Other Proposals. (a) From and after the date of this Agreement until the termination of this Agreement, neither Company, any of its Subsidiaries, nor any of their respective officers, directors, employees, representatives, agents or affiliates (including, without limitation, any investment banker, attorney or accountant retained by Company or any of its Subsidiaries) (collectively, "Responsible Parties") will directly or indirectly initiate, solicit or knowingly encourage (including by way of furnishing non-public information or assistance), or take any other action to facilitate knowingly, any inquiries or the 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 or the Special Committee from, prior to the Company Stockholders' Meeting, but subject to compliance with Section 6.3(b): (i) furnishing information to or entering into discussions or negotiations with any Person that makes a bona fide Transaction Proposal which was not directly or indirectly solicited in violation of this Section 6.3 only to the extent that: (1) the Company Board or Special Committee, after consultation with its financial advisors and after receipt of advice from independent outside legal counsel, determines in good faith that such action is necessary for the Board to comply with its fiduciary duties to shareholders under applicable law and (2) prior to taking such action Company provides prompt notice to Purchaser to the effect that it is furnishing such information to or entering into discussions or negotiations with such Person and receives from such Person an executed confidentiality agreement; (ii) failing to make or withdrawing or modifying its recommendation referred to in Section 1.10 if there exists a Transaction Proposal and the Company Board or Special Committee, after consultation with its financial advisors and after receipt of advice from independent outside legal counsel, determines in good faith that such action is necessary for the Company Board to comply with its fiduciary duties to shareholders under applicable law in connection with such Transaction Proposal; or (iii) making to Company's shareholders 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 taking any other legally required action with respect to such Transaction Proposal (including, without limitation, the making of public disclosures as may be necessary or reasonably advisable under applicable securities laws) if the Company Board or the Special Committee, after consultation with their financial advisors and receipt of advice from independent outside legal counsel, determines in good faith that such action is necessary for the Company Board to comply with its fiduciary duties to shareholders under applicable law. Consistent with the foregoing provisions of this Section 6.3, Company shall immediately cease and terminate any currently existing solicitation, initiation, encouragement, activity, discussion or negotiation with any Person conducted heretofore by Company or any Responsible Parties with respect to the foregoing. Company agrees not to release any third party from, or waive any provisions of, any standstill agreement to which it is a party or any confidentiality agreement between it and another Person who has made, or who may reasonably be considered likely to make, a Transaction Proposal. In the event of an exercise of Company's or the Board of Director's rights under clauses (i), (ii) or (iii) above and subject to compliance with this Section 6.3, notwithstanding anything contained in this Agreement to the contrary, such exercise of rights shall not constitute a breach of this Agreement by Company. For purposes of this Agreement "Transaction Proposal" shall mean any of the following (other than the transactions between the Company, Purchaser and Parent contemplated by this Agreement) involving the Company or any of its Subsidiaries: (i) any merger, consolidation, share exchange, recapitalization, business combination or other similar transaction; (ii) except in the ordinary course of business, any sale, lease, exchange, mortgage, pledge, transfer or other disposition of 20% or more of the assets of the Company and its Subsidiaries, taken as a whole, in a single transaction or series of related transactions; (iii) any tender offer or exchange offer for, or the acquisition of (or right to acquire) "beneficial ownership" by any person, "group" or entity (as such terms are defined under Section 13 (d) of the Exchange Act), of 20% or more of the outstanding shares of capital stock of Company or the filing of a registration statement under the Securities Act in connection therewith; or (iv) any public announcement of a proposal, plan or intention to do any of the foregoing or any agreement to engage in any of the foregoing or recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries. (b) Prior to the Company Board or Special Committee withdrawing or modifying its approval or recommendation of this Agreement or the Merger, or approving or recommending a Transaction Proposal, or entering into an agreement with respect to a Transaction Proposal, the Company shall provide Purchaser with a written notice (a "Notice of Transaction Proposal") advising Purchaser of the Transaction Proposal, specifying the material terms and conditions of such Transaction Proposal and identifying the person making such Transaction Proposal, and neither the Company nor any Subsidiary shall enter into an agreement with respect to a Transaction Proposal until 72 hours after the first Notice of Transaction Proposal with respect to a given third party was given to Purchaser.
Appears in 2 contracts
Sources: Merger Agreement (Murdock David H), Merger Agreement (Dole Food Company Inc)
Other Proposals. (a) From Notwithstanding anything to the contrary contained in this Agreement, during the period beginning on the date of this Agreement and continuing until 12:01 a.m. (Eastern Time) on the 45th calendar day after the date of this Agreement until (the termination of this Agreement“No-Shop Period Start Date”), neither Company, any of the Company and its Subsidiaries, nor any of Subsidiaries and their respective officers, directors, employees, investment bankers, accountants, attorneys, representatives, agents and Affiliates (collectively, “Representatives”) shall have the right, directly or affiliates indirectly, under the direction of the Special Committee (includingwhich has been authorized to act on behalf of the Company Board and the Company with respect to any action permitted or contemplated by this Section 6.4), without limitationto (i) initiate, solicit and encourage, whether publicly or otherwise, Transaction Proposals (or any investment bankerinquiry or the making of any proposal or offer or other efforts or attempts that may reasonably be expected to lead to a Transaction Proposal), attorney 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 accountant retained more Acceptable Confidentiality Agreements executed by such Person; provided that the Company shall promptly make available to Purchaser any material non-public information concerning the Company or its Subsidiaries that is provided to any Person given such access that was not previously provided to Purchaser after the date hereof (provided that all documents to which Purchaser or its Representatives have been provided with through access to the documents posted to the data room at ▇▇▇▇▇://▇▇▇▇▇▇▇▇.▇▇▇/ shall be deemed to have been provided to Purchaser after the date hereof), 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. No later than the third Business Day after the No-Shop Period Start Date, the Company shall provide Purchaser with a list of Excluded Parties, including the identity of each Excluded Party and a copy of the Transaction Proposal submitted by such Excluded Party (to the extent any such Transaction Proposal contains confidential or competitively sensitive information about the Excluded Party that has no effect on the value of the consideration offered under such Transaction Proposal or the timing or likelihood of consummation of the Transaction Proposal, such information may be redacted if necessary to comply with the terms of any Acceptable Confidentiality Agreement) on the basis of which the Company Board (acting through the Special Committee) made the determination that such Person shall be an Excluded Party.
(b) Except as may relate to any Excluded Party (but only for so long as such Person, group or group of Persons remains an 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) (collectively, "Responsible Parties") will or any of their respective Representatives, will, directly or indirectly indirectly, initiate, solicit or knowingly encourage (including by way of furnishing non-public information or assistance), or take any other action to facilitate knowingly, any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to 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") 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 Representative to take any such action; provided, however, that nothing contained in this Agreement shall prohibit the Company Board or (acting through the Special Committee Committee) from, prior to the receipt of the Company Stockholders' MeetingStockholder Approval, but subject to compliance with Section 6.3(b): (i) furnishing information to or entering into discussions or negotiations with any Person that makes has made (and not withdrawn) a bona fide written Transaction Proposal which was did not directly or indirectly solicited in result from any violation of this Section 6.3 only to the extent that: (1) 6.4 and which the Company Board or (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 Superior Proposal if (A) the Company Board (acting through the Special Committee), after receipt of advice from independent consultation with its outside legal counsel, determines in good faith that the failure to take such action is necessary for the Board would be reasonably likely to comply be inconsistent with its fiduciary duties to shareholders stockholders under applicable law and law, (2B) prior to taking such action the Company provides prompt notice to Purchaser to the effect that it is furnishing such information to or entering into discussions or negotiations with such Person and receives from such Person an executed confidentiality agreement; Acceptable Confidentiality Agreement, and (iiC) failing to make or withdrawing or modifying its recommendation referred to in Section 1.10 if there exists a Transaction Proposal and the Company Board or Special Committee, after consultation with its financial advisors and after receipt of advice from independent outside legal counsel, determines in good faith that such action is necessary for promptly makes available to Purchaser any material non-public information concerning the Company Board to comply with or its fiduciary duties to shareholders under applicable law in connection with such Transaction Proposal; or (iii) making to Company's shareholders any recommendation and related filing with the SEC as required by Rule 14e-2 and 14d-9 under the Exchange Act, with respect Subsidiaries that is provided to any Transaction Proposal, such Person that was not previously provided to Parent after the date hereof (provided that all documents to which Purchaser or taking any other legally required action its Representatives have been provided with respect through access to such Transaction Proposal (including, without limitation, the making of public disclosures documents posted to the data room at ▇▇▇▇▇://▇▇▇▇▇▇▇▇.▇▇▇/ shall be deemed to have been provided to Purchaser after the date hereof). Except as may be necessary relate to any Excluded Party (but only for so long as such Person, group or reasonably advisable under applicable securities lawsgroup of Persons remains an Excluded Party) if the Company Board or the Special Committee, after consultation with their financial advisors and receipt of advice from independent outside legal counsel, determines in good faith that such action is necessary for the Company Board to comply with its fiduciary duties to shareholders under applicable law. Consistent with as otherwise permitted by the foregoing provisions of this Section 6.36.4, after the No-Shop Period Start Date, the Company shall, and shall immediately cause its Subsidiaries and all Representatives to, promptly cease and terminate any currently then-existing solicitation, initiation, encouragement, activity, discussion or negotiation with any Person conducted heretofore prior to the No-Shop Period Start Date by the Company, any of its Subsidiaries, the Company Board, the Special Committee or any Responsible Parties Representatives with respect to the foregoing. foregoing (including the termination of access to any physical or electronic data rooms containing information regarding the Company agrees not and/or its Subsidiaries) and shall use its reasonable best efforts to release cause any third party from, or waive any provisions of, any standstill agreement to which it is a party such Person (and its Representatives) in possession of non-public information in respect of the Company or any confidentiality agreement between it of its Subsidiaries that was furnished by or on behalf of the Company and/or its Subsidiaries to return or destroy (and another Person who has made, or who may reasonably be considered likely to make, a Transaction Proposalconfirm destruction of) all such information. In the event of an exercise of the Company's ’s or the Board of Director's Company Board’s rights under clauses (i), (ii) or (iii) above and subject to compliance with this Section 6.36.4, notwithstanding anything contained in this Agreement to the contrary, such exercise of rights shall not constitute a breach of this Agreement by the Company. For purposes the avoidance of this Agreement "Transaction Proposal" shall mean any doubt, notwithstanding the commencement of the following (other than the transactions between the CompanyNo-Shop Period Start Date, Purchaser and Parent contemplated by this Agreement) involving the Company may continue to engage in the activities described in Section 6.4(a) (subject to the limitations and obligations set forth therein) with respect to, and the restrictions in this Section 6.4(b) shall not apply to, any Excluded Party, including with respect to any amended or modified Transaction Proposal submitted by any of its Subsidiaries: Excluded Party following the No-Shop Period Start Date.
(c) Except as set forth in this Section 6.4, neither the Company Board nor any committee thereof (including the Special Committee) shall:
(i) any mergerwithhold, consolidationwithdraw, share exchangequalify, recapitalizationamend or modify (or publicly propose or resolve to withhold, business combination withdraw, qualify, amend or other similar transaction; modify), in a manner adverse to Purchaser and/or Merger Sub, the Company Board Recommendation with respect to the Merger or fail to include the Company Board Recommendation in the Proxy Statement, or adopt, approve or recommend (publicly or otherwise) or propose or resolve to adopt, approve or recommend (publicly or otherwise) an Transaction Proposal;
(ii) except (A) take formal action or make any recommendation or public statement in the ordinary course of business, any sale, lease, exchange, mortgage, pledge, transfer or other disposition of 20% or more of the assets of the Company and its Subsidiaries, taken as connection with a whole, in a single transaction or series of related transactions; (iii) any tender offer or exchange offer forrelating to securities of the Company other than a recommendation against such offer or a “stop, or look and listen” communication by the acquisition of (or right Company Board pursuant to acquire) "beneficial ownership" by any person, "group" or entity (as such terms are defined under Section 13 (dRule 14d-9(f) of the Exchange Act, (B) within ten Business Days of a tender or exchange offer relating to securities of the Company having been commenced, fail to publicly recommend against such tender or exchange offer or fail to publicly reaffirm the Company Board Recommendation or (C) following the announcement by a third party of a bona fide Transaction Proposal by such third party fail to reaffirm publicly the Company Board Recommendation within five Business Days after Purchaser requests in writing that the Company Board Recommendation be reaffirmed publicly (provided, that Purchaser shall only be permitted to make one such request under clause (C) in connection with any single Transaction Proposal by a third party) (any of the actions described in the foregoing clause (i) or this clause (ii) being referred to as a “Company Adverse Recommendation Change”);
(iii) authorize, cause or permit the Company to enter into any acquisition agreement, merger agreement or similar definitive agreement or a letter of intent or agreement in principle with respect thereto (other than an Acceptable Confidentiality Agreement) (a “Definitive Transaction Agreement”) relating to any Transaction Proposal; or
(iv) take any action pursuant to Section 8.1(c) (i).
(d) Notwithstanding anything to the contrary set forth in this Agreement, prior to (but not after) the receipt of the Company Stockholder Approval, the Company Board (acting through the Special Committee) may (x) effect a Company Adverse Recommendation Change involving the actions described in Section 6.4(c)(i) in response to an Intervening Event if the Company Board (acting through the Special Committee) determines in good faith, after consultation with its outside legal counsel, that failure to do so would be reasonably likely to be inconsistent with the Company Board’s fiduciary duties to stockholders under applicable law (such Company Adverse Recommendation Change, an “Intervening Event Change of Recommendation”) or (y) effect a Company Adverse Recommendation Change in response to a Superior Proposal (provided that such Superior Proposal did not result from any breach of this Section 6.4) or terminate this Agreement pursuant to Section 8.1(c)(i) to enter into a Definitive Transaction Agreement providing for a Superior Proposal as contemplated herein, if the Company Board (acting through the Special Committee) determines in good faith, after consultation with its outside legal counsel, that failure to do so would be reasonably likely to be inconsistent with the Company Board’s fiduciary duties to stockholders under applicable law; provided that prior to taking any of the actions permitted under this Section 6.4(d):
(i) the Company shall have provided prior written notice to Purchaser, at least five Business Days in advance (the “Notice Period”), of 20% its intention to effect (x) an Intervening Event Change of Recommendation or more (y) a Company Adverse Recommendation Change in response to a Superior Proposal or to terminate this Agreement pursuant to Section 8.1(c)(i), which notice, if concerning an intended Intervening Event Change of Recommendation shall include a description of the outstanding shares Intervening Event in reasonable detail or, if concerning an intended Company Adverse Recommendation Change in response to a Superior Proposal or concerning an intended termination pursuant to Section 8.1(c)(i) of capital stock of Company or this Agreement, shall specify the filing of a registration statement under the Securities Act in connection therewith; or (iv) any public announcement of a proposal, plan or intention to do any identity of the foregoing or any agreement to engage in any of the foregoing or recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries.
(b) Prior to the Company Board or Special Committee withdrawing or modifying its approval or recommendation of this Agreement or the Merger, or approving or recommending a Transaction Proposal, or entering into an agreement with respect to a Transaction Proposal, the Company shall provide Purchaser with a written notice (a "Notice of Transaction Proposal") advising Purchaser of the Transaction Proposal, specifying party making such Superior Proposal and the material terms and conditions thereof (or of any material modification thereto) and include a copy of the Superior Proposal and a copy of the then-current proposed draft Definitive Transaction Agreements (to the extent any such Superior Proposal contains confidential or competitively sensitive information about the party (or parties) making the Superior Proposal that has no effect on the value of the consideration offered under such Superior Proposal or the timing or likelihood of consummation of such Superior Proposal, such information may be redacted if necessary to comply with the terms of any Acceptable Confidentiality Agreement);
(ii) during such Notice Period, if requested by Purchaser, the Company shall engage in good faith negotiations with Purchaser to amend this Agreement in such a manner that would cause the Transaction Proposal and identifying previously constituting a Superior Proposal to no longer constitute a Superior Proposal or, in the person making such Transaction Proposalcase of an Intervening Event, and neither so that there is no longer a basis for the Intervening Event Change or Recommendation or Company nor any Subsidiary Adverse Recommendation Change or termination of this Agreement pursuant to Section 8.1(c)(i); and
(iii) upon the expiration of the Notice Period, the Special Committee shall enter into an agreement have determined in good faith, after consulting with its outside financial advisor that: (A) with respect to an intended Intervening Event Change of Recommendation, the failure to effect a Transaction Proposal until 72 hours after Intervening Event Change of Recommendation would be reasonably likely to be inconsistent with the first Notice of Transaction Proposal Company Board’s fiduciary duties to stockholders under applicable law, and (B) with respect an intended termination pursuant to Section 8.1(c)(i) or an intended Company Adverse Recommendation Change in response to a given third party was given Superior Proposal, the Superior Proposal continues to Purchaser.constitute a Superior Proposal and that failure to take such action would be reasonably likely to be inconsistent with the Company Board’s fiduciary duties to stockholders under applicable law;
Appears in 1 contract
Other Proposals. (a) From and after the date of this Agreement until the termination of this Agreement, neither CompanyDevelopment, the Partnership, any of its Subsidiaries, nor any of their respective officers, directors, employees, representatives, agents or affiliates (including, without limitation, any investment banker, attorney or accountant retained by Company Development, the Partnership or any of its SubsidiariesSubsidiaries or affiliates) (collectively, "Responsible PartiesRESPONSIBLE PARTIES") will directly or indirectly initiate, solicit or knowingly encourage (including by way of furnishing non-public information or assistance), or take any other action to facilitate knowingly, any inquiries or the 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 ("PersonPERSON") 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 Development Board or the Special Committee from, prior to the Company Stockholders' MeetingCentex Stockholder Approval, but subject to compliance with the remaining provisions of this Section 6.3(b): 6.3: (i) furnishing information (other than any non-public information relating to the terms or structure of the transactions contemplated by this Agreement) to or entering into discussions or negotiations with any Person that makes a bona fide Transaction Proposal which was not directly or indirectly solicited in violation of this Section 6.3 only to the extent that: (1) the Company Development Board or Special Committee, after consultation with its financial advisors and after receipt of advice from independent outside legal counsel, determines in good faith that such action is necessary for the Board to comply with its fiduciary duties to shareholders the Partnership's limited partners and, to the extent of any duties, to the Partnership's warrant holders, in each case under applicable law and (2) prior to taking such action Company the Partnership provides prompt notice to Purchaser Acquirer to the effect that it is furnishing such information to or entering into discussions or negotiations with such Person and receives from such Person an executed confidentiality agreement; (ii) failing to make or withdrawing or modifying its recommendation referred to in Section 1.10 1.11 if there exists a Transaction Proposal and the Company Development Board or Special Committee, after consultation with its financial advisors and after receipt of advice from independent outside legal counsel, determines in good faith that such action is necessary for the Company Development Board to comply with its fiduciary duties to shareholders the Partnership's limited partners and, to the extent of any duties, to the Partnership's warrant holders, in each case under applicable law in connection with such Transaction Proposal; or (iii) making to Companythe Partnership's shareholders partners 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 taking any other legally required action with respect to such Transaction Proposal (including, without limitation, the making of public disclosures as may be necessary or reasonably advisable under applicable securities laws) if the Company Development Board or the Special Committee, after consultation with their financial advisors and receipt of advice from independent outside legal counsel, determines in good faith that such action is necessary for the Company Development Board to comply with its fiduciary duties to shareholders Partnership's limited partners and, to the extent of any duties, to the Partnership's warrant holders, in each case under applicable law. Consistent with the foregoing provisions of this Section 6.3, Company the Partnership shall immediately cease and terminate any currently existing solicitation, initiation, encouragement, activity, discussion or negotiation with any Person conducted heretofore by Company the Partnership or any Responsible Parties with respect to the foregoing. Company The Partnership agrees not to release any third party from, or waive any provisions of, any standstill agreement to which it is a party or any confidentiality agreement between it and another Person who has made, or who may reasonably be considered likely to make, a Transaction Proposal. In the event of an exercise of Companythe Partnership's or the Board of DirectorDevelopment Board's rights under clauses (i), (ii) or (iii) above and subject to compliance with this Section 6.3, notwithstanding anything contained in this Agreement to the contrary, such exercise of rights shall not constitute a breach of this Agreement by Company. For purposes of this Agreement "Transaction Proposal" shall mean any of the following (other than the transactions between the Company, Purchaser and Parent contemplated by this Agreement) involving the Company or any of its Subsidiaries: (i) any merger, consolidation, share exchange, recapitalization, business combination or other similar transaction; (ii) except in the ordinary course of business, any sale, lease, exchange, mortgage, pledge, transfer or other disposition of 20% or more of the assets of the Company and its Subsidiaries, taken as a whole, in a single transaction or series of related transactions; (iii) any tender offer or exchange offer for, or the acquisition of (or right to acquire) "beneficial ownership" by any person, "group" or entity (as such terms are defined under Section 13 (d) of the Exchange Act), of 20% or more of the outstanding shares of capital stock of Company or the filing of a registration statement under the Securities Act in connection therewith; or (iv) any public announcement of a proposal, plan or intention to do any of the foregoing or any agreement to engage in any of the foregoing or recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its SubsidiariesPartnership.
(b) Prior to the Company Board or Special Committee withdrawing or modifying its approval or recommendation of this Agreement or the Merger, or approving or recommending a Transaction Proposal, or entering into an agreement with respect to a Transaction Proposal, the Company shall provide Purchaser with a written notice (a "Notice of Transaction Proposal") advising Purchaser of the Transaction Proposal, specifying the material terms and conditions of such Transaction Proposal and identifying the person making such Transaction Proposal, and neither the Company nor any Subsidiary shall enter into an agreement with respect to a Transaction Proposal until 72 hours after the first Notice of Transaction Proposal with respect to a given third party was given to Purchaser.
Appears in 1 contract
Other Proposals. (a) From and after the date of this Agreement until the termination of this Agreement, neither the Company, any of its Subsidiaries, nor any of their respective officers, directors, employees, representatives, agents or affiliates (including, without limitation, any investment banker, attorney or accountant retained by the Company or any of its SubsidiariesSubsidiaries or affiliates) (collectively, "Responsible PartiesRESPONSIBLE PARTIES") will directly or indirectly initiate, solicit or knowingly encourage (including by way of furnishing non-public information or assistance), or take any other action to facilitate knowingly, any inquiries or the 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 ("PersonPERSON") 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 or the Special Committee from, prior to the Company Stockholders' Meeting, but subject to compliance with the remaining provisions of this Section 6.3(b): 6.3: (i) furnishing information (other than any non-public information relating to the terms or structure of the transactions contemplated hereby) to or entering into discussions or negotiations with any Person that makes a bona fide Transaction Proposal which was not directly or indirectly solicited in violation of this Section 6.3 only to the extent that: (1) the Company Board or Special Committee, after consultation with its financial advisors and after receipt of advice from independent outside legal counsel, determines in good faith that such action is necessary for the Board to comply with its fiduciary duties to shareholders stockholders under applicable law and (2) prior to taking such action the Company provides prompt notice to Purchaser Acquirer to the effect that it is furnishing such information to or entering into discussions or negotiations with such Person and receives from such Person an executed confidentiality agreement; (ii) failing to make or withdrawing or modifying its recommendation referred to in Section 1.10 1.11 if there exists a Transaction Proposal and the Company Board or Special Committee, after consultation with its financial advisors and after receipt of advice from independent outside legal counsel, determines in good faith that such action is necessary for the Company Board to comply with its fiduciary duties to shareholders stockholders under applicable law in connection with such Transaction Proposal; or (iii) making to the Company's shareholders 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 taking any other legally required action with respect to such Transaction Proposal (including, without limitation, the making of public disclosures as may be necessary or reasonably advisable under applicable securities laws) if the Company Board or the Special Committee, after consultation with their financial advisors and receipt of advice from independent outside legal counsel, determines in good faith that such action is necessary for the Company Board to comply with its fiduciary duties to shareholders stockholders under applicable law. Consistent with the foregoing provisions of this Section 6.3, the Company shall immediately cease and terminate any currently existing solicitation, initiation, encouragement, activity, discussion or negotiation with any Person conducted heretofore by the Company or any Responsible Parties with respect to the foregoing. The Company agrees not to release any third party from, or waive any provisions of, any standstill agreement to which it is a party or any confidentiality agreement between it and another Person who has made, or who may reasonably be considered likely to make, a Transaction Proposal. In the event of an exercise of the Company's or the Board of Director's rights under clauses (i), (ii) or (iii) above and subject to compliance with this Section 6.3, notwithstanding anything contained in this Agreement to the contrary, such exercise of rights shall not constitute a breach of this Agreement by Company. For purposes of this Agreement "Transaction Proposal" shall mean any of the following (other than the transactions between the Company, Purchaser and Parent contemplated by this Agreement) involving the Company or any of its Subsidiaries: (i) any merger, consolidation, share exchange, recapitalization, business combination or other similar transaction; (ii) except in the ordinary course of business, any sale, lease, exchange, mortgage, pledge, transfer or other disposition of 20% or more of the assets of the Company and its Subsidiaries, taken as a whole, in a single transaction or series of related transactions; (iii) any tender offer or exchange offer for, or the acquisition of (or right to acquire) "beneficial ownership" by any person, "group" or entity (as such terms are defined under Section 13 (d) of the Exchange Act), of 20% or more of the outstanding shares of capital stock of Company or the filing of a registration statement under the Securities Act in connection therewith; or (iv) any public announcement of a proposal, plan or intention to do any of the foregoing or any agreement to engage in any of the foregoing or recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries.
(b) Prior to the Company Board or Special Committee withdrawing or modifying its approval or recommendation of this Agreement or the Merger, or approving or recommending a Transaction Proposal, or entering into an agreement with respect to a Transaction Proposal, the Company shall provide Purchaser with a written notice (a "Notice of Transaction Proposal") advising Purchaser of the Transaction Proposal, specifying the material terms and conditions of such Transaction Proposal and identifying the person making such Transaction Proposal, and neither the Company nor any Subsidiary shall enter into an agreement with respect to a Transaction Proposal until 72 hours after the first Notice of Transaction Proposal with respect to a given third party was given to Purchaser.
Appears in 1 contract