicitation, initiation, encouragement, activity, discussion or negotiation with any Third Party conducted heretofore by the Company or its Representatives with respect to the foregoing, shall terminate data room access of all such Third Parties and shall request the prompt return or destruction of all confidential information previously furnished in connection therewith. The Company shall (i) notify Parent in writing of any Third Party Acquisition Proposal received after the date hereof (including, the material terms and conditions of any such Third Party Acquisition Proposal and the identity of the Person making it), within forty-eight (48) hours of the receipt thereof, and (ii) keep Parent informed of the status and details of any such Third Party Acquisition Proposal and any material developments with respect to such Third Party Acquisition Proposal or request for information or other inquiry (including any material changes thereto).
5.6.4 Without derogating from the mechanism described above with respect to a Superior Proposal, during the Interim Period, the Company shall promptly advise not terminate, amend, modify or waive any provision of any confidentiality or standstill Contracts to which it or any of its Subsidiaries is a party (i) with any Third Party that has made or has indicated that it is considering making a Third Party Acquisition Proposal, or (ii) outside the Purchaser ordinary course of business, without the prior written Consent of Parent. Without derogating from the mechanism described above with respect to a Superior Proposal, during the Interim Period, the Company shall enforce, as permitted under Applicable Law, the provisions of any such Contracts, including, obtaining injunctions to prevent any breaches of such Contracts, and enforcing specifically the terms and provisions thereof in writing any court of competent jurisdiction.
5.6.5 Except as permitted by this Section 5.6 and under Applicable Law, the Company Board shall not (a) withdraw, qualify or modify, or publicly propose to withdraw, qualify or modify, the Company Recommendation, (b) fail to include the Company Recommendation in the Proxy Statement, (c) publicly recommend or declare advisable any Third Party Acquisition Proposal, (d) adopt, authorize or approve any letter of intent, memorandum of understanding, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement providing for any Third Party Acquisition Proposal, other than as permitted by Section 5.6.1, or (e) fail to publicly reaffirm the Company Recommendation within ten days after Parent’s request (any action described in the foregoing clauses (a) through (d) of this Section 5.6.4 being referred to as a “Company Adverse Recommendation Change”).
5.6.6 Notwithstanding anything in this Section 5.6 to the contrary, other than in connection with a bona fide Third Party Acquisition Proposal that constitutes a Superior Proposal in accordance with Section 5.6.2, at any time prior to the time that the Company Requisite Vote is obtained, the Company Board may make a Company Adverse Recommendation Change in response to a Company Intervening Event if the Company Board has determined in good faith after consultation with the Company’s outside legal counsel and financial advisors that the failure to take such action would be inconsistent with the directors’ fiduciary duties under Applicable Israeli Law (provided, however, that in order to determine the appropriate standards that would apply to such fiduciary duties, the Company Board may also consider and act on the basis of the nature fiduciary duties owed by a board of directors to the shareholders of a company under Delaware Law); provided further that prior to making such Company Adverse Recommendation Change, (A) the Company Board shall have given Parent at least three (3) Business Days’ prior written notice of its intention to take such action and a description of the reasons for the Company Adverse Recommendation Change (it being understood that any material change in the terms thereof)respect of such Company Intervening Event shall require a new notice but with an additional two (2) Business Day (instead of three (3) Business Day) notice period, (yB) the Company shall have paid or negotiated, and shall have arranged for caused its Subsidiaries and shall have used its reasonable best efforts to cause its Representatives to negotiate in good faith with Parent during such notice period after the payment giving of the Termination Fee such notice to the Purchaser in accordance with Section 9.03 extent Parent wishes to negotiate, to make such adjustments to the terms and conditions of this Agreement so that the need for making such Company shall have paid or shall have arranged for the payment of the notes referred to in Sections 1.02(b) and 1.02(c) Adverse Recommendation Change would be obviated, and (zC) at the Company shall have taken all action on its part required to cause the ▇▇▇▇▇▇▇ Money Escrow Agent to deliver the ▇▇▇▇▇▇▇ Money Deposit to the Purchaser (the conditions set forth in clauses (v), (w), (x), (y) and (z) above being hereinafter collectively referred to as the "Overbid Termination Conditions")end of such notice period, the Company may terminate this Agreement Board shall have considered in good faith such adjustments and enter into an agreement shall have determined in good faith, after consultation with its outside legal counsel and financial advisor, that it is required to make such Company Adverse Recommendation Change in order to comply with its fiduciary duties to the shareholders of the Company as a Qualified Third Party with respect to or in connection with an Overbidresult of such Company Intervening Event.
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