Parent Acquisition Proposals. Section 5.8.1 Subject to Section 5.8.2 and 5.8.4, the Parent agrees that it shall not, nor shall it permit or authorize any Parent Subsidiaries or any of its or their directors or officers to, and shall use its reasonable best efforts to cause any other Parent Representative not to, directly or indirectly, take any action to (A) solicit, initiate or encourage any Parent Acquisition Proposal, (B) participate in any way in discussions or negotiations with, or furnish any non-public information to, any person with respect to a Parent Acquisition Proposal other than the Merger, (C) withdraw or modify the Parent Recommendation in a manner adverse to the Company, (D) other than the Merger, approve, recommend or take any public position (including any position communicated to shareholders of Parent or any other person, but not including communications made in internal discussions among Parent’s management and its advisors) other than “against” any Parent Acquisition Proposal, or (E) enter into any agreement or letter of intent with respect to any Parent Acquisition Proposal. Subject to Section 5.8.2(ii), on the date of this Agreement, Parent shall immediately cease and cause to be terminated any negotiations with any person (other than the Company) conducted theretofore by Parent, the Parent Subsidiaries or any Parent Representative with respect to any Parent Acquisition Proposal, and shall promptly request the other parties thereto to promptly return or destroy subject to the terms of such agreement any confidential information previously furnished by Parent, the Parent Subsidiaries or the Parent Representatives thereunder. Section 5.8.2 Notwithstanding anything to the contrary contained in Section 5.8.1, Parent or the Parent Board, as applicable, shall be permitted to: (i) take and disclose to Parent’s shareholders a position with respect to any tender or exchange offer by a third party or amend or withdraw such a position complying with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act in a manner consistent with its other obligations under this Section 5.8; or (ii) at any time prior to obtaining the approval of the Parent shareholders described in Section 4.19, negotiate or otherwise engage in discussions with, and furnish nonpublic information to, any person in response to an unsolicited written Parent Acquisition Proposal by such person, if (A) the Parent Board determines in good faith after consultation with and advice from a financial advisor of nationally recognized reputation, that such proposal is reasonably likely to result in a Parent Superior Proposal, (B) such person executes a confidentiality agreement no less favorable to the Parent than the Confidentiality Agreement, (C) the Parent Board determines in good faith after consultation with the Parent’s outside legal counsel that the failure to engage in such negotiation or discussions or provide such information would be reasonably likely to violate the Parent Board’s fiduciary duties under applicable Law, (D) the Parent Board determines in good faith after consultation with the Parent’s outside legal counsel that such proposal did not result from a breach of this Section 5.8, and (E) subject to providing twenty-four (24) hours’ prior written notice of its decision to take such action to the Company. Section 5.8.3 Parent shall notify the Company in writing of the receipt of any Parent Acquisition Proposal (including the material terms thereof and the identity of the person making it) as promptly as practicable (but in no case later than twenty-four (24) hours after its receipt); shall promptly (but in no case later than twenty-four (24) hours after its receipt) inform the Company regarding any material changes to the status, terms and details (including amendments or proposed amendments) of such Parent Acquisition Proposal; and shall deliver to the Company concurrently with the delivery to such person or its representatives a copy of any non-public information as permitted by Section 5.8.2 which has not previously been delivered by Parent to the Company. Section 5.8.4 Except as otherwise specifically permitted by this Section 5.8.4, neither the Parent Board nor any committee thereof shall (1) withdraw or modify, or publicly propose to withdraw or modify, in a manner adverse to the Company, its recommendation of the approval of this Agreement and the issuance of shares of Parent Common Stock in accordance with Article 2, or (2) approve, recommend or take a public position with respect to, or publicly propose to approve, recommend or take a public position with respect to, any Parent Acquisition Proposal. Notwithstanding the foregoing and provided that Parent has not breached this Section 5.8, prior to approval of this Agreement by the Required Parent Shareholders and the approval of the issuance of shares of Parent Common Stock in accordance with Article 2 by the Majority Parent Shareholders, the Parent Board shall be permitted (i) to make a Parent Adverse Recommendation Change, (ii) to approve or recommend any Parent Superior Proposal, (iii) to take any action otherwise prohibited by Section 5.8.1 or the first sentence of this Section 5.8.4, or (iv) to terminate this Agreement in accordance with Section 7.1.7.2 below and in connection therewith enter into an agreement with respect to such Parent Superior Proposal, but, (1) in the case of each of (ii), (iii) and (iv), only if (y) Parent has received a proposal which the Parent Board determines in good faith after consultation with a financial advisor of nationally recognized reputation constitutes a Parent Superior Proposal and (z) the Parent Board determines in good faith, after consultation with Parent’s outside legal counsel, that the failure to take such action would be reasonably likely to violate the Parent Board’s fiduciary duties under applicable Law; and (2) in the case of (i) if the Parent Board determines in good faith after consultation with the Company’s outside legal counsel that the failure to make a Parent Adverse Recommendation Change would be reasonably likely to violate its fiduciary duties under applicable Law. Notwithstanding anything in this Section 5.8 to the contrary, Parent shall not exercise its right to terminate this Agreement under Section 7.1.7.2 unless (A) Parent shall have delivered to the Company a prior written notice, not less than five (5) Business Days prior to the time such action is intended to be taken, advising the Company that Parent or the Parent Board intends to take such action with respect to a Parent Superior Proposal, specifying in reasonable detail the material terms of the Parent Superior Proposal, (B) Parent negotiates with the Company in good faith to make such adjustments to the terms and conditions of this Agreement, the Merger and the other transactions contemplated hereby as would enable the Parent Board to determine that failing to take such actions referred to in clauses (i) – (iv) of the second sentence of this Section would not be reasonably likely to violate the Company Board’s fiduciary duties under applicable Law, and (C) on or before the fifth Business Day following receipt by the Company of such notice, and taking into account any revised proposal made by the Company since receipt of the notice referred to in clause (A) of this sentence, such Parent Superior Proposal remains a Parent Superior Proposal and the Parent Board has again made the determinations referred to above; provided, however, that in the event that any such Parent Acquisition Proposal is thereafter modified by the person making such Parent Acquisition Proposal and the Parent Board determines to exercise its right to terminate this Agreement under Section 7.1.7.2, Parent shall again comply with clauses (A) and (B) of this paragraph except that the five Business-Day period shall be reduced to three Business Days.
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Parent Acquisition Proposals. Section 5.8.1 (i) Subject to Section 5.8.2 and 5.8.4Sections 5.2(c)(ii) through 5.2(c)(v), the Parent agrees that neither it shall not, nor shall it permit or authorize any Parent Subsidiaries or any of its or their directors or officers tosubsidiaries shall, and that it shall use its reasonable best efforts to cause its and its subsidiaries’ employees, agents and representatives (including any other Parent Representative investment banker, attorney or accountant (“Representatives”) retained by it or any of its subsidiaries) not to, directly or indirectly, take any action to (A) solicitinitiate, initiate solicit or knowingly encourage any inquiries with respect to, or the making of, a Parent Acquisition Proposal, (B) participate engage in any way in discussions or negotiations withconcerning, or furnish provide any non-public confidential information to, or data to any person with respect Person relating to a Parent Acquisition Proposal other than the MergerProposal, (C) withdraw approve or modify recommend or propose publicly to approve or recommend, any Parent Acquisition Proposal or (D) approve or recommend, or propose to approve or recommend, or execute or enter into, any letter of intent, agreement in principle, merger agreement, acquisition agreement, option agreement or other similar agreement relating to any Parent Acquisition Proposal or propose publicly or agree to do any of the foregoing relating to any Parent Acquisition Proposal.
(ii) Nothing contained in this Agreement shall prevent Parent or Parent’s Board from complying with its disclosure obligations under Sections 14d-9 and 14e-2 of the Exchange Act; provided, however, that if such disclosure has the effect of withdrawing, modifying or qualifying the approval of this Agreement by Parent’s Board or the Parent Board Recommendation in a manner adverse to the CompanyCompany or the approval of this Agreement by the Parent’s Stockholders, the Company shall have the right to terminate this Agreement to the extent set forth in Section 7.3(c).
(Diii) other than Notwithstanding the Mergerlimitations set forth in Section 5.2(c)(i), approveuntil the earlier of receipt of the Parent Stockholder Approval and the Termination Date, recommend if Parent receives a Parent Acquisition Proposal which (A) constitutes a Parent Superior Proposal, or take any public position (including any position communicated to shareholders B) which the Board of Parent or any other persondetermines in good faith could reasonably be expected to result in a Parent Superior Proposal, but not including communications made in internal discussions among Parent’s management and its advisorsParent may take the following actions: (x) other than “against” any furnish nonpublic information to the third party making such Parent Acquisition Proposal, if, and only if, prior to so furnishing such information, Parent receives from the third party an executed confidentiality agreement with confidentiality provisions no less favorable to Parent than the letter agreement, dated as of February 14, 2007, between the Company and Parent and the letter agreement, dated as of April 13, 2007, between the Company and Parent and (y) engage in discussions or negotiations with the third party with respect to the Parent Acquisition Proposal.
(Eiv) enter Notwithstanding anything in this Agreement to the contrary, nothing contained in this Agreement shall prevent Parent or Parent’s Board from, at any time prior, but not after, the time the Stock Issuance is approved by Parent’s Stockholders at the Parent Stockholder Meeting, recommending such an unsolicited bona fide written Parent Acquisition Proposal to Parent’s Stockholders, if and only to the extent that, (A) the Board of Parent determines in good faith, after consultation with its outside legal counsel, that failing to do so could reasonably be expected to constitute a breach of the Board of the Parent’s fiduciary duties under Applicable Law; and (B) Parent’s Board determines in good faith that such Parent Acquisition Proposal (in the form, other than immaterial changes, that was the subject of the Parent Superior Proposal Notice, as defined below) constitutes a Parent Superior Proposal and the Company shall have received written notice (the “Parent Superior Proposal Notice”) of Parent’s intention to take such action at least four business days prior to the taking of such action by Parent and has complied with its other obligations under this Section 5.2(c)(iv); provided, however, that Parent’s Board continues to believe, after taking into account any agreement modifications to the terms of the transaction contemplated by this Agreement that are proposed by the Company after its receipt of the Parent Superior Proposal Notice that such Parent Acquisition Proposal constitutes a Parent Superior Proposal. If there is a Parent Change of Recommendation as a result of a Parent Acquisition Proposal that is a Parent Superior Proposal and Parent’s Board recommends such an unsolicited bona fide written Parent Acquisition Proposal pursuant to this clause (iv), Parent shall be entitled to terminate this Agreement pursuant to Section 7.4(b). 40
(v) Parent agrees that it will immediately cease and cause to be terminated any existing activities, discussions or letter of intent negotiations with any Person (other than the parties hereto) conducted heretofore with respect to any Parent Acquisition Proposal. Subject Parent agrees that it will take the necessary steps to promptly inform the officers, directors, employees and Representatives of Parent and its subsidiaries of the obligations undertaken in this Section 5.8.2(ii5.2(c), on .
(vi) From and after the date of this Agreement, Parent shall immediately cease and cause promptly orally notify the Company of any request for information or any inquiries, proposals or offers relating to be terminated any negotiations a Parent Acquisition Proposal indicating, in connection with any person (other than the Company) conducted theretofore by Parentsuch notice, the name of such Person making such request, inquiry, proposal or offer and the material terms and conditions of any proposals or offers and Parent Subsidiaries shall provide to the Company written notice of any such inquiry, proposal or offer within forty-eight (48) hours of such event and copies of any written or electronic correspondence to or from any Person making a Parent Representative with respect to Acquisition Proposal. Parent shall keep the Company informed orally on a current basis of the status of any Parent Acquisition Proposal, and shall promptly request the other parties thereto to promptly return or destroy subject to the terms of such agreement any confidential information previously furnished by Parent, the Parent Subsidiaries or the Parent Representatives thereunder.
Section 5.8.2 Notwithstanding anything to the contrary contained in Section 5.8.1, Parent or the Parent Board, as applicable, shall be permitted to:
(i) take and disclose to Parent’s shareholders a position including with respect to the status and terms of any tender or exchange offer by a third party or amend or withdraw such a position complying with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act in a manner consistent with its other obligations under this Section 5.8; or
(ii) at any time prior to obtaining the approval of the Parent shareholders described in Section 4.19, negotiate or otherwise engage in discussions with, and furnish nonpublic information to, any person in response to an unsolicited written Parent Acquisition Proposal by such person, if (A) the Parent Board determines in good faith after consultation with and advice from a financial advisor of nationally recognized reputation, that such proposal is reasonably likely to result in a or offer and whether any such proposal or offer has been withdrawn or rejected and Parent Superior Proposal, (B) such person executes a confidentiality agreement no less favorable shall provide to the Parent than the Confidentiality Agreement, (C) the Parent Board determines in good faith after consultation with the Parent’s outside legal counsel that the failure to engage in such negotiation or discussions or provide such information would be reasonably likely to violate the Parent Board’s fiduciary duties under applicable Law, (D) the Parent Board determines in good faith after consultation with the Parent’s outside legal counsel that such proposal did not result from a breach of this Section 5.8, and (E) subject to providing twenty-four (24) hours’ prior Company written notice of its decision any such developments (including copies of any written proposals or requests for information) within forty-eight (48) hours. Parent also agrees to take such action provide any information to the Company (not previously provided to the Company) that it is providing to another Person pursuant to this Section 5.2(c)(vii) at substantially the same time it provides such information to such other Person.
Section 5.8.3 Parent shall notify the Company in writing of the receipt of any Parent Acquisition Proposal (including the material terms thereof and the identity of the person making itvii) as promptly as practicable (but in no case later than twenty-four (24) hours after its receipt); shall promptly (but in no case later than twenty-four (24) hours after its receipt) inform the Company regarding any material changes to the status, terms and details (including amendments or proposed amendments) of such Parent Acquisition Proposal; and shall deliver to the Company concurrently with the delivery to such person or its representatives a copy of any non-public information as permitted by Section 5.8.2 which has not previously been delivered by Parent to the Company.
Section 5.8.4 Except as otherwise specifically permitted by this Section 5.8.4, neither the Parent Board nor any committee thereof shall (1) withdraw or modify, or publicly propose to withdraw or modify, in a manner adverse to the Company, its recommendation of the approval of this Agreement and the issuance of shares of Parent Common Stock in accordance with Article 2, or (2) approve, recommend or take a public position with respect to, or publicly propose to approve, recommend or take a public position with respect to, any Parent Acquisition Proposal. Notwithstanding the foregoing and provided that Parent has not breached this Section 5.8, prior to approval of this Agreement by the Required Parent Shareholders and the approval of the issuance of shares of Parent Common Stock in accordance with Article 2 by the Majority Parent Shareholders, the Parent Board shall be permitted (i) to make a Parent Adverse Recommendation Change, (ii) to approve or recommend any Parent Superior Proposal, (iii) to take any action otherwise prohibited by Section 5.8.1 or the first sentence of this Section 5.8.4, or (iv) to terminate this Agreement in accordance with Section 7.1.7.2 below and in connection therewith enter into an agreement with respect to such Parent Superior Proposal, but, (1) in the case of each of (ii), (iii) and (iv), only if (y) Parent has received a proposal which the Parent Board determines in good faith after consultation with a financial advisor of nationally recognized reputation constitutes a Parent Superior Proposal and (z) the Parent Board determines in good faith, after consultation with Parent’s outside legal counsel, that the failure to take such action would be reasonably likely to violate the Parent Board’s fiduciary duties under applicable Law; and (2) in the case of (i) if the Parent Board determines in good faith after consultation with the Company’s outside legal counsel that the failure to make a Parent Adverse Recommendation Change would be reasonably likely to violate its fiduciary duties under applicable Law. Notwithstanding anything in this Section 5.8 to the contrary, Parent shall not exercise its right to terminate this Agreement under Section 7.1.7.2 unless (A) Parent shall have delivered to the Company a prior written notice, not less than five (5) Business Days prior to the time such action is intended to be taken, advising the Company that Parent or the Parent Board intends to take such action with respect to a Parent Superior Proposal, specifying in reasonable detail the material terms of the Parent Superior Proposal, (B) Parent negotiates with the Company in good faith to make such adjustments to the terms and conditions For purposes of this Agreement, the Merger and the other transactions contemplated hereby as would enable the Parent Board to determine that failing to take such actions referred to in clauses (i) – (iv) of the second sentence of this Section would not be reasonably likely to violate the Company Board’s fiduciary duties under applicable Law, and (C) on or before the fifth Business Day following receipt by the Company of such notice, and taking into account any revised proposal made by the Company since receipt of the notice referred to in clause (A) of this sentence, such Parent Superior Proposal remains a Parent Superior Proposal and the Parent Board has again made the determinations referred to above; provided, however, that in the event that any such Parent Acquisition Proposal is thereafter modified by the person making such Parent Acquisition Proposal and the Parent Board determines to exercise its right to terminate this Agreement under Section 7.1.7.2, Parent shall again comply with clauses (A) and (B) of this paragraph except that the five Business-Day period shall be reduced to three Business Days.:
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Sources: Merger Agreement (Urs Corp /New/)