Solicitation; Change of Company Recommendation. (a) Except as permitted by this Section 5.03, (i) from and after the date of this Agreement, the Company shall, shall cause the Company Subsidiaries and its and their respective directors, officers and employees to, and shall use reasonable best efforts to cause the other Company Representatives to, immediately cease any solicitations, discussions or negotiations with any persons that may be ongoing with respect to any Competing Proposal and to have destroyed or returned to the Company any confidential information that has been provided to any person in connection with any Competing Proposal and will enforce and, except as otherwise prohibited by applicable Law, will not waive any provisions of, any confidentiality or standstill agreement (or any similar agreement) to which the Company or any Company Subsidiary is a party relating to any such Competing Proposal; provided, that the Company shall be permitted to grant a waiver of any standstill agreement, in response to a bona fide unsolicited request (and to permit such request) for such waiver from the counterparty thereto, to permit a Competing Proposal to be made and (ii) from and after the date of this Agreement until the earlier of the Effective Time and the termination of this Agreement, the Company shall not, shall cause the Company Subsidiaries and its and their respective directors, officers and employees not to, and shall use reasonable best efforts to cause any other Company Representative not to, directly or indirectly, (A) initiate, solicit or knowingly encourage or facilitate (including by way of furnishing non-public information) any inquiry, proposal, indication of interest or offer which constitutes, or would reasonably be expected to lead to, the submission of any Competing Proposal, (B) furnish any non-public information regarding the Company or any Company Subsidiary to any third person in connection with or in response to a Competing Proposal, (C) initiate, solicit, knowingly encourage or facilitate, or participate in any discussions or negotiations with, knowingly encourage or facilitate in any way any effort by, any third person with respect to any Competing Proposal, (D) approve or recommend, or propose to approve or recommend, a Competing Proposal or (E) agree to do any of the foregoing. The Company shall not, and shall cause the Company Subsidiaries not to, enter into any Contract with any person subsequent to the date of this Agreement, and none of the Company or any Company Subsidiary is party to any Contract, in each case, that prohibits the Company from complying with its obligations under this Section 5.03. (b) Notwithstanding anything to the contrary contained in this Agreement, but subject to the last sentence of this Section 5.03(b), if, at any time following the date of this Agreement and prior to receipt of the Company Stockholder Approval, (i) the Company has received a bona fide written Competing Proposal from a person that did not result from a breach of this Section 5.03 (other than a breach that is de minimis), (ii) the Company Board determines in good faith, after consultation with its financial advisors and outside counsel, that such Competing Proposal constitutes or could reasonably be expected to lead to a Superior Proposal and (iii) the Company provides prior written notice to Parent disclosing its receipt of the Competing Proposal and including the name of the person making such Competing Proposal, the material terms and conditions of such Competing Proposal and a copy of any relevant Acquisition Agreement and any other relevant transaction documents, and disclosing its intent to furnish information or enter into discussions or negotiations with such person pursuant to this Section 5.03(b), then the Company may (A) furnish information with respect to the Company and the Company Subsidiaries to the person making such Competing Proposal and its representatives and (B) participate in discussions or negotiations with the person making such Competing Proposal and its representatives regarding such Competing Proposal; provided, however, that the Company (x) will not, will not permit the Company Subsidiaries to, and will not authorize the Company Representatives to, disclose any material non-public information regarding the Company to such person without first entering into an Acceptable Confidentiality Agreement with such person; (y) will keep Parent reasonably informed, on a prompt basis (and in any event within twenty-four (24) hours thereafter), of any material amendments or material developments with respect to such Competing Proposal (including any material changes thereto, and including by providing copies of any revised or new Acquisition Agreement and any other relevant transaction documents) and (z) will provide to Parent any material information concerning the Company or the Company Subsidiaries to be provided or made available to such other person (or its representatives) that was not previously provided or made available to Parent. None of the foregoing shall prohibit the Company or the Company Representatives from contacting any person or group of persons that has made a Competing Proposal after the date of this Agreement solely to request clarification of the terms and conditions thereof so as to determine whether the Competing Proposal constitutes or could reasonably be expected to lead to a Superior Proposal, and any such actions shall not be a breach of this Section 5.03; provided, however, that the Company shall have provided to Parent the information in clause (iii) of the first sentence of this Section 5.03(b). (c) Except as set forth in Section 5.03(d) or Section 5.03(e), neither the Company Board nor any committee thereof shall (i) adopt, authorize, approve or recommend, or publicly propose to adopt, authorize, approve or recommend, any Competing Proposal, (ii) withhold, withdraw, modify, qualify or amend, or publicly propose to withhold, withdraw, modify, qualify or amend, in each case in a manner adverse to Parent, the Company Recommendation or fail to include the Company Recommendation in the Proxy Statement, (iii) take any formal action or make any recommendation or public statement in connection with a tender offer or exchange offer other than a recommendation against such offer or a temporary “stock, look and listen” communication by the Company Board pursuant to Rule 14d-9(f) of the Exchange Act, (iv) fail to publicly recommend against any Competing Proposal, or fail to publicly reaffirm the Company Board Recommendation, in each case within ten (10) days after the written request of Parent following a Competing Proposal that has been publicly announced (or such fewer number of days as remains prior to the Company Stockholder Meeting), (v) resolve, propose or agree to do any of the foregoing (any action set forth in the foregoing clause (i), (ii), (iii), (iv) or (v), a “Change of Company Recommendation”) or (vi) allow the Company or any of the Company Subsidiaries to enter into any letter of intent, term sheet, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement or other similar agreement relating to, or that is intended to result in, or would reasonably be expected to lead to, any Competing Proposal (other than an Acceptable Confidentiality Agreement) (each an “Acquisition Agreement”) or requiring the Company to abandon, terminate or fail to consummate the Transactions. (d) Notwithstanding anything to the contrary contained in this Agreement, at any time prior to receipt of the Company Stockholder Approval, the Company Board may make a Change of Company Recommendation, solely in response to (1) a Superior Proposal or (2) an Intervening Event, if: (i) either (A) a Competing Proposal that did not result from a breach (other than a breach that is de minimis) of this Section 5.03 is made to the Company by a third person and such Competing Proposal is not withdrawn or (B) an Intervening Event has occurred and is continuing; (ii) the Company Board determines in good faith, after consultation with its financial advisors and outside legal counsel, that (x) in the case of a Competing Proposal, such Competing Proposal constitutes a Superior Proposal and (y) the failure to make a Change of Company Recommendation would be inconsistent with its fiduciary duties under applicable Law; (iii) the Company provides Parent at least three (3) Business Days’ prior written notice of the Company’s intention to make a Change of Company Recommendation (a “Notice of Change of Recommendation”), which notice shall (x) state expressly that it has received a Superior Proposal or that an Intervening Event has occurred, (y) in the case of a Superior Proposal, identify the person making such Superior Proposal and include the material terms and conditions of such Superior Proposal (and the Company shall contemporaneously provide a copy of any relevant Acquisition Agreement and any other relevant transaction documents to Parent), or, in the case of an Intervening Event, the material facts and circumstances of such Intervening Event and (z) state expressly that the Company Board intends to make a Change of Company Recommendation, and specifying, in reasonable detail, the reasons therefor; (iv) if requested by Parent, the Company has negotiated in good faith with Parent with respect to any changes to the terms of this Agreement proposed by Parent for at least three (3) Business Days following receipt by Parent of such Notice of Change of Recommendation (it being understood and agreed that any amendment to any material term of such Superior Proposal shall require a new Notice of Change of Recommendation and an additional two (2) Business Day period from the date of such notice); (v) taking into account any changes to the terms of this Agreement offered by Parent in writing, the Company Board has determined in good faith, after consultation with its financial advisors and outside legal counsel, that (x) in the case of a Competing Proposal, such Competing Proposal would continue to constitute a Superior Proposal if such changes offered in writing by Parent were to be given effect and (y) the failure to make a Change of Company Recommendation would be inconsistent with its fiduciary duties under applicable Law; and (vi) the Company shall have complied with this Section 5.03 with respect to such Superior Proposal or Intervening Event (other than with respect to any breach that is de minimis). (e) Notwithstanding any Change of Company Recommendation, unless this Agreement shall have been terminated in accordance with Article VII, (x) this Agreement shall be submitted to the stockholders of the Company at the Company Stockholder Meeting for the purpose of obtaining the Company Stockholder Approval, and nothing contained herein shall be deemed to relieve the Company of such obligation and (y) the Company Board shall not submit to the stockholders of the Company any Competing Proposal, or, except as permitted herein, propose to do so. (f) Nothing contained in this Section 5.03 shall prohibit the Company Board from (i) disclosing to the stockholders of the Company a position contemplated by Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act or (ii) making any disclosure to the stockholders of the Company if the Company Board determines in good faith, after consultation with outside counsel, that the failure to make such disclosure would be inconsistent with its fiduciary duties under applicable Law to the stockholders of the Company (for the avoidance of doubt, it being agreed that the issuance by the Company or the Company Board of a “stop, look and listen” statement pending disclosure of its position, as contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act, shall not constitute a Change of Company Recommendation); provided, however, that in any event, the Company Board shall not make a Change of Company Recommendation except in accordance with Section 5.03(d). (g) Any violation of the restrictions set forth in this Section 5.03 by any Company Representative shall be deemed to be a breach of this Section 5.03 by the Company.
Appears in 1 contract
Sources: Merger Agreement (West Corp)
Solicitation; Change of Company Recommendation. (a) Except as permitted by this Section 5.03, (i) from and after the date of this Agreement, the Company shall, shall cause the Company Subsidiaries and its and their respective directors, officers and employees to, and shall use reasonable best efforts to cause the other Company Representatives to, immediately cease and cause to be terminated any solicitations, encouragements, discussions or negotiations with any persons that may be ongoing with respect to any Competing Proposal and or any inquiry or proposal that constitutes or could reasonably be expected to have destroyed or returned lead to a Competing Proposal; (ii) the Company any shall promptly (and in event within 48 hours) request that all confidential information that has been provided to any person in connection with any Competing Proposal and will enforce and, except as otherwise prohibited by applicable Law, will not waive any provisions of, any confidentiality or standstill agreement (or any similar agreement) to which the Company or any Company Subsidiary is a party relating previously furnished to any such Competing Proposal; provided, that persons and their respective representatives be returned or destroyed promptly and (iii) the Company shall be permitted immediately terminate all access previously granted to grant a waiver of such persons to any standstill agreement, in response to a bona fide unsolicited request (and to permit such request) for such waiver from the counterparty thereto, to permit a Competing Proposal to be made physical or electronic data room; and (iiiv) from and after the date of this Agreement until the earlier of the Effective Time and the valid termination of this AgreementAgreement pursuant to Section 7.01, the Company shall not, shall cause the Company Subsidiaries and its and their respective directors, officers and employees not to, and shall use reasonable best efforts to cause any other the Company Representative Representatives not to, directly or indirectly, (A) initiate, solicit or solicit, knowingly encourage or knowingly facilitate (including by way 1) the submission of furnishing non-public informationany Competing Proposal or (2) any inquiryinquiries regarding, proposalor the making, indication disclosure or submission of interest any proposal or offer which that constitutes, or would reasonably be expected to lead to, the submission of any a Competing Proposal, (B) furnish any non-public information regarding the Company or any Company Subsidiary to any third person in connection with or in response to a Competing Proposal, (C) initiateengage in, solicitknowingly facilitate, knowingly encourage or facilitate, or otherwise participate in any discussions or negotiations with, knowingly encourage or facilitate in any way any effort by, with any third person with respect to any Competing Proposal, or any proposal, inquiry or offer that would reasonably be expected to lead to, a Competing Proposal, made by such person, or (D) approve terminate, amend, release, modify or recommendknowingly fail to enforce, or propose waive, any provision of any standstill or confidentiality agreement with any person (other than with Parent, Sub or any affiliate of Parent or Sub), in each case in connection with any potential Competing Proposal, including any inquiry, proposal or offer that relates to approve or recommendconstitutes, or would reasonably be expected to lead to, a Competing Proposal, except in the case of this clause (D) following receipt of a Competing Proposal or that satisfies clauses (Ei) agree to do any and (ii) of the foregoing. The Company shall not, and shall cause the Company Subsidiaries not to, enter into any Contract with any person subsequent Section 5.03(b) to the date of this Agreement, and none extent that such failure to take such actions would reasonably be expected to be inconsistent with the fiduciary duties of the Company Board (or any Company Subsidiary is party to any Contract, in each case, that prohibits the Company from complying with its obligations a committee thereof) under this Section 5.03applicable Law.
(b) Notwithstanding anything to the contrary contained in this Agreement, but subject to the last sentence of this Section 5.03(b), if, at any time following the date of this Agreement and prior to receipt of the Company Stockholder Shareholder Approval, (i) the Company has received receives a bona fide written Competing Proposal from a person that the Company Board (or any committee thereof) believes to be bona fide and such written Competing Proposal did not result from a breach of this Section 5.03 (other than a breach that is de minimis)5.03, and (ii) the Company Board (or any committee thereof) determines in good faith, after consultation with its financial advisors and outside legal counsel, that such Competing Proposal constitutes or could reasonably be expected to lead to a Superior Proposal and (iii) from the same person making such Competing Proposal, then the Company provides prior written notice to Parent disclosing its receipt may, only following the execution of the Competing Proposal and including the name of an Acceptable Confidentiality Agreement with the person making such Competing Proposal, the material terms and conditions of such Competing Proposal and a copy of any relevant Acquisition Agreement and any other relevant transaction documents, and disclosing its intent to furnish information or enter into discussions or negotiations with such person pursuant to this Section 5.03(b), then the Company may (A) furnish information with respect to the Company and the Company Subsidiaries to the person making such Competing Proposal and its representatives and (B) participate in discussions or negotiations with the person making such Competing Proposal and its representatives regarding such Competing Proposal; provided, however, that the Company will (x) will not, will not permit the Company Subsidiaries to, and will not authorize the Company Representatives to, disclose any material non-public information regarding the Company to such person without first entering into an Acceptable Confidentiality Agreement with such person; (y) will keep Parent reasonably informed, on a prompt basis as promptly as practicable (and in any event within twenty-four (2448 hours) hours thereafter), notify Parent of the receipt of any material amendments Competing Proposal that constitutes or material developments with respect could reasonably be expected to lead to a Superior Proposal, including the identity of any person making such Competing Proposal and the material terms thereof, (including any material changes thereto, y) furnish to Parent a true and including by providing copies correct copy of any revised confidentiality or new Acquisition Agreement and any other relevant transaction documents) agreement entered into with such person and (z) will as promptly as practicable (and in any event within 24 hours after providing material) provide to Parent any material information concerning the Company or the Company Subsidiaries to be provided or made available to such other person (or its representatives) that was not previously provided or made available to Parent. None of the foregoing provisions of Section 5.03(a) or Section 5.03(b) shall prohibit the Company or the Company Representatives from contacting communicating with any person or group of persons that has made a Competing Proposal after the date of this Agreement that did not result from a breach of Section 5.03(a) solely to request the clarification of the terms and conditions thereof so as to determine whether the Competing Proposal constitutes or could reasonably be expected to lead to a Superior Proposal, and any such actions communications, to the extent limited to such purpose, shall not be a breach of this Section 5.03; provided, however, provided that the Company shall have has first provided to Parent the information in clause (iii) written notice of the first sentence of this Section 5.03(bCompeting Proposal (and such anticipated effort to seek clarification).
(c) Except as set forth in Section 5.03(d) or Section 5.03(e), neither the Company Board nor any committee thereof shall (i) adopt, authorize, approve approve, endorse, declare advisable or recommend, recommend to the shareholders of the Company (or publicly propose to adopt, authorize, approve approve, endorse, declare advisable or recommendrecommend to the shareholders of the Company), any Competing Proposal, (ii) withhold, withdrawmodify, modifyamend, change, qualify or amendwithdraw, or publicly propose to withhold, withdrawmodify, modifyamend, change, qualify or amendwithdraw, in each case in a manner adverse to ParentParent or Sub, the Company Recommendation or fail to include the Company Recommendation in the Proxy Statement, (iii) take any formal action allow, authorize, cause or make any recommendation or public statement in connection with a tender offer or exchange offer other than a recommendation against such offer or a temporary “stock, look and listen” communication by permit the Company Board pursuant to Rule 14d-9(f) or any of the Exchange ActCompany Subsidiaries to execute or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement to effect any Competing Proposal with the person that made such Competing Proposal (other than, solely when permitted by Section 5.03(b), an Acceptable Confidentiality Agreement), or requiring the Company to abandon, terminate or fail to consummate the Transactions (each, a “Company Acquisition Agreement”) or (iv) fail to publicly recommend against any Competing Proposal, or fail to publicly reaffirm the Company Board Recommendation, in each case within ten (10) days after the written request of Parent following a Competing Proposal that has been publicly announced (or such fewer number of days as remains prior to the Company Stockholder Meeting), (v) resolve, propose resolve or agree to do any of the foregoing (any action set forth in the foregoing clause clauses (i), (ii), (iii), (iv) or (vi)–(iv), a “Change of Company Recommendation”) or (vi) allow the Company or any of the Company Subsidiaries to enter into any letter of intent, term sheet, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement or other similar agreement relating to, or that is intended to result in, or would reasonably be expected to lead to, any Competing Proposal (other than an Acceptable Confidentiality Agreement) (each an “Acquisition Agreement”) or requiring the Company to abandon, terminate or fail to consummate the Transactions).
(d) Notwithstanding anything to the contrary contained in this AgreementAgreement (but subject to prior compliance with the provisions set forth below), at any time prior to receipt of the Company Stockholder Shareholder Approval, the Company Board (or any committee thereof) may make a Change of Company RecommendationRecommendation (and, solely if so desired by the Company Board), terminate this Agreement in response accordance with Section 7.01(f) in order to (1) cause the Company to concurrently enter into a Superior definitive agreement with respect to a Competing Proposal or (2) an Intervening Eventif, but only if, prior to taking any such action:
(i) either (A) a bona fide written Competing Proposal (that did not result from a breach (other than a breach that is de minimis) of this Section 5.03 5.03) is made to the Company by a third person after the date of this Agreement and such Competing Proposal is not withdrawn or and (B) an Intervening Event has occurred and is continuing;
(ii) the Company Board (or any committee thereof) determines in good faith, after consultation with its financial advisors and outside legal counsel, that (xI) in the case of a Competing Proposal, such Competing Proposal constitutes a Superior Proposal and (yII) the failure to make a Change of Company Recommendation in connection with such Superior Proposal would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law;
(iiiii) the Company provides Parent at least three (3) Business Days’ prior written notice of the Company’s intention of the Company Board (or any committee thereof) to make a Change of Company Recommendation or to terminate this Agreement to enter into a definitive agreement with respect to a Competing Proposal (a “Notice of Change of Recommendation”)) at least three (3) Business Days in advance of taking any such action, which notice shall (x) state expressly that it has received a Superior Proposal or that an Intervening Event has occurred, (y) in the case of a Superior Proposal, identify the person making such Superior Proposal and include the material terms and conditions of the Superior Proposal and copies of the proposed transaction documents in respect of such Competing Proposal, including the identity of the person making such Superior Proposal (and it being agreed that neither the delivery of the Notice of Change of Recommendation by the Company nor any public disclosure thereof shall contemporaneously provide a copy of any relevant Acquisition Agreement and any other relevant transaction documents to Parent), or, in the case of an Intervening Event, the material facts and circumstances of such Intervening Event and (z) state expressly that the Company Board intends to make constitute a Change of Company Recommendation, and specifying, in reasonable detail, the reasons therefor);
(iviii) if requested by Parent, the Company has negotiated negotiated, and caused any applicable Company Representatives to negotiate, in good faith with Parent with respect to any changes to the terms of this Agreement Agreement, the Financing Commitments and the Guarantee proposed by Parent in a written binding offer, for at least three (3) Business Days following receipt by Parent of such Notice of Change of Recommendation (it being understood and agreed that any amendment to any material term of such the Superior Proposal shall require a new Notice of Change of Recommendation and an additional two (2) Business Day period from the date of such notice);, and during each such period, the Company Board has considered in good faith any such proposed changes by Parent; and
(viv) taking into account any changes to the terms of this Agreement Agreement, the Financing Commitments and the Guarantee offered by Parent in writinga binding irrevocable written offer to the Company pursuant to clause (iii) above, the Company Board (or any committee thereof) has determined in good faith, after consultation with its financial advisors and outside legal counsel, that (x) in the case of a Competing Proposal, such Competing Proposal would continue to constitute a Superior Proposal if such changes irrevocably offered in writing by Parent were to be given effect effect.
(e) Other than in connection with a Competing Proposal (which shall be subject to Section 5.03(d) and shall not be subject to this Section 5.03(e)), nothing in this Agreement shall prohibit or restrict the Company Board (yor any committee thereof) from effecting a Change of Company Recommendation in response to an Intervening Event if the Company Board determines in good faith, after consultation with the Company’s financial advisors and outside legal counsel, that the failure of the Company Board to make effect a Change of Company Recommendation would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law; and
(vi) provided, that the Company shall have complied with this Section 5.03 with respect give Parent at least three (3) Business Days of such determination and the intention of the Company Board (or any committee thereof) to take such Superior Proposal or Intervening Event action, which notice shall include a reasonably detailed description of the basis for such Change of Company Recommendation (other than with respect to it being agreed that neither the delivery of such notice by the Company nor any breach that is de minimis).
(e) Notwithstanding any public disclosure thereof shall constitute a Change of Company Recommendation, unless this Agreement shall have been terminated in accordance with Article VII, (x) this Agreement shall be submitted to the stockholders of the Company at the Company Stockholder Meeting for the purpose of obtaining the Company Stockholder Approval, and nothing contained herein shall be deemed to relieve the Company of such obligation and (y) the Company Board shall not submit to the stockholders of the Company any Competing Proposal, or, except as permitted herein, propose to do so).
(f) Nothing contained in this Section 5.03 shall prohibit the Company Board (or any committee thereof) from (i) disclosing to the stockholders shareholders of the Company a position contemplated by Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act or (ii) making any disclosure to the stockholders shareholders of the Company if the Company Board (or any committee thereof) determines in good faith, after consultation with outside legal counsel, that the failure to make such disclosure would reasonably be likely to be inconsistent with its fiduciary duties to the shareholders of the Company under applicable Law to the stockholders of the Company (for the avoidance of doubt, it being agreed that the issuance by the Company or the Company Board (or any committee thereof) of a “stop, look and listen” statement pending disclosure of its position, as contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act, shall not constitute a Change of Company Recommendation); provided, however, that . Nothing in any event, the foregoing provisions of this Section 5.03(f) will be deemed to permit the Company or the Company Board shall not make (or a committee thereof) to effect a Change of Company Recommendation except other than in accordance with Section 5.03(d) or Section 5.03(e).
(g) Any violation of the restrictions set forth in this Section 5.03 by any Company Representative shall be deemed to be a breach of this Section 5.03 by the Company.
Appears in 1 contract
Sources: Merger Agreement (MULTI COLOR Corp)
Solicitation; Change of Company Recommendation. (a) Except as permitted by this Section 5.03, (i) from and after the date hereof, until the earlier of the Acceptance Time and the termination of this Agreement, the Company shall, and shall cause the Company Subsidiaries and its the respective directors and their respective directors, officers of the Company and employees toeach wholly owned Company Subsidiary, and shall use reasonable best efforts to cause the other Company Representatives (the “Other Company Representatives”) to, immediately cease and terminate any solicitations, discussions or negotiations with any persons that may be ongoing with respect to any Competing Proposal and or any inquiries, proposals or offers that would reasonably be expected to have destroyed or returned lead to the Company any confidential information that has been provided to any person in connection with any a Competing Proposal and will enforce shall promptly request the return from, or the destruction by, all such persons of all non-public information previously furnished or made available to such persons by or on behalf of the Company in connection therewith (and, except as otherwise prohibited by upon becoming aware of noncompliance with such a request that is inconsistent with the terms of an applicable Lawconfidentiality agreement with such third party, will not waive any provisions of, any confidentiality or standstill agreement (or any similar agreement) to which the Company or any Company Subsidiary is a party relating to any such Competing Proposal; provided, that the Company shall be permitted use reasonable efforts to grant a waiver of any standstill agreement, in response to a bona fide unsolicited request (and to permit ensure that such requestrequests are complied with) for such waiver from the counterparty thereto, to permit a Competing Proposal to be made and (ii) from and after the date of this Agreement hereof until the earlier of the Effective Acceptance Time and the termination of this Agreement, the Company shall not, and shall cause the Company Subsidiaries and its the respective directors and their respective directors, officers of the Company and employees not toeach wholly owned Company Subsidiary, and shall use reasonable best efforts to cause any other the Other Company Representative Representatives not to, directly or indirectly, (A) initiate, solicit or knowingly facilitate or encourage the submission of any inquiries, proposals or facilitate (including by way of furnishing non-public information) any inquiry, proposal, indication of interest or offer which constitutesoffers that constitute, or that would reasonably be expected to lead to, the submission of any a Competing Proposal, (B) furnish any non-public information regarding the Company or any Company Subsidiary to any third person in connection with or in response to a any inquiries, proposals or offers that constitute, or that would reasonably be expected to lead to, Competing Proposal, (C) initiateenter into, solicit, knowingly encourage or facilitate, continue or participate in any discussions or negotiations with, knowingly encourage or facilitate in any way any effort by, with any third person with respect relating to any Competing Proposalinquiries, (D) approve proposals or recommendoffers that constitute, or propose that would reasonably be expected to approve or recommendlead to, a Competing Proposal or (ED) agree amend or grant any waiver or release under or fail to do use reasonable efforts to enforce any of the foregoing. The Company shall not, and shall cause the Company Subsidiaries not to, enter into standstill or similar agreement with respect to any Contract with any person subsequent to the date of this Agreement, and none Equity Interests of the Company or any the Company Subsidiary is party to any ContractSubsidiaries entered into in respect of, in each casecontemplation of or otherwise relating to a Competing Proposal, except to permit the making of a confidential Competing Proposal to the Company’s board of directors if the Company’s board of directors has determined in good faith, after consultation with outside legal counsel, that prohibits failing to waive or release such provision to permit the Company from complying making of a confidential Competing Proposal to the Company’s board of directors would reasonably be expected to be inconsistent with its obligations fiduciary duties under this Section 5.03Delaware Law.
(b) Notwithstanding anything Section 5.03(a) but subject (as applicable) to the contrary contained in this Agreement, but subject to the last sentence rest of this Section 5.03(b)5.03, if, at any time following the date of this Agreement hereof and prior to receipt of the Company Stockholder ApprovalAcceptance Time, (i) the Company has received a bona fide written Competing Proposal from a person that did not result from a breach (other than breaches of the timing requirements in Section 5.03(a) that are immaterial in nature and effect) of this Section 5.03 by the Company, the Company Subsidiaries, the respective directors and officers of the Company and each wholly owned Company Subsidiary or the Other Company Representatives (other than a breach that is de minimis)as if, for purposes of this clause only, all such Other Company Representatives were bound directly by the restrictions set forth in this Section 5.03) and (ii) the Company Board Company’s board of directors determines in good faith, after consultation with its financial advisors and outside counsel, that such Competing Proposal constitutes or could reasonably be expected to lead to a Superior Proposal and (iii) the Company provides prior written notice that failing to Parent disclosing take such action would reasonably be expected to be inconsistent with its receipt of the Competing Proposal and including the name of the person making such Competing Proposal, the material terms and conditions of such Competing Proposal and a copy of any relevant Acquisition Agreement and any other relevant transaction documents, and disclosing its intent to furnish information or enter into discussions or negotiations with such person pursuant to this Section 5.03(b)fiduciary duties under Delaware Law, then the Company may (A) furnish information with respect to the Company and the Company Subsidiaries to the person making such Competing Proposal and its representatives and (B) participate in discussions or negotiations with the person making such Competing Proposal and its representatives regarding such Competing Proposal; provided, however, that the Company (x) will not, and will not permit cause the Company Subsidiaries to, and will not authorize the Company Representatives not to, disclose any material non-public information regarding the Company to such person without first entering into an Acceptable Confidentiality Agreement with such person; (y) will keep Parent reasonably informed, on a prompt basis promptly (and in any event within twenty-four (24) 48 hours thereafter), ) notify Parent in writing of the receipt of any Competing Proposal, which such notification shall identify the person making, and the material amendments or terms and conditions of, any such Competing Proposal and shall keep Parent reasonably informed of (and in any event within 48 hours following) any material developments with respect changes to such Competing Proposal, and shall promptly (and in any event within 48 hours after receipt) provide to Parent, an unredacted copy of such Competing Proposal if made in writing (or a written summary of the material terms of such Competing Proposal if not made in writing), any relevant proposed material transaction agreements and a copy of any financing commitments (including any material changes thereto, and including by providing copies of any revised or new Acquisition Agreement and any other relevant transaction documentsredacted fee letters) and (z) will as promptly as practicable (and in any event within 48 hours thereafter) provide to Parent any material information concerning the Company or the Company Subsidiaries to be provided or made available to such other person (or its representatives) making a Competing Proposal that was not previously provided or made available to Parent. None of the foregoing shall prohibit the Company or the Company Representatives from contacting any person or group of persons that has made a Competing Proposal after the date of this Agreement that did not result from a breach of Section 5.03(a) solely to request the clarification of the terms and conditions thereof so as to determine whether the Competing Proposal constitutes or could reasonably be expected to lead to a Superior Proposal, and any such actions shall not be a breach of this Section 5.03; provided, however, that the Company shall have provided to Parent the information in clause (iii) of the first sentence of this Section 5.03(b).
(c) Except as set forth in Section 5.03(d) or Section 5.03(e), neither the Company Board Company’s board of directors nor any committee thereof shall (i) adopt, authorize, approve approve, endorse or recommend, or propose publicly propose to adopt, authorize, approve approve, endorse or recommend, or submit to the vote of any stockholders of the Company, any Competing Proposal, (ii) fail to make, withhold, withdrawqualify, modify, qualify modify or amend, or propose publicly propose to fail to make, withhold, withdrawqualify, modify, qualify modify or amend, in each case in a manner adverse to Parent, the Company Recommendation or Recommendation, (iii) fail to include the Company Recommendation in the Proxy StatementSchedule 14D-9, (iii) take any formal action or make any recommendation or public statement in connection with a tender offer or exchange offer other than a recommendation against such offer or a temporary “stock, look and listen” communication by the Company Board pursuant to Rule 14d-9(f) of the Exchange Act, (iv) fail to publicly recommend against any Competing Proposal, or fail to publicly reaffirm the Company Board Recommendation, in each case within ten (10) days after the written request of Parent following a Competing Proposal that has been publicly announced (or such fewer number of days as remains prior to the Company Stockholder Meeting), (v) resolve, propose or agree to do any of the foregoing (any action set forth in the foregoing clause clauses (i), (ii), ) through (iii), (iv) or (v), a “Change of Company Recommendation”), (iv) if a tender offer or exchange offer for Shares that constitutes a Competing Proposal is commenced, fail to recommend against acceptance of such tender offer or exchange offer by the stockholders of the Company (viincluding for these purposes, by taking no position with respect to the acceptance of such tender offer or exchange offer by the stockholders of the Company, which shall constitute a failure to recommend against acceptance of such tender offer or exchange offer) within ten Business Days after commencement thereof pursuant to Rule 14d-2 under the Exchange Act, (v) allow the Company or any of the Company Subsidiaries to enter into any letter of intent, term sheet, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement or other similar agreement relating to, or that is intended with respect to result in, or would reasonably be expected to lead to, any Competing Proposal (other than an Acceptable Confidentiality Agreement) (each an “Acquisition Agreement”) or requiring the Company to abandon, terminate or fail to consummate the TransactionsTransactions or (vi) approve any person becoming an “interested stockholder” under Section 203 of the DGCL.
(d) Notwithstanding anything Section 5.03(c) but subject (as applicable) to the contrary contained in this Agreementrest of Section 5.03, at any time prior to receipt of the Company Stockholder ApprovalAcceptance Time, the Company Board Company’s board of directors may make a Change of Company Recommendation, solely Recommendation in response to (1a Competing Proposal or terminate this Agreement pursuant to and in accordance with Section 7.01(f) in order to enter into a definitive written acquisition agreement with respect to a Superior Proposal or (2) an Intervening Event, if and only if:
(i) either (A) a Competing Proposal (that did not result from a breach of Section 5.03(a) (other than a breach breaches of the timing requirements in Section 5.03(a) that is de minimisare immaterial in nature and effect)) of this Section 5.03 is made to the Company by a third person and such Competing Proposal is not withdrawn or and (B) an Intervening Event has occurred and is continuing;
(ii) the Company Board Company’s board of directors determines in good faith, after consultation with its financial advisors and outside legal counsel, that (x) in the case of a Competing Proposal, such Competing Proposal constitutes a Superior Proposal and (y) the failure that failing to make effect a Change of Company Recommendation would reasonably be expected to be inconsistent with its fiduciary duties under applicable Delaware Law;
(iiiii) the Company provides provided Parent at least three (3) Business Days’ prior written notice of the Company’s intention to make a Change of Company Recommendation or terminate this Agreement pursuant to and in accordance with Section 7.01(f) (a “Notice of Change of Recommendation”), which notice shall (x) state expressly that it has received a Superior Proposal or that an Intervening Event has occurred, (y) in the case of a Superior Proposal, identify the person making such Superior Proposal and include the material terms and conditions of such Superior Proposal (and it being agreed that the delivery of the Notice of Change of Recommendation by the Company shall contemporaneously provide a copy of any relevant Acquisition Agreement and any other relevant transaction documents to Parent), ornot, in the case and of an Intervening Eventitself, the material facts and circumstances of such Intervening Event and (z) state expressly that the Company Board intends to make constitute a Change of Company Recommendation, and specifying, in reasonable detail, the reasons therefor);
(iviii) if requested by Parent, the Company has negotiated in good faith faith, and has directed any applicable Company Representatives to negotiate in good faith, with Parent with respect to any changes to the terms of this Agreement proposed by Parent for at least three four (34) Business Days following receipt by Parent of such Notice of Change of Recommendation (it being understood and agreed that any amendment to any material term of such Superior Proposal shall require a new Notice of Change of Recommendation and an additional two (2) Business Day period from the date of such notice);; and
(viv) taking into account any changes to the terms of this Agreement offered proposed by Parent in writingto the Company during such four (4) Business Day period or two (2) Business Day period, as applicable, the Company Board Company’s board of directors has determined in good faith, after consultation with its financial advisors and outside legal counsel, that (xA) in the case of a Competing Proposal, such Competing Proposal would continue to constitute a Superior Proposal if such changes offered in writing proposed by Parent were to be given effect and (yB) failing to effect a Change of Company Recommendation would continue to reasonably be expected to be inconsistent with its fiduciary duties under Delaware Law.
(e) Notwithstanding Section 5.03(c) but subject (as applicable) to the rest of Section 5.03, other than in connection with a Superior Proposal (which shall be subject to Section 5.03(d) and shall not be subject to this Section 5.03(e)), at any time prior to the Acceptance Time, the Company’s board of directors may make a Change of Company Recommendation in response to an Intervening Event if:
(i) the failure Company’s board of directors has determined in good faith, after consultation with its financial advisors and outside legal counsel, that, in light of such Intervening Event, failing to make a Change of Company Recommendation would reasonably be expected to be inconsistent with its fiduciary duties under Delaware Law;
(ii) the Company provides Parent a Notice of Change of Recommendation, which notice shall describe the Intervening Event (it being agreed that the delivery of the Notice of Change of Recommendation by the Company shall not, in and of itself, constitute a Change of Company Recommendation);
(iii) the Company has negotiated in good faith, and has directed any applicable LawCompany Representatives to negotiate in good faith, with Parent with respect to any changes to the terms of this Agreement proposed by Parent for at least four (4) Business Days following receipt by Parent of such Notice of Change of Recommendation; and
(viiv) taking into account any changes to the terms of this Agreement proposed by Parent to the Company shall have complied during such four (4) Business Day period, the Company’s board of directors has determined in good faith, after consultation with this Section 5.03 with respect its financial advisors and outside legal counsel, that failing to such Superior Proposal or Intervening Event (other than with respect to any breach that is de minimis).
(e) Notwithstanding any make a Change of Company Recommendation, unless this Agreement shall have been terminated in accordance Recommendation would continue to reasonably be expected to be inconsistent with Article VII, (x) this Agreement shall be submitted to the stockholders of the Company at the Company Stockholder Meeting for the purpose of obtaining the Company Stockholder Approval, and nothing contained herein shall be deemed to relieve the Company of such obligation and (y) the Company Board shall not submit to the stockholders of the Company any Competing Proposal, or, except as permitted herein, propose to do soits fiduciary duties under Delaware Law.
(f) Nothing contained in this Section 5.03 shall prohibit the Company Board Company’s board of directors from (i) disclosing to the stockholders of the Company a position contemplated by Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act or (ii) making any disclosure to the stockholders of the Company if the Company Board Company’s board of directors determines in good faith, after consultation with outside counsel, that the failure to make such disclosure would be inconsistent with its fiduciary duties under applicable Law to the stockholders of the Company (for the avoidance of doubt, it being agreed that the issuance by the Company or the Company Board Company’s board of directors of a “stop, look and listen” statement pending disclosure of its position, as contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act, or the announcement by the Company’s board of directors that it is in receipt of a Competing Proposal, shall not (in and of itself) constitute a Change of Company Recommendation); provided, however, that in any event, the Company Board shall and the Company’s board of directors may not make effect a Change of Company Recommendation except in accordance with as permitted by Section 5.03(d) or Section 5.03(e).
(g) Any violation of the restrictions set forth in this Section 5.03 by any Company Representative shall be deemed to be a breach of this Section 5.03 by the Company.
Appears in 1 contract
Sources: Merger Agreement (Landauer Inc)
Solicitation; Change of Company Recommendation. (a) Except as permitted by this Section 5.03, (i) from and after the date of this Agreementhereof, the Company shall, and shall cause the Company Subsidiaries and its affiliates to, and shall cause its and their respective officers (including members of the Company’s executive committee and management committee), directors, officers financial advisors, investment bankers and employees legal counsel to, and shall use reasonable best efforts to cause its and their other Representatives (such other Representatives that are employees of the Company or any of the Company Subsidiaries, other Company Representatives than directors, officers and members of the Company’s executive committee and management committee, the “Other Employees”) to, immediately cease any solicitations, discussions or negotiations with any persons that may be ongoing with respect to any actual or potential Competing Proposal and to have destroyed Proposal, promptly request the return or returned to the Company any destruction of all confidential information that has been provided to any person in connection with any Competing Proposal and will enforce previously furnished to, and, except as otherwise prohibited by applicable Lawwithin twenty-four (24) hours of the date hereof, will not waive any provisions ofterminate all physical and electronic data room access previously granted to, any confidentiality such person or standstill agreement (or any similar agreement) to which the Company or any Company Subsidiary is a party relating to any such Competing Proposal; provided, that the Company shall be permitted to grant a waiver of any standstill agreement, in response to a bona fide unsolicited request (and to permit such request) for such waiver from the counterparty thereto, to permit a Competing Proposal to be made its Representatives and (ii) from and after the date of this Agreement hereof until the earlier of the Effective Acceptance Time and the termination of this AgreementAgreement in accordance with its terms, the Company shall not, shall cause the Company Subsidiaries and its affiliates to not, and shall cause its and their respective officers (including members of the Company’s executive committee and management committee), directors, officers financial advisors, investment bankers and employees not to, legal counsel and shall use reasonable best efforts to cause any cause, its and their other Company Representative Representatives not to, directly or indirectly, (A) directly or indirectly through intermediaries initiate, solicit or knowingly encourage encourage, induce or facilitate (including by way the submission of furnishing non-public information) any inquiry, proposal, indication of interest Competing Proposal or offer which constitutes, any inquiry or proposal that would reasonably be expected to lead to, the submission of any to a Competing Proposal, (B) furnish any non-public information regarding the Company or any Company Subsidiary to any third person in connection with or in response to a Competing Proposal or any inquiry or proposal that would reasonably be expected to lead to a Competing Proposal, (C) initiatedirectly or indirectly through intermediaries conduct, solicit, knowingly encourage continue or facilitate, or otherwise participate in any discussions or negotiations withwith any third person, knowingly encourage or facilitate cooperate in any way with any effort bysuch third person, any third person with respect to any Competing ProposalProposal or any inquiry or proposal that would reasonably be expected to lead to a Competing Proposal (other than, solely in response to an unsolicited inquiry, to refer the inquiring person to the restrictions contained in this Section 5.03 and to limit its conversation or other communication regarding such Competing Proposal or inquiry or proposal that would reasonably be expected to lead to a Competing Proposal exclusively to such referral), (D) approve or approve, recommend, execute or propose enter into any letter of intent, acquisition agreement, merger agreement, joint venture agreement or similar Contract (in each case, whether written, oral, binding or non-binding) with respect to approve or recommend, a Competing Proposal or (other than an Acceptable Confidentiality Agreement in accordance with Section 5.03(b)), (E) agree approve any transaction under, or any third person becoming an “interested shareholder” under, Section 778 of the MBCA (except a transaction involving Parent, Sub or their respective affiliates), (F) amend or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any Company Subsidiary or (G) resolve to do any of the foregoing. The Company agrees that any violation of the restrictions set forth in this Section 5.03 by any of its affiliates, officers (including members of the Company’s executive committee and management committee), directors, financial advisors, investment bankers or legal counsel shall not, and shall cause the Company Subsidiaries not to, enter into any Contract with any person subsequent to the date be deemed a breach of this Agreement, and none of Section 5.03 by the Company or any Company Subsidiary is party to any Contract, in each case, that prohibits the Company from complying with its obligations under this Section 5.03Company.
(b) Notwithstanding anything to the contrary contained in this Agreement, but subject to the last sentence of this Section 5.03(b), if, at any time following the date of this Agreement hereof and prior to receipt of the Company Stockholder ApprovalAcceptance Time, (i) the Company has received a bona fide written Competing Proposal from a person that did not result from a breach of this Section 5.03 (other than and that did not result from action by any of the Other Employees that would have been a breach that is de minimis), of this Section 5.03 if such action had been taken by an officer or director of the Company or any of the Company Subsidiaries and (ii) the Company Board Company’s board of directors determines in good faith, after consultation with its independent financial advisors and outside legal counsel, that such Competing Proposal constitutes or could is reasonably be expected likely to lead to a Superior Proposal and (iii) that the Company provides prior written notice failure to Parent disclosing its receipt take action with respect to which would be inconsistent with the Company’s board of the Competing Proposal and including the name of the person making such Competing Proposal, the material terms and conditions of such Competing Proposal and a copy of any relevant Acquisition Agreement and any other relevant transaction documents, and disclosing its intent to furnish information or enter into discussions or negotiations with such person pursuant to this Section 5.03(b)directors’ fiduciary duties under applicable Law, then the Company, the Company Subsidiaries and their respective Representatives may (A) furnish information (including non-public information) with respect to the Company and the Company Subsidiaries to the person making such Competing Proposal and its representatives Representatives; provided, however, that the Company will not, will not permit the Company Subsidiaries to, and will not authorize or permit its Representatives or affiliates to, disclose any non-public information regarding the Company or any Company Subsidiary to such person without first entering into an Acceptable Confidentiality Agreement with such person; provided, further that the Company shall promptly (but in no event later than twenty-four (24) hours) deliver a copy to Parent of any Acceptable Confidentiality Agreement that it enters into, and (B) participate in discussions or negotiations with the person making such Competing Proposal and its representatives Representatives regarding such Competing Proposal; provided, however, that the . The Company (x) will not, will not permit the Company Subsidiaries to, and will not authorize the Company Representatives to, disclose any material non-public information regarding the Company to such person without first entering into an Acceptable Confidentiality Agreement with such person; (y) will keep Parent reasonably informed, on a prompt basis promptly (and in any event within twenty-four (24) hours thereafter), hours) advise Parent in writing (1) of the receipt of any Competing Proposal or a request for information relating to the Company or any Company Subsidiary that is reasonably likely to lead to, or that contemplates, a Competing Proposal, the material amendments or material developments with respect to terms and conditions of any such Competing Proposal (including an unredacted copy of such Competing Proposal or, where such Competing Proposal is not in writing, a description of the terms thereof) and the identity of the person making any such Competing Proposal and the Company shall keep Parent reasonably informed on a current basis of the material terms and status (including any change to the material terms thereof or any material changes theretochange to the status) of any Competing Proposal, and including by promptly (and in no event later than twenty-four (24) hours after receipt) providing to Parent copies of any revised proposals, indications of interest, draft agreements and material correspondence relating to such Competing Proposal or new Acquisition Agreement and any other relevant transaction documents(2) if it commences furnishing non-public information or commences discussions or negotiations as provided in this Section 5.03(b) and (z) will contemporaneously provide to Parent any material information concerning the Company or the any Company Subsidiaries to be Subsidiary provided or made available to such other person (or its representativesRepresentatives) that was not previously provided or made available to Parent. None The Company shall provide Parent with at least two (2) Business Days’ prior written notice of any meeting of the foregoing shall prohibit Company’s board of directors (or such lesser notice as is provided to members of the Company’s board of directors) at which the Company’s board of directors is reasonably expected to consider any Competing Proposal. The Company agrees that it and the Company or the Company Representatives from contacting Subsidiaries will not enter into any agreement with any person or group of persons that has made a Competing Proposal after subsequent to the date of this Agreement solely that prohibits the Company from providing any information to request clarification of the terms and conditions thereof so as to determine whether the Competing Proposal constitutes Parent in accordance with, or could reasonably be expected to lead to a Superior Proposalotherwise complying with, and any such actions shall not be a breach of this Section 5.03; provided, however, that the Company shall have provided to Parent the information in clause (iii) of the first sentence of this Section 5.03(b).
(c) Except as set forth in Section 5.03(d) or Section 5.03(e), neither the Company Board Company’s board of directors nor any committee thereof shall (i) adopt, authorize, approve or recommend, or publicly propose to adopt, authorize, approve or recommend, any Competing Proposal, (ii) withhold, withdraw, modifychange, qualify qualify, withhold or amendmodify or amend in a manner adverse to Parent, or publicly propose to withhold, withdraw, modifychange, qualify qualify, withhold or amend, in each case modify or amend in a manner adverse to Parent, the Company Recommendation or Recommendation, (iii) fail to include the Company Recommendation in the Proxy StatementSchedule 14D-9 when disseminated to the Company’s shareholders, (iiiiv) take any formal action or make any recommendation or public statement in connection with publicly recommend a tender offer or exchange offer (other than a recommendation against such offer or a temporary “stock, look and listen” communication by the Company Board pursuant to Rule 14d-9(f) of the Exchange Act, (iv) fail to publicly recommend against any Competing Proposal, or fail to publicly reaffirm the Company Board Recommendation, in each case within ten (10) days after the written request of Parent following a Competing Proposal that has been publicly announced (or such fewer number of days as remains prior to the Company Stockholder MeetingOffer), (v) resolvemake any public statement inconsistent with the Company Recommendation (provided that any public statement that includes only factual statements and that (i) reaffirms the Company Recommendation or (ii) states that the Company’s board of directors has not changed the Company Recommendation shall not be considered a statement inconsistent with the Company Recommendation), propose (vi) if a Competing Proposal shall have been publicly announced or agree disclosed, promptly following a written request from Parent to do so, fail to recommend against such Competing Proposal or fail to reaffirm the Company Recommendation, and in any event fail to do so on or prior to the tenth (10th) Business Day after the Competing Proposal shall have been publically announced or disclosed, but in any event at least one (1) Business Day prior to the then scheduled expiration date of the foregoing Offer (any action set forth in the foregoing clause clauses (i), ) through (ii), (iii), (iv) or (vvi), a “Change of Company Recommendation”) or (vivii) authorize, cause, approve, recommend or allow the Company or any of the Company Subsidiaries or any of their respective Representatives to execute or enter into any letter of intent, term sheet, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, joint venture agreement or other similar agreement relating to, or that is intended to result in, or would reasonably be expected to lead to, any Competing Proposal (other than an Acceptable Confidentiality Agreement) (each an “Acquisition Agreement”) or requiring requiring, or that would reasonably be expected to cause, the Company to abandon, terminate or fail to consummate the TransactionsTransactions (each, a “Company Acquisition Agreement”).
(d) Notwithstanding anything to the contrary contained in this Agreement, at any time prior to receipt of the Company Stockholder ApprovalAcceptance Time, the Company Board Company’s board of directors may make a Change of Company RecommendationRecommendation if and only if, solely in response prior to (1) a Superior Proposal or (2) an Intervening Event, iftaking such action:
(i) either (A) a bona fide, written, Competing Proposal (that did not result from a breach (other than a breach that is de minimis) of this Section 5.03 and that did not result from action by any of the Other Employees that would have been a breach of this Section 5.03 if such action had been taken by an officer or director of the Company or any of the Company Subsidiaries) is made to the Company by a third person and such Competing Proposal is not withdrawn or and (B) an Intervening Event has occurred and is continuing;
(ii) the Company Board Company’s board of directors determines in good faith, after consultation with its independent financial advisors and outside legal counsel, that (x) in the case of a Competing Proposal, such Competing Proposal constitutes a Superior Proposal and (y) the that failure to make a Change of Company Recommendation would be inconsistent with its the Company’s board of directors’ fiduciary duties under applicable Law;
(iiiii) the Company provides Parent at least three (3) Business Days’ prior written notice of the Company’s intention to make a Change of Company Recommendation (a “Notice of Change of Recommendation”), which notice Notice of Change of Recommendation shall (xA) state expressly that it has received a Superior Proposal or that an Intervening Event has occurredinclude the basis for such action, (yB) in the case of a Superior Proposal, identify the person making the Superior Proposal and (C) attach the most current draft of any proposed Company Acquisition Agreement with respect to such Superior Proposal and include the material terms and conditions of such Superior Proposal (and the Company shall contemporaneously provide a copy of any relevant Acquisition Agreement and any other relevant transaction documents to Parent), related financing commitments in the Company’s possession or under its control (or, in each case, if not provided in writing to the case Company, a written summary of an Intervening Eventthe terms thereof) (it being agreed that the delivery of the Notice of Change of Recommendation by the Company and, to the extent that such disclosure is required by applicable U.S. federal securities Law, the material facts and circumstances of such Intervening Event and (z) state expressly that the Company Board intends to make public announcement thereof shall not constitute a Change of Company Recommendation, and specifying, in reasonable detail, the reasons therefor);
(iviii) if requested by Parent, the Company has and its Representatives have negotiated in good faith with Parent, to the extent Parent wishes to negotiate, with respect to any changes to the terms of this Agreement proposed by Parent for at least three five (35) Business Days following receipt by Parent of such Notice of Change of Recommendation (it being understood and agreed that any amendment to any of the financial terms (including the form, amount and timing of payment of consideration) or any other material term of such Superior Proposal shall require a new Notice of Change of Recommendation and the Company and its Representatives shall be required to comply with the requirements of this Section 5.03(d) anew with respect to such new Notice of Change of Recommendation except that the five (5) Business Day period referred to above shall instead be an additional two (2) Business Day period from the date of such notice);; and
(viv) taking into account following the period referred to in Section 5.03(d)(iii), giving due consideration to any changes to the terms of this Agreement offered proposed by Parent in writingwriting to the Company, the Company Board Company’s board of directors has determined in good faith, after consultation with its independent financial advisors and outside legal counsel, that (x) in the case of a Competing Proposal, such Competing Proposal would nevertheless continue to constitute a Superior Proposal if such changes offered to which Parent has committed to in writing by Parent were to be given effect and that failure to make a Change of Company Recommendation would be inconsistent with the Company’s board of directors’ fiduciary duties under applicable Law.
(ye) Notwithstanding anything to the contrary contained in this Agreement, other than in connection with a Competing Proposal, the Company’s board of directors may, at any time prior to, but not after, the Acceptance Time, make a Change of Company Recommendation in response to an Intervening Event if, prior to taking such action, the Company’s board of directors has determined in good faith, after consultation with its independent financial advisors and outside legal counsel, that the failure to take such action would be inconsistent with the Company’s board of directors’ fiduciary duties under applicable Law, provided, however, that, prior to taking such action, (i) the Company has given Parent at least five (5) Business Days’ prior written notice of its intention to take such action, and specifying in reasonable detail the Intervening Event and the potential reasons that the Company’s board of directors is proposing to effect a Change of Company Recommendation, (ii) the Company has negotiated, and caused its Representatives to negotiate, in good faith with Parent during such five (5) Business Day period, to the extent Parent wishes to negotiate, to enable Parent to propose revisions to the terms of this Agreement such that it would cause the Company’s board of directors to not make such Change of Company Recommendation, and (iii) following the end of such five (5) Business Days period, the Company’s board of directors shall have considered in good faith any revisions to the terms of this Agreement to which Parent has committed in writing, and shall have determined, after consultation with its independent financial advisor and outside legal counsel (assuming the revisions proposed by Parent in writing were to be given effect), that the Intervening Event is continuing and that the failure to make a Change of Company Recommendation would be inconsistent with its the Company’s board of directors’ fiduciary duties under applicable Law; and
(vi) the Company shall have complied with this Section 5.03 with respect to such Superior Proposal or Intervening Event (other than with respect to any breach that is de minimis).
(e) Notwithstanding any Change of Company Recommendation, unless this Agreement shall have been terminated in accordance with Article VII, (x) this Agreement shall be submitted to the stockholders of the Company at the Company Stockholder Meeting for the purpose of obtaining the Company Stockholder Approval, and nothing contained herein shall be deemed to relieve the Company of such obligation and (y) the Company Board shall not submit to the stockholders of the Company any Competing Proposal, or, except as permitted herein, propose to do so.
(f) Nothing contained in this Section 5.03 shall prohibit the Company Board or the Company’s board of directors from complying with its disclosure obligations under U.S. federal or state Law with regard to a Competing Proposal, including (i) taking and disclosing to the stockholders shareholders of the Company a position contemplated by Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act or (ii) making any disclosure “stop, look and listen” communication to the stockholders shareholders of the Company if pursuant to Rule 14d-9(f) under the Company Board Exchange Act if, in any such case, the Company’s board of directors determines in good faith, after consultation with outside legal counsel, that the failure to make such disclosure would be inconsistent with its fiduciary duties under applicable Law to the stockholders of the Company (for the avoidance of doubt, it being agreed that the issuance by the Company or the Company Board of a “stop, look and listen” statement pending disclosure of its position, as contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act, shall not constitute a Change of Company Recommendation); provided, however, that in any event, the Company Board shall not make a Change of Company Recommendation except in accordance with Section 5.03(d).
(g) Any violation of the restrictions set forth in this Section 5.03 by any Company Representative shall be deemed to be a breach of this Section 5.03 by the Company.failur
Appears in 1 contract
Solicitation; Change of Company Recommendation. (a) Except as expressly permitted by this Section 5.03, (i) from and after the date execution of this Agreement, (i) the Company shall, and shall cause the Company Subsidiaries and its and their respective the Company’s directors, officers and employees to, and shall use reasonable best efforts to cause the other Representatives of the Company Representatives to, immediately (A) promptly cease any solicitations, discussions discussions, communications or negotiations with any persons person and its Representatives that may be ongoing with respect to any Competing Proposal made by or on behalf of such person and to have destroyed or returned to the Company any confidential (B) (1) promptly cease furnishing non-public information that has been provided to any person in connection with any Competing Proposal and will enforce and, except as otherwise prohibited by applicable Law, will not waive any provisions of, any confidentiality or standstill agreement (or any similar agreement) to which regarding the Company or any Company Subsidiary is a party relating to such person and its Representatives with respect to any Competing Proposal to the person that made such Competing Proposal; providedProposal and its Representatives, (2) promptly request the return or destruction of all such non-public information that was previously furnished or made available to such person (and its Representatives) by or on behalf of the Company shall be permitted with respect to grant a waiver of any standstill agreement, in response to a bona fide unsolicited request (and to permit such request) for such waiver from the counterparty thereto, to permit a Competing Proposal made by or on behalf such person and (3) promptly terminate all physical and electronic data room access previously granted to be made such person and its Representatives, and (ii) from and after the date of this Agreement until the earlier of the Effective Time and the termination of this AgreementAgreement in accordance with its terms, the Company shall not, shall cause the Company Subsidiaries and its and their respective the Company’s directors, officers and employees not to, and shall use reasonable best efforts to cause any other Representative of the Company Representative not to, directly or indirectly, (A) initiate, solicit or solicit, knowingly encourage or knowingly facilitate (including by way of furnishing non-public information) any inquiry, proposal, indication of interest or offer which constitutes, or would reasonably be expected to lead to, the submission of any Competing Proposal, (B) furnish any non-public information regarding the Company or any Company Subsidiary Subsidiary, or afford to any person access to the non-public business, properties, assets, books or records of the Company or any Company Subsidiary, to any third person party that the Company knows is seeking to make, or has made, a Competing Proposal in connection with or in response to a such Competing Proposal, (C) initiateenter into, solicitengage in, knowingly encourage or facilitate, continue or participate in any discussions or negotiations with any third party with respect to any Competing Proposal made by such third party, or otherwise knowingly cooperate with, or knowingly assist, participate in, facilitate or knowingly encourage or facilitate in any way any effort by, any third person party that the Company knows is seeking to make, or has made, a Competing Proposal in connection with respect to any such Competing Proposal, (D) approve approve, endorse, recommend or recommendenter into, or publicly propose to approve approve, endorse, recommend or recommendenter into, a any letter of intent, memorandum of understanding, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other similar definitive agreement relating to any Competing Proposal or requiring the Company to abandon, terminate or fail to consummate the Transactions (an “Alternative Acquisition Agreement”) or (E) agree agree, propose or resolve to do take, or take, any of the foregoing. The Company shall notactions prohibited by the foregoing clauses (A) through (D); provided that, and shall cause the Company Subsidiaries not to, enter into any Contract with any person subsequent notwithstanding anything to the date contrary in this Section 5.03(a), from and after the execution of this Agreement, and none of if the Company receives any inquiry, expression of interest, proposal or offer that constitutes or would reasonably be expected to lead to a Competing Proposal from any Company Subsidiary is party to any Contractthird party, in each case, that prohibits the Company may inform such third person that the Company is contractually prohibited from complying with its obligations under this Section 5.03engaging in discussions with, or otherwise responding to, such third party in response thereto.
(b) Notwithstanding anything to the contrary contained in this Agreement, Agreement but subject to the last sentence of this Section 5.03(b), if, at any time following the date execution of this Agreement and prior to receipt the earlier of the Company obtaining the Company Stockholder Approval or the termination of this Agreement (and in no event after the Company obtains the Company Stockholder Approval), (i) the Company has received a bona fide written Competing Proposal from a person after the date of this Agreement that did not result from a breach of this Section 5.03 5.03(a) (other than a breach that is de minimisan immaterial and unintentional breach), and (ii) the Company Board (or any committee thereof) determines in good faith, after consultation with its outside financial advisors and outside legal counsel, that such Competing Proposal constitutes or could would reasonably be expected to lead to a Superior Proposal and (iii) the failure to take any of the following actions would be reasonably likely to be inconsistent with the Company provides prior written notice to Parent disclosing its receipt of Board’s fiduciary duties under applicable Law, then the Competing Proposal and including the name of the person making such Competing ProposalCompany, the material terms Company Subsidiaries and conditions the Company’s Representatives may, subject to compliance with the applicable provisions of this Section 5.03 with respect to such Competing Proposal and a copy of any relevant Acquisition Agreement and any (other relevant transaction documents, and disclosing its intent than immaterial or unintentional failures to furnish information or enter into discussions or negotiations with such person pursuant to this Section 5.03(bcomply), then the Company may (A) furnish information information, including with respect to the Company and the Company Subsidiaries Subsidiaries, to the person making such Competing Proposal and its representatives Representatives and (B) participate in discussions or negotiations with the person making such Competing Proposal and its representatives regarding Representatives in connection with such Competing Proposal; provided, however, that the Company (x) will not, will shall not permit the Company Subsidiaries to, and will not authorize the Company Representatives to, disclose any material non-public information regarding the Company or the Company Subsidiaries pursuant to such person the foregoing without first entering into an Acceptable Confidentiality Agreement with such person; person if such person is not already party to an Acceptable Confidentiality Agreement with the Company. The Company shall provide Parent and Sub any non-public information that is provided to any such person in connection with such Competing Proposal that was not previously made available (ywhether prior to or after the execution of this Agreement) will keep to Parent or Sub reasonably informedpromptly following the time it is provided to such person or, on a prompt basis with respect to such information conveyed verbally, promptly (and and, in any event event, within forty-eight (48) hours thereafter).
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours thereafter), hours) notify Parent of the Company’s (or its Representatives’) receipt of (i) any material amendments Competing Proposal or material developments (ii) any request for non-public information in connection with respect to such any Competing Proposal (including any material changes thereto, and including by providing copies of any revised or new Acquisition Agreement and any other relevant transaction documents) and (z) will provide to Parent any material information concerning the Company or the Company Subsidiaries to be provided or made available to such other person (or its representatives) that was not previously provided or made available to Parent. None of the foregoing shall prohibit the Company or the Company Representatives from contacting any person or group of persons that has made a Competing Proposal after the date of this Agreement solely to request clarification of the terms and conditions thereof so as to determine whether the Competing Proposal constitutes or could would reasonably be expected to lead to a Superior Competing Proposal), in each case providing, in connection with such notice, (i) the identity of such third party providing such Competing Proposal or requesting such non-public information and any (ii) (A) a copy of such actions shall Competing Proposal or request, if in writing and (B) a written summary of the material terms of such Competing Proposal or request, if oral (or not be a breach of this Section 5.03otherwise made in writing); provided, however, that the Company may redact the identity, identifying information or other information that the Company is specifically and expressly prohibited from disclosing pursuant to an existing confidentiality agreement between the Company and such third party. The Company shall have provided to thereafter shall keep Parent the information in clause (iii) reasonably informed, on a current basis, of the first sentence status and terms of this Section 5.03(bany such Competing Proposal and the status of any such discussions or negotiations related thereto and promptly provide copies of all draft Alternative Acquisition Agreements with respect to such Competing Proposal (subject to any redactions described in the preceding sentence).
(cd) Except as set forth in Section 5.03(d5.03(e) or Section 5.03(e5.03(f), from the date hereof until the earlier of the Effective Time and the termination of this Agreement in accordance with its terms, neither the Company Board nor any committee thereof shall will (i) adopt, authorize, approve approve, recommend or recommend, otherwise declare advisable (or publicly propose or resolve to adopt, authorize, approve approve, recommend or recommend, otherwise declare advisable) any Competing ProposalProposal or Alternative Acquisition Agreement, (ii) withhold, withdraw, modify, amend, qualify or amend, change (or publicly propose or resolve to withhold, withdraw, modify, amend, qualify or amendchange), in each case in a manner adverse to Parent, the Company Recommendation or Recommendation, (iii) fail to include the Company Recommendation in the Proxy Statement, (iiiiv) approve or recommend, or publicly propose that the Company or any of its Subsidiaries enter into, an Alternative Acquisition Agreement, (v) fail to recommend against or otherwise indicate that the Company Board is unable to take any formal action or make any recommendation or public statement in connection a position with respect to a tender offer or exchange offer other than a recommendation against such offer or a temporary “stock, look and listen” communication by for any Equity Securities of the Company Board pursuant to Rule 14d-9(f) of the Exchange Act, (iv) fail to publicly recommend against any that constitutes a Competing Proposal, or fail to publicly reaffirm the Company Board Recommendation, in each case Proposal within ten (10) days Business Days after the written request commencement of Parent following a Competing Proposal that has been publicly announced such tender offer or exchange offer (it being understood and agreed that, if and solely to the extent the Company Board (or such fewer number of days as remains prior any committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure to do so would be reasonably likely to be inconsistent with the Company Stockholder MeetingBoard’s fiduciary duties under applicable Law, the Company may, in connection with such recommendation against, state that it is continuing to negotiate with the person that made such Competing Proposal, and such statement shall not be considered a Change of Company Recommendation), (vi) following public announcement of a Competing Proposal, fail to reaffirm the Company Recommendation within four (4) Business Days of receipt of a written request from Parent to do so if such Competing Proposal remains outstanding and not publicly rejected by the Company and is not the type of Competing Proposal described in clause (v) resolve(provided that Parent may only request two (2) such reaffirmations with respect to any Competing Proposal, propose unless the terms of such Competing Proposal have been modified in any material respect (it being understood that any change in the consideration thereof shall be deemed such a modification in any material respect), in which case such Competing Proposal shall be deemed a new Competing Proposal), (vii) agree or agree announce an intention to do any of the foregoing (any action set forth in the foregoing clause clauses (i), ) through (ii), (iii), (iv) or (vvi), a “Change of Company Recommendation”) or (viviii) cause or allow the Company or any of the Company Subsidiaries to enter into any letter of intent, term sheet, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement or other similar agreement relating to, or that is intended to result in, or would reasonably be expected to lead to, any Competing Proposal (other than an Acceptable Confidentiality Agreement) (each an “Alternative Acquisition Agreement”) or requiring the Company to abandon, terminate or fail to consummate the Transactions.
(de) Notwithstanding anything to the contrary contained in this Agreement, at any time prior to receipt of the Company Stockholder Approval, the Company Board (or any committee thereof) may make a Change of Company RecommendationRecommendation (and, solely if deemed advisable by the Company Board (or any committee thereof), terminate this Agreement, in response accordance with Section 7.01(d), in order to (1) cause the Company to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal or (2Proposal) an Intervening Event, if:
(i) either (A) a Competing Proposal that did not result from a breach of Section 5.03(a) (other than a breach that is de minimisan immaterial and unintentional breach) of this Section 5.03 is made to the Company by a third person party and such Competing Proposal is not withdrawn or (B) an Intervening Event has occurred and is continuing;
(ii) the Company Board (or any committee thereof) determines in good faith, after consultation with its outside financial advisors and outside legal counsel, that (x) in the case of a Competing Proposal, such Competing Proposal constitutes a Superior Proposal and (y) the that failure to make a Change of Company Recommendation would be reasonably likely to be inconsistent with its the Company Board’s fiduciary duties under applicable Law;
(iiiii) the Company provides Parent at least three (3) Business Days’ prior written notice of the Company’s intention to make a Change of Company Recommendation (a “Notice of Superior Proposal Change of Recommendation”), which notice shall include (xA) state expressly that it the Company has received a Superior written Competing Proposal or that an Intervening Event has occurred, (y) in the case of constitutes a Superior Proposal, identify the person making such Superior Proposal and include (B) the material terms and conditions of the Competing Proposal (including the consideration offered therein and the identity of the person, persons or group making such Competing Proposal) and (C) (1) an unredacted copy of the Alternative Acquisition Agreement, (2) unredacted copies of all other agreements to be entered into between the Company and the person making such Competing Proposal in connection with such Competing Proposal and (3) any financing arrangements to finance the Competing Proposal if the Company Board (or any committee thereof) determined such financing arrangements were material to its decision that the Competing Proposal was superior to the Merger (subject to redactions to the same extent as contemplated by Section 4.07) (it being agreed that neither the delivery of the Notice of Superior Proposal (and Change of Recommendation by the Company shall contemporaneously provide a copy of any relevant Acquisition Agreement and any other relevant transaction documents to Parent), orCompany, in and of itself, nor the case of an Intervening Event, the material facts and circumstances of such Intervening Event and (z) state expressly public announcement that the Company Board intends (or any committee thereof) has provided such notice, if and solely to make the extent the Company determines in good faith, in consultation with its outside legal counsel, that the failure to do so would be reasonably likely to be inconsistent with applicable Law, shall constitute a Change of Company Recommendation, and specifying, in reasonable detail, the reasons therefor);
(iviii) prior to making such Change of Company Recommendation in accordance with Section 5.03(e) or terminating this Agreement in accordance with Section 7.01(d) in order to enter into the Alternative Acquisition Agreement, as applicable, if requested by Parent, the Company has negotiated negotiated, and directed the applicable Representatives of the Company to negotiate, in good faith with Parent during the three (3) Business Days (as may be extended by two (2) Business Days solely as required by clause (iv) below) following the date of such Notice of Superior Proposal Change of Recommendation with respect to any changes to the terms of this Agreement proposed by Parent for at least three (3) Business Days following receipt by Parent of such Notice of Change of Recommendation (it being understood and agreed that any amendment to any material term of such Superior Proposal shall require a new Notice of Change of Recommendation and an additional two (2) Business Day period from the date of such notice);in response thereto; and
(viv) taking into account any changes to the terms of this Agreement offered by Parent pursuant to clause (iii) above and any other information provided by Parent in writingresponse to such Notice of Superior Proposal Change of Recommendation, the Company Board (or any committee thereof) has determined in good faith, after consultation with its outside financial advisors and outside legal counsel, that (x) in the case of a Competing Proposal, such Competing Proposal would continue to constitute a Superior Proposal if and that the failure to make such Change of Company Recommendation or to terminate this Agreement in accordance with Section 7.01(d), as applicable, would be reasonably likely to be inconsistent with the fiduciary duties of the Company Board under applicable Law; provided that any amendment to the financial terms or any other material term or condition of such Competing Proposal (whether or not in response to any changes offered in writing proposed by Parent were pursuant to be given effect clause (iii) above) shall require a new Notice of Superior Proposal Change of Recommendation and an additional two (2) Business Day-notice period from the date of such notice during which the terms of clause (iii) above and this clause (iv) shall apply mutatis mutandis (other than the number of Business Days).
(f) Notwithstanding anything to the contrary contained in this Agreement, at any time prior to receipt of the Company Stockholder Approval, the Company Board (or any committee thereof) may make a Change of Company Recommendation if:
(i) an Intervening Event occurs;
(ii) the Company provides Parent prior written notice of the Company’s intention to make a Change of Company Recommendation (a “Notice of Intervening Event Change of Recommendation”), which notice shall (A) set forth in reasonable detail information describing the Intervening Event and (yB) state expressly that, subject to clause (iii) and clause (iv) below, the Company Board has determined that failure to make a Change of Company Recommendation in connection with such Intervening Event would be inconsistent with its fiduciary duties under applicable Law; and
(vi) the Company shall have complied with this Section 5.03 with respect reasonably likely to such Superior Proposal or Intervening Event (other than with respect to any breach that is de minimis).
(e) Notwithstanding any Change of Company Recommendation, unless this Agreement shall have been terminated in accordance with Article VII, (x) this Agreement shall be submitted to the stockholders of the Company at the Company Stockholder Meeting for the purpose of obtaining the Company Stockholder Approval, and nothing contained herein shall be deemed to relieve the Company of such obligation and (y) the Company Board shall not submit to the stockholders of the Company any Competing Proposal, or, except as permitted herein, propose to do so.
(f) Nothing contained in this Section 5.03 shall prohibit the Company Board from (i) disclosing to the stockholders of the Company a position contemplated by Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act or (ii) making any disclosure to the stockholders of the Company if the Company Board determines in good faith, after consultation with outside counsel, that the failure to make such disclosure would be inconsistent with its fiduciary duties under applicable Law to the stockholders of the Company (for the avoidance of doubt, it being agreed that neither the issuance delivery of the Notice of Intervening Event Change of Recommendation by the Company or nor any public announcement that the Company Board is considering making a Change of a “stopCompany Recommendation shall, look in and listen” statement pending disclosure of its positionitself, as contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act, shall not constitute a Change of Company Recommendation); provided, however, that in any event, the Company Board shall not make a ;
(iii) prior to making such Change of Company Recommendation except in accordance with Section 5.03(d5.03(f).
(g) Any violation , if requested by Parent, the Company has negotiated, and directed the applicable Representatives of the restrictions set forth Company to negotiate, in this Section 5.03 by good faith with Parent during the three (3) Business Days following the date of such Notice of Intervening Event Change of Recommendation (the “Intervening Event Change of Recommendation Notice Period”), with respect to any Company Representative shall be deemed changes to be a breach the terms of this Section 5.03 by the Company.Agreement proposed
Appears in 1 contract
Sources: Merger Agreement (Cubic Corp /De/)
Solicitation; Change of Company Recommendation. (a) Except as expressly permitted by this Section 5.03, (i) from and after the date of this Agreement, the Company shall, shall cause the Company Subsidiaries and its and their respective directors, officers and employees to, and shall use reasonable best efforts to cause the other Company Representatives to, immediately cease any solicitations, discussions or negotiations with any persons that may be ongoing with respect to any Competing Proposal and to have destroyed or returned to the Company any confidential information that has been provided to any person in connection with any Competing Proposal and will enforce and, except as otherwise prohibited by applicable Law, will not waive any provisions of, any confidentiality or standstill agreement (or any similar agreement) to which the Company or any Company Subsidiary is a party relating to any such Competing Proposal; provided, that the Company shall be permitted to grant a waiver of any standstill agreement, in response to a bona fide unsolicited request (and to permit such request) for such waiver from the counterparty thereto, to permit a Competing Proposal to be made and (ii) from and after the date of this Agreement until the earlier of the Effective Time and the termination of this AgreementAgreement in accordance with Article VII, the Company shall notshall, and shall cause the Company Subsidiaries to, and its the Company and the Company Subsidiaries shall use their respective reasonable best efforts to cause their respective directors, officers officers, investment bankers, counsel and employees not similarly authorized representatives (collectively, the “Company Representatives”) to, (i) immediately (A) cease any direct or indirect solicitations, discussions or negotiations with any persons that may be ongoing with respect to any Competing Proposal or any potential Competing Proposal, (B) terminate access to any physical or electronic data rooms relating to any potential Competing Proposal and shall (C) use their respective reasonable best efforts to cause any person and its representatives that has received confidential information concerning the Company or any of the Company Subsidiaries in connection with a potential Competing Proposal to promptly return or destroy the confidential information furnished thereto by or on behalf of the Company or any Company Subsidiary and to destroy all analyses and other Company Representative material prepared by or on behalf of such person or its representatives that contain, reflect or analyze such information, in each case, in accordance with the applicable confidentiality agreement and (ii) not to, directly or indirectly, indirectly (A) initiate, solicit or knowingly encourage or facilitate (including by way of furnishing non-public information) any inquiry, proposal, indication of interest offer or offer which constitutesproposal with respect to, or would reasonably be expected to lead to, the submission of or announcement of, any Competing Proposal, (B) furnish any non-public information regarding the Company or any Company Subsidiary to any third person in connection with or in response to a Competing Proposal, Proposal or a potential Competing Proposal or (C) initiate, solicit, knowingly encourage or facilitate, or participate in any discussions or negotiations with, knowingly encourage or facilitate in with any way any effort by, any third person with respect to any Competing Proposal or a potential Competing Proposal. In addition, from the date of this Agreement until the earlier of the Effective Time and the termination of this Agreement in accordance with Article VII, (Di) approve neither the Company’s board of directors nor any committee thereof shall (except with respect to Parent and its affiliates and their respective representatives) (x) grant any waiver, amendment or recommendrelease under any Takeover Statute or (y) grant any waiver, amendment or propose release under any confidentiality, standstill or similar agreement (or terminate or fail to approve or recommend, enforce such agreement) except solely to the extent necessary to allow the other party to such agreement to make a confidential Competing Proposal or to the Company’s board of directors and (Eii) agree to do any of the foregoing. The Company shall not, and shall cause the Company Subsidiaries not to, enter into reimburse or agree to reimburse the expenses of any Contract other person (other than the Company’s Representatives) in connection with any person subsequent to the date of this Agreement, and none of the Company a Competing Proposal or any Company Subsidiary is party inquiry, discussion, offer or request that could reasonably be expected to any Contract, in each case, that prohibits the Company from complying with its obligations under this Section 5.03lead to a Competing Proposal.
(b) Notwithstanding anything to the contrary contained in this Agreement, but subject to the last sentence of this Section 5.03(b), if, at any time following the date of this Agreement and prior to the receipt of the Company Requisite Stockholder Approval, (i) the Company has received a bona fide written Competing Proposal from a person that did not result from a material breach of this Section 5.03 (other than a breach that is de minimis)by the Company or any of the Company Subsidiaries or Company Representatives, (ii) the Company Board Company’s board of directors determines in good faith, after consultation with its the Company’s outside financial advisors and outside legal counsel, that such Competing Proposal constitutes or could reasonably be expected to lead to a Superior Proposal and (iii) the Company provides prior written notice Company’s board of directors determines in good faith, after consultation with the Company’s outside legal counsel, that the failure to Parent disclosing its receipt take the actions described in clauses (A) and (B) below would be inconsistent with the board of directors’ fiduciary duties to the stockholders of the Competing Proposal and including the name of the person making such Competing Proposal, the material terms and conditions of such Competing Proposal and a copy of any relevant Acquisition Agreement and any other relevant transaction documents, and disclosing its intent to furnish information or enter into discussions or negotiations with such person pursuant to this Section 5.03(b)Company under applicable Law, then the Company may (A) furnish information with respect to the Company and the Company Subsidiaries to the person making such Competing Proposal and its representatives and (B) participate in discussions or negotiations with the person making such Competing Proposal and its representatives regarding such Competing Proposal; provided, however, that the Company (x) will not, will not permit cause the Company Subsidiaries not to, and will not authorize the Company and the Company Subsidiaries will use their respective reasonable best efforts to cause their respective Company Representatives not to, disclose any material non-public information regarding the Company or any of the Company Subsidiaries to such person without first entering into an Acceptable Confidentiality Agreement with such person; (y) will keep Parent reasonably informed, on a prompt basis promptly (and in any event within twenty-four (2424 hours) hours thereafter), advise Parent of the receipt of any material amendments Competing Proposal that constitutes or material developments with respect could reasonably be expected to lead to a Superior Proposal (and shall disclose to Parent the identity of any person making such Competing Proposal (including any material changes thereto, and including by providing copies of any revised or new Acquisition Agreement the terms thereof and any the other relevant transaction documentsinformation required to be provided to Parent pursuant to Section 5.03(c)) and (z) will as promptly as practicable (and in any event within 24 hours thereafter) provide to Parent any material written information concerning the Company or the Company Subsidiaries to be provided or made available to such other person (or its representatives), and any material information concerning the Company or the Company Subsidiaries provided to such other person (or its representatives) orally, that was not previously provided or made available to Parent. None So long as the Company, the Company Subsidiaries and the Company Representatives have otherwise complied with this Section 5.03, none of the foregoing shall prohibit the Company or the Company Representatives from contacting any person or group of persons that has made a Competing Proposal after the date of this Agreement solely to request the clarification of the terms and conditions thereof so as to determine whether the Competing Proposal constitutes or could reasonably be expected to lead to a Superior Proposal, and, if the Company, the Company Subsidiaries and the Company Representatives have otherwise complied with this Section 5.03, any such actions shall not be a breach of this Section 5.03; provided, however, that the Company shall have provided to Parent the information in clause (iii) of the first sentence of this Section 5.03(b).
(c) Except From and after the date of this Agreement until the earlier of the Effective Time and the termination of this Agreement in accordance with Article VII, the Company shall promptly (and in any event within 24 hours) notify Parent of the receipt of any Competing Proposal or any inquiry, proposal, offer or request for information with respect to, or that could reasonably be expected to result in, a Competing Proposal, or any discussions or negotiations sought to be initiated or continued with the Company, any of the Company Subsidiaries or any Company Representatives concerning a Competing Proposal, indicating, in each case, the identity of the person or group of persons making such Competing Proposal, inquiry, offer, proposal or request for information and a copy of any such Competing Proposal (including, if applicable, copies of any documentation constituting the Competing Proposal, including proposed agreements and financing commitments, and any amendments or modifications thereto) or a written summary of the material terms and conditions of such Competing Proposal not made in writing, and thereafter shall keep Parent informed in reasonable detail, on a prompt basis (and in any event within 24 hours), of any material developments or modifications to the terms of such Competing Proposal, inquiry, offer, proposal or request (including, if applicable, copies of any documentation constituting the Competing Proposal, including proposed agreements and financing commitments, and any amendments or modifications thereto) and the status of any such inquiry, proposal, offer, request for information, discussions or negotiations. Notwithstanding anything in this Agreement to the contrary, the Company hereby agrees that it shall not, and shall not permit any Company Subsidiary to, enter into any agreement that prohibits or restricts it from providing to Parent the information contemplated by this Section 5.03(c) or otherwise complying with the other provisions of this Section 5.03.
(d) Notwithstanding anything in this Agreement to the contrary, except as set forth in Section 5.03(d5.03(e) or Section 5.03(e5.03(f), neither the Company Board Company’s board of directors nor any committee thereof shall (i) adopt, authorize, approve or recommendrecommend any Competing Proposal or potential Competing Proposal, or or, in each case, publicly propose to adopt, authorize, approve or recommend, any Competing Proposaldo so, (ii) withhold, withdraw, modify, qualify modify or amend, or publicly propose to withhold, withdraw, modify, qualify or amend, in each case in a manner adverse to Parent, the Company Recommendation Recommendation, or in each case publicly propose to do so, or fail to include the Company Recommendation in the Proxy Statement, (iii) take any formal action or make any recommendation or public statement in connection with a tender offer or exchange offer other than a recommendation against such offer or a temporary “stock, look and listen” communication by the Company Board pursuant to Rule 14d-9(f) of the Exchange Act, (iv) fail to publicly recommend against any Competing Proposal, or fail to publicly reaffirm the Company Board Recommendation, in each case within ten (10) days after the written request of Parent following a Competing Proposal that has been publicly announced (or such fewer number of days as remains prior to the Company Stockholder Meeting), (v) resolve, propose or agree to do any of the foregoing Statement (any action set forth in the foregoing clause clauses (i), (ii), (iii), (iv) or (vii), a “Change of Company Recommendation”) or (viiii) authorize, cause or allow the Company or any of the Company Subsidiaries to enter into any letter of intent, term sheet, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement or other similar agreement relating to, to any Competing Proposal or that is intended to result in, or would reasonably be expected to lead to, any potential Competing Proposal (other than an Acceptable Confidentiality Agreement) (each an “Acquisition Agreement”) or requiring the Company to abandon, terminate or fail to consummate the Transactions.
(de) Notwithstanding anything to the contrary contained in this Agreement, at any time prior to the receipt of the Company Requisite Stockholder Approval, the Company Board Company’s board of directors may make a Change of Company RecommendationRecommendation with respect to a Competing Proposal if, solely in response to (1) a Superior Proposal or (2) an Intervening Event, and only if:
(i) either (A) a such Competing Proposal (that did not result from a material breach (other than a breach that is de minimis) of this Section 5.03 by the Company or any of the Company Subsidiaries or Company Representatives) is made to the Company by a third person and such Competing Proposal is not withdrawn or and (B) an Intervening Event has occurred and is continuing;
(ii) the Company Board Company’s board of directors determines in good faith, after consultation with its the Company’s outside financial advisors and outside legal counsel, that (x) in the case of a Competing Proposal, such Competing Proposal constitutes a Superior Proposal and (y) the failure to make a Change of Company Recommendation would be inconsistent with its fiduciary duties under applicable LawProposal;
(iiiii) the Company provides Parent at least three (3) Business Days’ prior written notice of the Company’s intention to make a Change of Company Recommendation or terminate this Agreement pursuant to Section 7.01(f) (a “Notice of Change of Recommendation”), which notice shall (x) state expressly that it has received a Superior Proposal or that an Intervening Event has occurred, (y) in the case of a Superior Proposal, identify the person making such Superior Proposal and include copies of the material terms and conditions of documentation constituting such Superior Proposal Proposal, including proposed agreements and financing commitments, and any amendments or modifications thereto (and it being agreed that the delivery of the Notice of Change of Recommendation by the Company shall contemporaneously provide a copy of any relevant Acquisition Agreement and any other relevant transaction documents to Parent), or, in the case of an Intervening Event, the material facts and circumstances of such Intervening Event and (z) state expressly that the Company Board intends to make not constitute a Change of Company Recommendation, and specifying, in reasonable detail, the reasons therefor);
(iviii) if requested by Parent, the Company has negotiated negotiated, and has used its reasonable best efforts to cause the Company Representatives to negotiate, in good faith with Parent and its affiliates and their respective representatives with respect to any changes to the terms and conditions of this Agreement proposed by Parent and any other agreements relating to the Transactions for at least three five (35) Business Days following receipt by Parent of such Notice of Change of Recommendation (it being understood and agreed that any amendment or modification to any material term or condition (including any financial term or any termination fee, expense reimbursement provision or any term or condition relating to conditionality or the timing of consummation) of such Superior Proposal shall require the Company to deliver a new Notice of Change of Recommendation to Parent with respect to such amendment or modification and an additional two (2) Business Day period from the date of such noticenotice during which the Company shall comply again with this Section 5.03(e)(i)-(iii);); and
(viv) taking into account any changes to the terms and conditions of this Agreement offered and any other agreements relating to the Transactions proposed by Parent in writingto the Company, the Company Board Company’s board of directors has determined in good faith, after consultation with its outside financial advisors and outside legal counsel, that (x) in the case of a Competing Proposal, such Competing Proposal would continue to constitute a Superior Proposal if such changes offered in writing by Parent were to be given effect.
(f) Other than in connection with a Competing Proposal (which shall be subject to Section 5.03(e) and shall not be subject to this Section 5.03(f)), nothing in this Agreement shall prohibit or restrict the Company’s board of directors from, prior to the receipt of the Requisite Stockholder Approval, withholding, modifying or amending, in a manner adverse to Parent, the Company Recommendation if the Company’s board of directors determines in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, that the failure of the Company’s board of directors to effect a Change of Company Recommendation would be reasonably likely to be inconsistent with its fiduciary duties under applicable Law; provided, that, (A) the Company shall give Parent advance written notice of its intention to take such action, which notice shall specify in reasonable detail the facts and (y) circumstances underlying the Company’s board of directors determination that the failure to make effect a Change of Company Recommendation would be inconsistent with its fiduciary duties under applicable Law (it being agreed that the delivery of such notice by the Company shall not constitute a Change of Company Recommendation), (B) the Company shall negotiate and shall use its reasonable best efforts to cause the Company Representatives to negotiate, in good faith with Parent and its affiliates and their respective representatives with respect to any changes to the terms and conditions of this Agreement and any other agreements relating to the Transactions for at least five (5) Business Days following receipt by Parent of such notice (it being understood and agreed that following receipt by Parent of such notice but prior to the determination by the Company’s board of directors to effect a Change of Company Recommendation any material change relating to the facts and circumstances underlying such determination shall require the Company to deliver a new notice pursuant to this Section 5.03(f) and an additional two (2) Business Day period from the date of such notice during which the Company shall comply again with this Section 5.03(f)(A)-(B)) and (C) after taking into account any changes to the terms and conditions of this Agreement and any other agreements relating to the Transactions proposed by Parent, the Company’s board of directors has determined in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, that the failure to effect a Change of Company Recommendation would be inconsistent with its fiduciary duties under applicable Law; and
(vi) the Company shall have complied with this Section 5.03 with respect to such Superior Proposal or Intervening Event (other than with respect to any breach that is de minimis).
(e) Notwithstanding any Change of Company Recommendation, unless this Agreement shall have been terminated in accordance with Article VII, (x) this Agreement shall be submitted to the stockholders of the Company at the Company Stockholder Meeting for the purpose of obtaining the Company Stockholder Approval, and nothing contained herein shall be deemed to relieve the Company of such obligation and (y) the Company Board shall not submit to the stockholders of the Company any Competing Proposal, or, except as permitted herein, propose to do so.
(fg) Nothing contained in this Section 5.03 shall prohibit the Company Board Company’s board of directors from (i) disclosing to the stockholders of the Company a position contemplated by Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act or (ii) making any disclosure to the stockholders of the Company if the Company Board Company’s board of directors determines in good faith, after consultation with the Company’s outside legal counsel, that the failure to make such disclosure would be inconsistent with its fiduciary duties under applicable Law to the stockholders of the Company under applicable Law (for the avoidance of doubt, it being agreed that the issuance by the Company or the Company Board Company’s board of directors of a “stop, look and listen” statement pending disclosure of its position, as contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act, shall not constitute a Change of Company Recommendation); provided, however, that in neither the Company’s board of directors nor any event, the Company Board shall not make committee thereof may effect a Change of Company Recommendation except pursuant to and in accordance with Section 5.03(d5.03(e) or Section 5.03(f).
(g) Any violation of the restrictions set forth in this Section 5.03 by any Company Representative shall be deemed to be a breach of this Section 5.03 by the Company.
Appears in 1 contract
Sources: Merger Agreement (Beam Inc)
Solicitation; Change of Company Recommendation. (a) Except as permitted by this Section 5.03, (i) from and after the date of this Agreementhereof, the Company shall, and shall cause the Company Subsidiaries and its and their respective directors, officers and employees to, and shall use reasonable best efforts to cause direct the Company’s officers, directors, employees, financial advisors, attorneys, accountants and other agents or representatives (collectively, the “Company Representatives Representatives”) to, (i) immediately cease any discussions or negotiations with any third parties that may be ongoing as of the date hereof with respect to an actual or potential Competing Proposal, (ii) immediately terminate the access of third parties to any data room the Company has established with respect to the Transactions, and (iii) promptly request, in accordance with the terms of any applicable confidentiality agreement, the return or destruction of any confidential information previously furnished to any third party with respect to an actual or potential Competing Proposal and any solicitations, discussions or negotiations with any persons that may be ongoing with respect to any Competing Proposal and to have destroyed or returned to the Company any confidential information that has been provided to any person in connection with any Competing Proposal and will enforce andProposal. Except as permitted by this Section 5.03, except as otherwise prohibited by applicable Law, will not waive any provisions of, any confidentiality or standstill agreement (or any similar agreement) to which the Company or any Company Subsidiary is a party relating to any such Competing Proposal; provided, that the Company shall be permitted to grant a waiver of any standstill agreement, in response to a bona fide unsolicited request (and to permit such request) for such waiver from the counterparty thereto, to permit a Competing Proposal to be made and (ii) from and after the date of this Agreement hereof until the earlier of the Effective Time and the termination of this Agreement, the Company shall not, shall cause the Company Subsidiaries and its and their respective directors, officers and employees not toto not, and shall use reasonable best efforts to cause any other direct the Company Representative Representatives not to, directly or indirectly, (A) initiate, solicit or knowingly encourage or facilitate (including by way any inquiries or the making or submission of furnishing non-public information) any inquiryoffer, proposal, proposal or indication of interest or offer which that constitutes, or would reasonably be expected to lead to, the submission of any a Competing Proposal, (B) furnish any non-public non‑public information regarding the Company or any Company Subsidiary to any third person in connection with with, or in response under circumstances that would reasonably be expected to lead to, a Competing Proposal, (C) initiate, solicit, knowingly encourage or facilitate, or participate in any discussions or negotiations with, knowingly encourage or facilitate in any way any effort by, with any third person with respect to any Competing Proposal, (D) approve amend, terminate or recommendwaive any provisions of any confidentiality, standstill or propose similar agreement to approve which it is a party with respect to any actual or recommendpotential Competing Proposal, a Competing Proposal or (E) execute or enter into any letter of intent, agreement in principle or acquisition agreement relating to any Competing Proposal (other than an Acceptable Confidentiality Agreement) or requiring the Company to abandon, terminate or fail to consummate the Transactions (an “Acquisition Agreement”) or (F) agree or publicly announce an intention to do any of the foregoing. The Company shall not, and shall cause the Company Subsidiaries not to, enter into any Contract with any person subsequent to the date of this Agreement, and none of the Company or any Company Subsidiary is party to any Contract, in each case, that prohibits the Company from complying with its obligations under this Section 5.03.
(b) Notwithstanding anything to the contrary contained in this AgreementAgreement if, but subject prior to the last sentence of this Section 5.03(b), if, at any time following the date of this Agreement and prior to receipt of the Company Stockholder ApprovalAcceptance Time, (i) the Company or any of the Company Representatives has received a bona fide written Competing Proposal (it being agreed that the Company Board may correspond in writing with any person making such a written Competing Proposal to request clarification of the terms and conditions thereof so as to determine whether such Competing Proposal constitutes or could reasonably be expected to lead to a Superior Proposal) from a person that did not result from a material breach of this Section 5.03 (other than a breach that is de minimis)5.03, and (ii) the Company Board determines in good faith, after consultation with its financial advisors and outside counsel, that such Competing Proposal constitutes or could reasonably be expected to lead to a Superior Proposal and (iii) the Company provides prior written notice to Parent disclosing its receipt of the Competing Proposal and including the name of the person making such Competing Proposal, the material terms and conditions of such Competing Proposal and a copy of any relevant Acquisition Agreement and any other relevant transaction documents, and disclosing its intent to furnish information or enter into discussions or negotiations with such person pursuant to this Section 5.03(b), then the Company may (A) furnish information with respect to the Company and the Company Subsidiaries to the person making such Competing Proposal and its representatives and (B) participate in discussions or negotiations with the person making such Competing Proposal and its representatives regarding such Competing Proposal; provided, however, that the Company (x) will not, will not permit the Company Subsidiaries to, and will not authorize the Company Representatives to, disclose any material non-public information regarding the Company to such person without first entering into an Acceptable Confidentiality Agreement with such person; (y) will keep Parent reasonably informed, on a prompt basis promptly (and in any event within twenty-four (24) 48 hours thereafter), ) provide Parent with the identity of any material amendments or material developments with respect to the third party making such Competing Proposal and a copy thereof (including any material changes thereto, and including by providing copies drafts of any revised or new Acquisition Agreement documentation and any other relevant transaction documentsfinancing commitments submitted to the Company by such third party at the time it makes such Competing Proposal) or, if not made in writing, a written summary of the material terms and conditions of such Competing Proposal and (z) will as promptly as practicable (and in any event within 24 hours thereafter) provide to Parent any material information concerning the Company or the Company Subsidiaries to be provided or made available to such other person (or its representatives) that was not previously provided or made available to Parent. None The Company shall keep Parent reasonably informed of any material developments, discussions or negotiations regarding any such Competing Proposal on a prompt basis (and in any event within 48 hours). In addition, the Company shall, as promptly as practicable (and in any event within 48 hours) notify Parent in writing if the Company or, to the knowledge of the foregoing shall prohibit the Company or Company, any of the Company Representatives receives any indication of interest, inquiry or request for discussions or information from contacting any person third party with respect to, or group of persons that has made a Competing Proposal after the date of this Agreement solely to request clarification of the terms and conditions thereof so as to determine whether the Competing Proposal constitutes or could would reasonably be expected to lead to to, a Superior Competing Proposal, including the identity of such third party and the nature of such indication, inquiry or request and shall keep Parent informed on a prompt basis (and in any such actions event within 48 hours) of any material developments or discussions with respect thereto. The Company agrees that it shall not be a breach of enter into any confidentiality agreement with any person subsequent to the date hereof that would prohibit the Company from providing any information to Parent in accordance with this Section 5.03; provided, however, that the Company shall have provided to Parent the information in clause (iii) of the first sentence of this Section 5.03(b).
(c) Except as set forth in Section 5.03(d) or Section 5.03(e), neither the Company Board nor any committee thereof shall (i) adopt, authorize, approve approve, recommend or recommend, or publicly propose submit to adopt, authorize, approve or recommend, a vote of its stockholders any Competing Proposal, (ii) fail to include in the Schedule 14D-9, or withdraw, withhold, withdraw, modify, qualify modify or amend, or publicly propose to withhold, withdraw, modify, qualify or amend, in each case in a manner adverse to Parent, the Company Recommendation or fail to include the Company Recommendation in the Proxy Statement, (iii) take any formal action or make any recommendation or public statement in connection with a tender offer or exchange offer other than a recommendation against such offer or a temporary “stock, look and listen” communication by the Company Board pursuant to Rule 14d-9(f) of the Exchange Act, (iv) fail to publicly recommend against any Competing Proposal, or fail to publicly reaffirm the Company Board Recommendation, in each case Recommendation within ten (10) days after the Business Days of receipt of a written request of by Parent following a Competing Proposal that has been becoming publicly announced (or such fewer number of days as remains prior to the Company Stockholder Meeting), (v) resolve, propose or agree to do any of the foregoing known (any action set forth in the foregoing clause clauses (i), (ii), ) through (iii), (iv) or (v), a “Change of Company Recommendation”) or (vi) allow the Company or any of the Company Subsidiaries to enter into any letter of intent, term sheet, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement or other similar agreement relating to, or that is intended to result in, or would reasonably be expected to lead to, any Competing Proposal (other than an Acceptable Confidentiality Agreement) (each an “Acquisition Agreement”) or requiring the Company to abandon, terminate or fail to consummate the Transactions).
(d) Notwithstanding anything to the contrary contained in this Agreement, at any time prior to receipt of the Company Stockholder ApprovalAcceptance Time, the Company Board may make a Change of Company Recommendation, solely Recommendation in response connection with a concurrent termination of this Agreement pursuant to (1Section 7.01(f) a Superior Proposal or (2) an Intervening Event, if:
(i) either (A) a Competing Proposal (that did not result from a material breach (other than a breach that is de minimisof Section 5.03) of this Section 5.03 is made to the Company by a third person and such Competing Proposal is not withdrawn or and (B) an Intervening Event has occurred and is continuing;
(ii) the Company Board determines in good faith, after consultation with its financial advisors and outside legal counsel, that (x) in the case of a Competing Proposal, such Competing Proposal constitutes a Superior Proposal and (y) the failure to make a Change of Company Recommendation would be inconsistent with its fiduciary duties under applicable LawProposal;
(iiiii) the Company provides Parent at least three (3) Business Days’ prior written notice of the Company’s intention to make a Change of Company Recommendation (a “Notice of Change of Recommendation”), which notice shall (x) state expressly that it has received a Superior Proposal or that an Intervening Event has occurred, (y) in the case of a Superior Proposal, identify the person making such Superior Proposal and include the material terms and conditions of such Superior Proposal, including copies of the definitive agreements and financing commitments relating to the Superior Proposal in the form to be entered into, and identify the person or group making such Superior Proposal (and it being agreed that neither the delivery of the Notice of Change of Recommendation by the Company shall contemporaneously provide a copy of any relevant Acquisition Agreement and any other relevant transaction documents to Parent), or, in nor the case of an Intervening Event, the material facts and circumstances of such Intervening Event and (z) state expressly public announcement that the Company Board intends to make is considering making a Change of Company Recommendation under applicable Law shall, in and of itself, constitute a Change of Company Recommendation, and specifying, in reasonable detail, the reasons therefor);
(iviii) if requested by Parent, the Company has negotiated in good faith with Parent with respect to any changes to the terms of this Agreement proposed by Parent for at least three five (35) Matching Period Business Days following receipt by Parent of such Notice of Change of Recommendation (it being understood and agreed that any amendment to any material term of such Superior Proposal shall require a new Notice of Change of Recommendation and an additional two period of three (23) Matching Period Business Day period Days from the date of such notice);; and
(viv) following the negotiation period contemplated by the foregoing clause (iii), taking into account any changes to the terms of this Agreement offered proposed by Parent in writingto the Company, the Company Board has determined in good faith, after consultation with its outside financial advisors and outside legal counsel, that (x) in the case of a Competing Proposal, such Competing Proposal would continue to constitute a Superior Proposal if such changes offered in writing by Parent were to be given effect and effect.
(ye) Notwithstanding anything to the contrary contained in this Agreement, at any time prior to the Acceptance Time, the Company Board may make a Change of Company Recommendation in response to a material event, change or development (other than in connection with a Competing Proposal) the failure existence, magnitude or consequences of which were not known by the Company Board at or prior to the date hereof and which did not result from or arise out of the announcement or pendency of, or actions or omissions pursuant to, this Agreement (such event, change or development, an “Intervening Event”), if:
(i) the Company provides Parent prior written notice of the Company’s intention to make a Change of Company Recommendation, which notice shall describe the circumstances relating to such Intervening Event (it being agreed that neither the delivery of the such notice by the Company nor the public announcement that the Company Board is considering making a Change of Company Recommendation under applicable Law shall, in and of itself, constitute a Change of Company Recommendation);
(ii) the Company has negotiated in good faith with Parent with respect to any changes to the terms of this Agreement proposed by Parent for at least five (5) days following receipt by Parent of such notice; and
(iii) following the negotiation period contemplated by the foregoing clause (ii), taking into account any changes to the terms of this Agreement proposed by Parent to the Company, the Company Board has determined in good faith, after consultation with its outside financial advisors and outside legal counsel, that the failure to a Change of Company Recommendation in light of such Intervening Event would reasonably be likely to be inconsistent with its fiduciary duties under applicable Law; and
(vi) the Company shall have complied with this Section 5.03 with respect to such Superior Proposal or Intervening Event (other than with respect to any breach that is de minimis).
(e) Notwithstanding any Change of Company Recommendation, unless this Agreement shall have been terminated in accordance with Article VII, (x) this Agreement shall be submitted to the stockholders of the Company at the Company Stockholder Meeting for the purpose of obtaining the Company Stockholder Approval, and nothing contained herein shall be deemed to relieve the Company of such obligation and (y) the Company Board shall not submit to the stockholders of the Company any Competing Proposal, or, except as permitted herein, propose to do so.;
(f) Nothing contained in this Section 5.03 shall prohibit the Company Board from (i) disclosing to the stockholders shareholders of the Company a position contemplated by Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act or (ii) making any disclosure to the stockholders shareholders of the Company if the Company Board determines in good faith, after consultation with outside counsel, that the failure to make such disclosure would reasonably be likely to be inconsistent with its fiduciary duties under applicable Law to the stockholders shareholders of the Company (for the avoidance of doubt, it being agreed that the issuance by the Company or the Company Board of a “stop, look and listen” statement pending disclosure of its position, as contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act, shall not constitute a Change of Company Recommendation); provided, however, that in any event, the Company Board shall not make a Change of Company Recommendation except in accordance with Section 5.03(d).
(g) Any violation of Prior to the restrictions set forth in this Section 5.03 by any Company Representative shall be deemed to be a breach termination of this Section 5.03 by Agreement, the CompanyCompany shall not take any action for the purpose of exempting any person other than Parent and Sub from the application of any Takeover Statutes.
Appears in 1 contract
Sources: Merger Agreement (Cellular Dynamics International, Inc.)
Solicitation; Change of Company Recommendation. (a) Except as permitted by this Section 5.036.03, (i) from and after the date of this Agreementhereof, the Company and the Operating Partnership shall, and shall cause the Company Subsidiaries and its and their respective directors, officers and employees directors to, and shall use reasonable best efforts to cause direct the Company’s other Company Representatives to, immediately cease any solicitations, discussions discussions, negotiations or negotiations communications with any persons that may be ongoing with respect to any Competing Proposal and to have destroyed or returned to the Company any confidential information that has been provided to any person in connection with any Competing Proposal and will enforce and, except as otherwise prohibited by applicable Law, will not waive any provisions of, any confidentiality or standstill agreement (or any similar agreement) to which the Company or any Company Subsidiary is a party relating to any such Competing Proposal; provided, that the Company shall be permitted to grant a waiver of any standstill agreement, in response to a bona fide unsolicited request (and to permit such request) for such waiver from the counterparty thereto, to permit a Competing Proposal to be made and (ii) from and after the date of this Agreement hereof until the earlier of the Company Merger Effective Time and the termination of this Agreement, the Company shall not, shall cause the Company Subsidiaries and its and their respective directors, officers and employees not toto not, and shall use reasonable best efforts to cause not authorize any other Company Representative not to, directly or indirectly, (A) initiate, solicit or solicit, knowingly encourage or facilitate (including by way of furnishing non-public information) any inquiry, proposal, indication of interest or offer which constitutes, or would reasonably be expected to lead to, the submission of any Competing Proposal, (B) furnish any non-public information regarding the Company or any Company Subsidiary to any third person in connection with respect to any Competing Proposal or in response the making of any proposal or offer that constitutes or could reasonably be expected to lead to a Competing Proposal, Proposal or (C) initiate, solicit, knowingly encourage or facilitate, or participate in any discussions or negotiations with, knowingly encourage or facilitate in with any way any effort by, any third person with respect to any Competing Proposal, (D) approve Proposal or recommend, the making of any proposal or propose offer that constitutes or could reasonably be expected to approve or recommend, lead to a Competing Proposal or (E) agree to do any of the foregoingProposal. The Company shall not, and shall cause the not permit any Company Subsidiaries not Subsidiary to, enter into terminate, waive, amend or modify any Contract with provision of any person subsequent standstill or confidentiality agreement to the date of this Agreement, and none of which the Company or any Company Subsidiary is party to any Contracta party, in each casecase with respect to the submission of any Competing Proposal, that prohibits except to the Company from complying with its obligations under this Section 5.03extent to allow the applicable party to make a confidential Competing Proposal to the Company’s board of directors.
(b) Notwithstanding anything to the contrary contained in this Agreement, Agreement (but subject to the last sentence Company’s compliance with the provisions of this Section 5.03(b6.03), if, at any time following the date of this Agreement hereof and prior to receipt of the Company obtaining the Company Stockholder Approval, (i) the Company has received a written unsolicited bona fide Competing Proposal (it being agreed that the board of directors of the Company may correspond in writing with any person making such a written Competing Proposal to request clarification of the terms and conditions thereof so as to determine whether such Competing Proposal constitutes or could reasonably be expected to lead to a Superior Proposal) from a person that did not result from a breach of this Section 5.03 (other than a breach that is de minimis), 6.03(a) and (ii) the Company Board Company’s board of directors determines in good faith, after consultation with its financial advisors and outside legal counsel, that such Competing Proposal constitutes or could reasonably be expected to lead to a Superior Proposal and (iii) the Company provides prior written notice to Parent disclosing its receipt of the Competing Proposal and including the name of the person making such Competing Proposal, the material terms and conditions of such Competing Proposal and a copy of any relevant Acquisition Agreement and any other relevant transaction documents, and disclosing its intent to furnish information or enter into discussions or negotiations with such person pursuant to this Section 5.03(b), then the Company may (A) furnish information with respect to the Company and the Company Subsidiaries to the person making such Competing Proposal and its representatives Representatives and (B) participate in discussions or negotiations with the person making such Competing Proposal and its representatives Representatives regarding such Competing Proposal; provided, however, that the Company (x1) will not, will not permit the Company Subsidiaries to, and will not authorize any of the Company Company’s Representatives to, disclose any material non-public information regarding the Company to such person without first entering into an Acceptable Confidentiality Agreement with such person; (y) person and will keep Parent reasonably informed, on a prompt basis as promptly as practicable (and in any event within twenty-four (24) 48 hours thereafter), ) advise Parent in writing of the receipt of any Competing Proposal, the material amendments or material developments with respect to such Competing Proposal terms and conditions thereof (including any material changes theretoincluding, and including by if applicable, providing copies of any revised or new Acquisition Agreement written Competing Proposals and any other relevant transaction documentsdrafts of proposed agreements related thereto) and the identity of any person making such Competing Proposal, (z2) will as promptly as practicable (and in any event within 24 hours thereafter) after receipt of any request for non-public information relating to it or any Company Subsidiary or for access to its or any of the Company Subsidiaries’ properties, books or records by any person that, to the Company’s knowledge, is reasonably likely to make, or has made, a Competing Proposal, notify Parent orally and in writing of such receipt, (3) will promptly (and in any event within 24 hours thereafter) provide to Parent any material information concerning the Company or the Company Subsidiaries to be provided or made available to such other person (or its representativesRepresentatives) that was not previously provided or made available to Parent. None Parent and (4) will promptly (and in any event within 48 hours thereafter) notify Parent of any change to the financial and other material terms and conditions of any Competing Proposal and otherwise keep Parent reasonably informed of the foregoing shall prohibit status of any such Competing Proposal, including by providing copies of all proposals, offers and drafts of proposed agreements related thereto. Neither the Company or the nor any Company Representatives from contacting any person or group of persons that has made a Competing Proposal Subsidiary shall, after the date of this Agreement solely Agreement, enter into any confidentiality or similar agreement that would prohibit it from providing such information to request clarification of the terms and conditions thereof so as to determine whether the Competing Proposal constitutes or could reasonably be expected to lead to a Superior Proposal, and any such actions shall not be a breach of this Section 5.03; provided, however, that the Company shall have provided to Parent the information in clause (iii) of the first sentence of this Section 5.03(b)Parent.
(c) Except as set forth in Section 5.03(d6.03(d) or Section 5.03(e6.03(e), neither the Company Board Company’s board of directors nor any committee thereof shall (i) adopt, authorize, approve or recommend, recommend (or publicly propose to adopt, authorize, approve or recommend, ) any Competing Proposal, (ii) withhold, withdraw, modify, qualify modify or amend, amend (or publicly propose to withhold, withdraw, modify, qualify modify or amend), in each case in a manner adverse to Parent, the Company Recommendation or Recommendation, (iii) fail to include the Company Recommendation in the Proxy Statement, (iii) take any formal action or make any recommendation or public statement in connection with a tender offer or exchange offer other than a recommendation against such offer or a temporary “stock, look and listen” communication by the Company Board pursuant to Rule 14d-9(f) of the Exchange Act, (iv) fail to publicly recommend against any Competing Proposal, or fail to publicly reaffirm the Company Board Recommendation, in each case within ten (10) days after the written request of Parent following a Competing Proposal that has been publicly announced (or such fewer number of days as remains prior to the Company Stockholder Meeting), (v) resolve, propose or agree to do any of the foregoing Statement (any action set forth in the foregoing clause clauses (i), (ii), ) through (iii), (iv) or (v), a “Change of Company Recommendation”) or (viiv) authorize or allow the Company or any of the Company Subsidiaries to enter into any letter of intent, term sheet, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement or other similar agreement relating to, or that is intended to result in, or would reasonably be expected to lead to, any Competing Proposal (other than an Acceptable Confidentiality Agreement) (each an “Acquisition Agreement”) or requiring the Company or the Operating Partnership to abandon, terminate or fail to consummate the Transactionstransactions contemplated by this Agreement (any of the foregoing referenced in this clause (iv), an “Alternative Acquisition Agreement”).
(d) Notwithstanding anything to the contrary contained in this Agreement, at any time prior to receipt of obtaining the Company Stockholder Approval, if the Company Board is not in breach of this Section 6.03 in any material respect the board of directors of the Company may make a Change of Company Recommendation, solely Recommendation and may cause the Company to terminate this Agreement in response to (1) a Superior Proposal or (2) an Intervening Eventaccordance with Section 8.01(f), if:
(i) either (A) a written Competing Proposal (that did not result from a breach (other than a breach that is de minimisof Section 6.03(a)) of this Section 5.03 is made to the Company or any Company Subsidiary by a third person any person, and such Competing Proposal is not withdrawn or and (B) an Intervening Event has occurred and is continuing;
(ii) the Company Board Company’s board of directors determines in good faith, after consultation with its financial advisors and outside legal counsel, that (x) in the case of a Competing Proposal, such Competing Proposal constitutes a Superior Proposal and (y) the failure to make a Change of Company Recommendation would be inconsistent with its fiduciary duties under applicable LawProposal;
(iiiii) the Company provides Parent at least three (3) Business Days’ prior written notice of the Company’s intention to make a Change of Company Recommendation (a “Notice of Change of Recommendation”), which notice shall (x) state expressly that it has received a Superior Proposal or that an Intervening Event has occurred, (y) in the case of a Superior Proposal, identify the person making such Superior Proposal and include the material terms and conditions of such Superior Proposal Proposal, including, if applicable, copies of any written proposals or offers and any proposed agreements related thereto (and it being agreed that the delivery of the Notice of Change of Recommendation by the Company shall contemporaneously provide a copy of any relevant Acquisition Agreement and any other relevant transaction documents to Parent), or, in the case of an Intervening Event, the material facts and circumstances of such Intervening Event and (z) state expressly that the Company Board intends to make not constitute a Change of Company Recommendation, and specifying, in reasonable detail, the reasons therefor);
(iviii) if requested by Parent, the Company has negotiated (and caused its Representatives to negotiate) in good faith with Parent (to the extent Parent desires to negotiate) with respect to any changes to the terms of this Agreement proposed by Parent in order to obviate the need to make such Change of Company Recommendation or terminate this Agreement pursuant to Section 8.01(f) for at least three (3) Business Days following receipt by Parent of such Notice of Change of Recommendation (it being understood and agreed that any amendment to the financial terms or any other material term of such Superior Proposal shall require a new Notice of Change of Recommendation and an additional the Company shall be required to comply again with the provisions of this Section 6.03(d), provided that, in the case of any such amendment, the reference to three (3) Business Days in this clause (iii) shall instead be two (2) Business Days following receipt by Parent of any such new Notice of Change of Recommendation); and
(iv) at the end of such three (3) Business Day period (or two (2) Business Day period from the date of such noticeperiod, if applicable);
(v) , and taking into account any changes to the terms of this Agreement offered proposed by Parent in writingto the Company, the Company Board Company’s board of directors has determined in good faith, after consultation with its outside financial advisors and outside legal counsel, that (x) in the case of a Competing Proposal, such Competing Proposal would continue to constitute a Superior Proposal even if such changes offered in writing proposed by Parent were given effect.
(e) Other than in connection with a Competing Proposal (which shall be subject to Section 6.03(d) and shall not be given effect and subject to this Section 6.03(e)), nothing in this Agreement shall prohibit or restrict the Company’s board of directors from withholding, modifying or amending in a manner adverse to Parent, the Company Recommendation if prior to obtaining the Company Stockholder Approval:
(yi) the Company’s board of directors determines in good faith, after consultation with the Company’s outside legal counsel, that the failure of the Company’s board of directors to make effect a Change of Company Recommendation would reasonably be likely to be inconsistent with its fiduciary duties under applicable Law;
(ii) the Company provides Parent prior written notice of its intention to take such action, which notice shall specify in reasonable detail the reasons therefor (it being agreed that the delivery of such notice by the Company shall not constitute a Change of Company Recommendation);
(iii) the Company has negotiated (and caused its Representatives to negotiate) in good faith with Parent (to the extent Parent desires to negotiate) with respect to any changes to the terms of this Agreement proposed by Parent in order to obviate the need to make such Change of Company Recommendation for at least three (3) Business Days following receipt by Parent of such notice; and
(viiv) at the Company shall have complied end of the three (3) Business Day period described in the foregoing clause (iii), and taking into account any changes to this Agreement proposed by Parent to the Company, the Company’s board of directors has determined in good faith, after consultation with this Section 5.03 with respect its outside legal counsel, that the failure of the Company’s board of directors to such Superior Proposal or Intervening Event (other than with respect to any breach that is de minimis).
(e) Notwithstanding any effect a Change of Company Recommendation, unless this Agreement shall have been terminated in accordance Recommendation would reasonably be likely to be inconsistent with Article VII, (x) this Agreement shall be submitted to the stockholders of the Company at the Company Stockholder Meeting for the purpose of obtaining the Company Stockholder Approval, and nothing contained herein shall be deemed to relieve the Company of its duties under applicable Law even if such obligation and (y) the Company Board shall not submit to the stockholders of the Company any Competing Proposal, or, except as permitted herein, propose to do sochanges proposed by Parent were given effect.
(f) Nothing contained in this Section 5.03 Agreement shall prohibit the Company Board Company’s board of directors from (i) disclosing to the stockholders of the Company a position contemplated by Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act or (ii) making any disclosure to the stockholders of the Company if the Company Board Company’s board of directors determines in good faith, after consultation with outside legal counsel, that the failure to make such disclosure would reasonably be likely to be inconsistent with its fiduciary duties under applicable Law to the stockholders of the Company (for the avoidance of doubt, it being agreed that the issuance by the Company or the Company Board Company’s board of directors of a “stop, look and listen” statement pending disclosure of its position, as contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act, shall not constitute a Change of Company Recommendation)) or is required by applicable Law; provided, however, that in any event, neither the Company Board nor the Company’s board of directors shall not make be permitted to recommend that the stockholders of the Company tender any securities in connection with any tender offer or exchange offer that is a Competing Proposal or effect a Change of Company Recommendation with respect thereto, except as permitted by Section 6.03(d). The Company and the Company’s board of directors shall not take any actions to exempt any person from the “Aggregate Stock Ownership Limit” or the “Common Stock Ownership Limit” or establish or increase an “Excepted Holder Limit,” as such terms are defined in the Company Charter unless such actions are taken concurrently with the termination of this Agreement in accordance with Section 5.03(d8.01(f).
(g) Any violation of the restrictions set forth in this Section 5.03 by any Company Representative shall be deemed to be a breach of this Section 5.03 by the Company.
Appears in 1 contract
Solicitation; Change of Company Recommendation. The Company and Parent shall make or file, or cause to made or filed, as promptly as practicable, with the appropriate Governmental Entity all filings, forms, registrations and notifications required to be filed to consummate the Merger under any applicable Antitrust Law, and subsequent to such filings, the Company and Parent shall, and shall cause their respective Affiliates to, as promptly as practicable, respond to inquiries from Governmental Entities, or provide any supplemental information that may be requested by Governmental Entities, in connection with filings made with such Governmental Entities. The Company and Parent shall file, or cause to be filed, the notification and report forms required under the HSR Act no later than ten (a10) Except as permitted by this Section 5.03, (i) from and Business Days after the date of this Agreement, and any filings, notifications or submissions (or drafts thereof, as appropriate) required under any other applicable Antitrust Laws as promptly as practicable, but no later than thirty (30) Business Days, after the date of this Agreement. Each of Parent and the Company shall, shall cause the Company Subsidiaries and its and their respective directors, officers and employees to, and shall use reasonable best efforts to cause the (i) cooperate with each other Company Representatives to, immediately cease any solicitations, discussions or negotiations in connection with any persons that may be ongoing such filing and in connection with resolving any investigation or other inquiry of any Governmental Entity under applicable Laws with respect to any Competing Proposal such filing, (ii) keep each other apprised of the status of any communications with and to have destroyed any inquiries or returned requests for additional information from any Governmental Entity, (iii) comply as promptly as practicable with any such inquiry or requests for additional information, (iv) give the other party reasonable prior notice of any such filings or submissions and, to the Company extent reasonably practicable, of any confidential information that has been provided communication to or from any person Governmental Entity regarding the Transactions, and provide the other party a reasonable opportunity to review, comment on and discuss in advance, and consider in good faith the views of the other party in connection with with, any Competing Proposal such filings, submissions and will enforce andcommunications, except as otherwise and (v) unless prohibited by applicable Law, will not waive any provisions of, any confidentiality or standstill agreement (or any similar agreement) to which the Company or any Company Subsidiary is a party relating to any such Competing Proposal; provided, that the Company shall be permitted to grant a waiver of any standstill agreement, in response to a bona fide unsolicited request (and to permit such request) for such waiver from the counterparty thereto, to permit a Competing Proposal to be made and (ii) from and after the date of this Agreement until the earlier of the Effective Time and the termination of this Agreement, the Company shall not, shall cause the Company Subsidiaries and its and their respective directors, officers and employees not to, and shall use reasonable best efforts to cause any other Company Representative not to, directly or indirectly, (A) initiate, solicit not participate in or knowingly encourage or facilitate (including by way of furnishing non-public information) attend any inquiry, proposal, indication of interest or offer which constitutesmeeting, or would reasonably be expected to lead toengage in any substantive conversation, with any Governmental Entity in respect of the submission of any Competing ProposalTransactions without the other party (other than telephone calls regarding routine administrative matters), (B) furnish give the other party reasonable prior notice of any non-public information regarding the Company such meeting or any Company Subsidiary to any third person in connection with or in response to a Competing Proposalsubstantive conversation, and (C) initiatefurnish the other party with copies of all filings, solicitsubmissions and substantive communications to or from any Governmental Entity regarding the Transactions; provided that confidential information pertaining to each party may be withheld or redacted as appropriate (except that such confidential information shall not be withheld or redacted from copies of any filings, knowingly encourage submissions, communications or facilitateother documents made available by a party to the other parties’ outside counsel); provided, or participate in any discussions or negotiations withfurther, knowingly encourage or facilitate in any way any effort bythat, any third person with respect to any Competing Proposal, (D) approve or recommend, or propose to approve or recommend, a Competing Proposal or (E) agree to do any of notwithstanding the foregoing. The Company shall not, and shall cause the Company Subsidiaries not to, enter into any Contract with any person subsequent materials made available to the date other parties’ outside counsel may be redacted to remove references concerning the valuation of this Agreement, and none of the Company or any Company Subsidiary is party to any Contract, in each case, that prohibits the Company from complying with its obligations under this Section 5.03.
(b) Notwithstanding anything to the contrary contained in this Agreement, but subject to the last sentence of this Section 5.03(b), if, at any time following the date of this Agreement and prior to receipt of the Company Stockholder Approval, (i) the Company has received a bona fide written Competing Proposal from a person that did not result from a breach of this Section 5.03 (other than a breach that is de minimis), (ii) the Company Board determines in good faith, after consultation with its financial advisors and outside counsel, that such Competing Proposal constitutes or could reasonably be expected to lead to a Superior Proposal and (iii) the Company provides prior written notice to Parent disclosing its receipt of the Competing Proposal and including the name of the person making such Competing Proposal, the material terms and conditions of such Competing Proposal and a copy of any relevant Acquisition Agreement and any other relevant transaction documents, and disclosing its intent to furnish information or enter into discussions or negotiations with such person pursuant to this Section 5.03(b), then the Company may (A) furnish information with respect to the Company and the Company Subsidiaries to the person making such Competing Proposal and its representatives and (B) participate in discussions or negotiations with the person making such Competing Proposal and its representatives regarding such Competing Proposal; provided, however, that the Company (x) will not, will not permit the Company Subsidiaries to, and will not authorize the Company Representatives to, disclose any material non-public information regarding the Company to such person without first entering into an Acceptable Confidentiality Agreement with such person; (y) will keep Parent reasonably informed, on a prompt basis (and in any event within twenty-four (24) hours thereafter), of any material amendments or material developments with respect to such Competing Proposal (including any material changes thereto, and including by providing copies of any revised or new Acquisition Agreement and any other relevant transaction documents) and (z) will provide to Parent any material information concerning the Company or the Company Subsidiaries to be provided or made available to such other person (or its representatives) that was not previously provided or made available to Parent. None of the foregoing shall prohibit the Company or the Company Representatives from contacting any person or group of persons that has made a Competing Proposal after the date of this Agreement solely to request clarification of the terms and conditions thereof so as to determine whether the Competing Proposal constitutes or could reasonably be expected to lead to a Superior Proposal, and any such actions shall not be a breach of this Section 5.03; provided, however, that the Company shall have provided to Parent the information in clause (iii) of the first sentence of this Section 5.03(b)Merger.
(c) Except as set forth in Section 5.03(d) or Section 5.03(e), neither the Company Board nor any committee thereof shall (i) adopt, authorize, approve or recommend, or publicly propose to adopt, authorize, approve or recommend, any Competing Proposal, (ii) withhold, withdraw, modify, qualify or amend, or publicly propose to withhold, withdraw, modify, qualify or amend, in each case in a manner adverse to Parent, the Company Recommendation or fail to include the Company Recommendation in the Proxy Statement, (iii) take any formal action or make any recommendation or public statement in connection with a tender offer or exchange offer other than a recommendation against such offer or a temporary “stock, look and listen” communication by the Company Board pursuant to Rule 14d-9(f) of the Exchange Act, (iv) fail to publicly recommend against any Competing Proposal, or fail to publicly reaffirm the Company Board Recommendation, in each case within ten (10) days after the written request of Parent following a Competing Proposal that has been publicly announced (or such fewer number of days as remains prior to the Company Stockholder Meeting), (v) resolve, propose or agree to do any of the foregoing (any action set forth in the foregoing clause (i), (ii), (iii), (iv) or (v), a “Change of Company Recommendation”) or (vi) allow the Company or any of the Company Subsidiaries to enter into any letter of intent, term sheet, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement or other similar agreement relating to, or that is intended to result in, or would reasonably be expected to lead to, any Competing Proposal (other than an Acceptable Confidentiality Agreement) (each an “Acquisition Agreement”) or requiring the Company to abandon, terminate or fail to consummate the Transactions.
(d) Notwithstanding anything to the contrary contained in this Agreement, at any time prior to receipt of the Company Stockholder Approval, the Company Board may make a Change of Company Recommendation, solely in response to (1) a Superior Proposal or (2) an Intervening Event, if:
(i) either (A) a Competing Proposal that did not result from a breach (other than a breach that is de minimis) of this Section 5.03 is made to the Company by a third person and such Competing Proposal is not withdrawn or (B) an Intervening Event has occurred and is continuing;
(ii) the Company Board determines in good faith, after consultation with its financial advisors and outside legal counsel, that (x) in the case of a Competing Proposal, such Competing Proposal constitutes a Superior Proposal and (y) the failure to make a Change of Company Recommendation would be inconsistent with its fiduciary duties under applicable Law;
(iii) the Company provides Parent at least three (3) Business Days’ prior written notice of the Company’s intention to make a Change of Company Recommendation (a “Notice of Change of Recommendation”), which notice shall (x) state expressly that it has received a Superior Proposal or that an Intervening Event has occurred, (y) in the case of a Superior Proposal, identify the person making such Superior Proposal and include the material terms and conditions of such Superior Proposal (and the Company shall contemporaneously provide a copy of any relevant Acquisition Agreement and any other relevant transaction documents to Parent), or, in the case of an Intervening Event, the material facts and circumstances of such Intervening Event and (z) state expressly that the Company Board intends to make a Change of Company Recommendation, and specifying, in reasonable detail, the reasons therefor;
(iv) if requested by Parent, the Company has negotiated in good faith with Parent with respect to any changes to the terms of this Agreement proposed by Parent for at least three (3) Business Days following receipt by Parent of such Notice of Change of Recommendation (it being understood and agreed that any amendment to any material term of such Superior Proposal shall require a new Notice of Change of Recommendation and an additional two (2) Business Day period from the date of such notice);
(v) taking into account any changes to the terms of this Agreement offered by Parent in writing, the Company Board has determined in good faith, after consultation with its financial advisors and outside legal counsel, that (x) in the case of a Competing Proposal, such Competing Proposal would continue to constitute a Superior Proposal if such changes offered in writing by Parent were to be given effect and (y) the failure to make a Change of Company Recommendation would be inconsistent with its fiduciary duties under applicable Law; and
(vi) the Company shall have complied with this Section 5.03 with respect to such Superior Proposal or Intervening Event (other than with respect to any breach that is de minimis).
(e) Notwithstanding any Change of Company Recommendation, unless this Agreement shall have been terminated in accordance with Article VII, (x) this Agreement shall be submitted to the stockholders of the Company at the Company Stockholder Meeting for the purpose of obtaining the Company Stockholder Approval, and nothing contained herein shall be deemed to relieve the Company of such obligation and (y) the Company Board shall not submit to the stockholders of the Company any Competing Proposal, or, except as permitted herein, propose to do so.
(f) Nothing contained in this Section 5.03 shall prohibit the Company Board from (i) disclosing to the stockholders of the Company a position contemplated by Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act or (ii) making any disclosure to the stockholders of the Company if the Company Board determines in good faith, after consultation with outside counsel, that the failure to make such disclosure would be inconsistent with its fiduciary duties under applicable Law to the stockholders of the Company (for the avoidance of doubt, it being agreed that the issuance by the Company or the Company Board of a “stop, look and listen” statement pending disclosure of its position, as contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act, shall not constitute a Change of Company Recommendation); provided, however, that in any event, the Company Board shall not make a Change of Company Recommendation except in accordance with Section 5.03(d).
(g) Any violation of the restrictions set forth in this Section 5.03 by any Company Representative shall be deemed to be a breach of this Section 5.03 by the Company.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Anixter International Inc)