Acquiror Exclusivity. (a) During the Interim Period, neither Acquiror nor Merger Sub shall take, nor shall they permit any of their respective Affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any Person (other than the Company and/or any of its Affiliates), concerning, relating to or which is intended to give rise to or result in, any offer, inquiry, proposal or indication of interest, whether written or oral, relating to any Business Combination other than with the Company, the Company Stockholders and their respective Affiliates and Representatives (a “Business Combination Proposal”). Each of Acquiror and Merger Sub shall, and each shall cause its respective Affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any Person conducted prior to the date hereof with respect to a Business Combination Proposal. (b) Except as set forth in Section 8.04(c), neither the Acquiror Board nor any committee thereof shall: (i) fail to include the Acquiror Board Recommendation in the Proxy Statement/Prospectus when disseminated to the Acquiror Stockholders (and at all times thereafter prior to receipt of the Acquiror Stockholder Approval); (ii) withhold, withdraw, amend, qualify or modify or publicly propose to withhold, withdraw, amend, qualify or modify, in each case in a manner adverse to the Company, the Acquiror Board Recommendation; or (iii) resolve, agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (iii) being referred to herein as a “Change in Acquiror Board Recommendation”). (c) Notwithstanding any provision of Section 8.04(b), at any time prior to the receipt of the Acquiror Stockholder Approval, but not after, the Acquiror Board may: (i) make a Change in Acquiror Board Recommendation in connection with an Acquiror Intervening Event if the Acquiror Board determines in good faith, after consultation with its outside legal counsel, that failure to do so would be inconsistent with its fiduciary obligations under applicable Law; provided, however, that prior to making such Change in Acquiror Board Recommendation, (A) Acquiror shall provide the Company with written notice of its intention to take such action at least three (3) Business Days in advance of taking such action, specifying the reasons for the Acquiror Board’s intention (it being understood that any material development with respect to an Acquiror Intervening Event shall require a new notice), (B) Acquiror shall and shall direct its Representatives to negotiate in good faith with the Company during such three (3) Business Day period, to the extent the Company wishes to negotiate, to enable the Company to propose revisions or modifications to the terms of this Agreement such that it would permit the Acquiror Board not to make a Change in Acquiror Board Recommendation pursuant to this Section 8.03(b) and (C) at the end of such three (3) Business Day period, the Acquiror Board shall consider in good faith any revisions or modifications to the terms of this Agreement proposed in writing by the Company, and determine in good faith, after consultation with its outside legal counsel and taking into account such revisions or modifications, whether the Acquiror Board’s failure to make a Change in Acquiror Board Recommendation would continue to be inconsistent with its fiduciary duties under applicable Law. (d) Nothing contained in this Section 8.04 shall prohibit Acquiror or the Acquiror Board or any committee thereof from: (i) taking and disclosing to the stockholders of Acquiror a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or making a statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9 promulgated under the Exchange Act (or any similar communication to shareholders in connection with the making or amendment of a tender offer or exchange offer); (ii) making any disclosure to the Acquiror Stockholders if the Acquiror Board determines in good faith, after consultation with its outside legal counsel, that failure to do so would be inconsistent with its fiduciary obligations under applicable Law; or (iii) making any “stop-look-and-listen” communication to its stockholders pursuant to Rule 14d-9(f) promulgated under the Exchange Act (or any similar communications to its stockholders).
Appears in 4 contracts
Samples: Merger Agreement (Seaport Global Acquisition II Corp.), Merger Agreement (American Battery Materials, Inc.), Merger Agreement (RMG Acquisition Corp.)
Acquiror Exclusivity. (ai) During the Interim Period, neither Acquiror nor Merger Sub shall take, nor shall they permit any of their respective Affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any Person (other than the Company and/or any of its Affiliates), concerning, relating to or which is intended to give rise to or result in, any offer, inquiry, proposal or indication of interest, whether written or oral, relating to any Business Combination other than with the Company, the Company Stockholders and their respective Affiliates and Representatives (a “Business Combination Proposal”). Each of Acquiror and Merger Sub shall, and each shall cause its respective Affiliates Subsidiaries and Representatives to, immediately cease and terminate any existing solicitation, initiation, encouragement, activity, discussion or negotiation with any Persons conducted heretofore by Acquiror, its Subsidiaries or any of its Representatives with respect to any proposed, potential or contemplated Acquiror Acquisition Proposal the consummation of which would be reasonably expected to (x) result in a material delay in the Effective Time or (y) materially and adversely impact the likelihood of obtaining any Required Company Consent or Required Acquiror Consent other than those the failures to obtain would not result in either a Company Material Adverse Effect or a Acquiror Material Adverse Effect (a "PROHIBITED ACQUIROR ACQUISITION PROPOSAL").
(ii) From and after the date hereof, Acquiror will notify the Company of any Acquiror Acquisition Proposal of which notice is given to the Acquiror Board. Such notice to the Company will be made promptly after such notice to the Acquiror Board, but will be conditional upon an appropriate confidentiality Agreement. Without the prior written consent of the Company, Acquiror will not authorize or permit any of its Subsidiaries to, and shall cause any and all existing of its Representatives not to, directly or indirectly, (A) solicit, initiate, or encourage any inquiries or proposals that constitute, or could reasonably be expected to lead to, a Prohibited Acquiror Acquisition Proposal, or (B) engage in negotiations or discussions or negotiations with any Person conducted prior Acquiror Third Party concerning, or provide any nonpublic information to the date hereof any person or entity relating to, a Prohibited Acquiror Acquisition Proposal, or (C) enter into any letter of intent, agreement in principle or any acquisition agreement or other similar agreement with respect to a Business Combination any Prohibited Acquiror Acquisition Proposal.
(b; PROVIDED, HOWEVER, that nothing contained in this ss.5(i)(ii) Except as set forth in Section 8.04(c), neither shall prevent Acquiror or the Acquiror Board nor any committee thereof shall: (i) fail to include the Acquiror Board Recommendation in the Proxy Statement/Prospectus when disseminated to the Acquiror Stockholders (and at all times thereafter from, prior to receipt of the Acquiror Requisite Stockholder Approval); (ii) withhold, withdraw, amend, qualify or modify or publicly propose to withhold, withdraw, amend, qualify or modify, in each case in a manner adverse to the Company, the Acquiror Board Recommendation; or (iii) resolve, agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (iii) being referred to herein as a “Change in Acquiror Board Recommendation”).
(c) Notwithstanding any provision of Section 8.04(b), at any time prior to the receipt Approval of the Acquiror Stockholder ApprovalStockholders, but not afterfurnishing nonpublic information to, the or entering into discussions or negotiations with, any Acquiror Board may: (i) make a Change in Acquiror Board Recommendation Third Party in connection with an unsolicited, bona fide written proposal for a Prohibited Acquiror Intervening Event Acquisition Proposal by such Acquiror Third Party, if and only to the extent that (1) such Acquiror Third Party has made a written proposal to the Acquiror Board to consummate a Prohibited Acquiror Acquisition Proposal, (2) the Acquiror Board determines in good faith, after consultation with its based upon the advice of a financial advisor of nationally recognized reputation, that such Prohibited Acquiror Acquisition Proposal is reasonably capable of being completed on substantially the terms proposed, and would, if consummated, result in a transaction that would provide greater value to the holders of the Acquiror Shares than the transaction contemplated by this Agreement (an "ACQUIROR SUPERIOR PROPOSAL"), (3) the failure to take such action would, in the reasonable good faith judgment of the Acquiror Board, based upon a written opinion of Acquiror's outside legal counsel, that failure to do so would be inconsistent with a violation of its fiduciary obligations duties to the Acquiror's stockholders under applicable Law; providedlaw, however, that and (4) prior to making furnishing such Change in Acquiror Board Recommendationnonpublic information to, (A) Acquiror shall provide the Company with written notice of its intention to take or entering into discussions or negotiations with, such action at least three (3) Business Days in advance of taking such action, specifying the reasons for the Acquiror Board’s intention (it being understood that any material development with respect to an Acquiror Intervening Event shall require a new notice), (B) Acquiror shall and shall direct its Representatives to negotiate in good faith with the Company during such three (3) Business Day period, to the extent the Company wishes to negotiate, to enable the Company to propose revisions or modifications to the terms of this Agreement such that it would permit the Acquiror Board not to make a Change in Acquiror Board Recommendation pursuant to this Section 8.03(b) and (C) at the end of such three (3) Business Day periodPerson, the Acquiror Board shall consider in good faith any revisions or modifications receives from such Person an executed confidentiality agreement with material terms no less favorable to the terms of this Agreement proposed in writing by the Company, and determine in good faith, after consultation with its outside legal counsel and taking into account such revisions or modifications, whether the Acquiror Board’s failure to make a Change in Acquiror Board Recommendation would continue to be inconsistent with its fiduciary duties under applicable Law.
(d) Nothing than those contained in this Section 8.04 shall prohibit the Confidentiality Agreement. Acquiror agrees not to release any Acquiror Third Party from, or the Acquiror Board waive any provision of, any standstill agreement to which it is a party or any committee thereof from: (i) taking confidentiality agreement between it and disclosing another Person who has made, or who may reasonably be considered likely to the stockholders of make, a Prohibited Acquiror a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or making a statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9 promulgated under the Exchange Act (or any similar communication to shareholders in connection with the making or amendment of a tender offer or exchange offer); (ii) making any disclosure to the Acquiror Stockholders if the Acquiror Board determines in good faith, after consultation with its outside legal counsel, that failure to do so would be inconsistent with its fiduciary obligations under applicable Law; or (iii) making any “stop-look-and-listen” communication to its stockholders pursuant to Rule 14d-9(f) promulgated under the Exchange Act (or any similar communications to its stockholders).Acquisition Proposal,
Appears in 1 contract
Samples: Merger Agreement (Netrix Corp)
Acquiror Exclusivity. (ai) During the Interim Period, neither Acquiror nor Merger Sub shall take, nor shall they permit any of their respective Affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any Person (other than the Company and/or any of its Affiliates), concerning, relating to or which is intended to give rise to or result in, any offer, inquiry, proposal or indication of interest, whether written or oral, relating to any Business Combination other than with the Company, the Company Stockholders and their respective Affiliates and Representatives (a “Business Combination Proposal”). Each of Acquiror and Merger Sub shall, and each shall cause its respective Affiliates Subsidiaries and Representatives to, immediately cease and terminate any and all existing discussions solicitation, initiation, encouragement, activity, discussion or negotiations negotiation with any Person Persons conducted prior to the date hereof heretofore by Acquiror, its Subsidiaries or any of their respective Affiliates, officers, directors, employees, financial advisors, agents or representatives (each a "Representative") with respect to a Business Combination any proposed, potential or contemplated Acquiror Acquisition Proposal.
(bii) Except as set forth in Section 8.04(cFrom and after the date hereof, without the prior written consent of Company, Acquiror will not, and will not authorize or permit any of its Subsidiaries to, and shall cause any and all of its Representatives not to, directly or indirectly, (A) solicit, initiate, or encourage (including by way of furnishing information), neither or take any other action designed to facilitate, any inquiries or proposals that constitute, or could reasonably be expected to lead to, an Acquiror Acquisition Proposal, (B) engage in negotiations or discussions with any third party concerning, or provide any non-public information to any Person or entity relating to, an Acquiror Acquisition Proposal, (C) enter into any letter of intent, agreement in principle or any acquisition agreement or other similar agreement with respect to any Acquiror Acquisition Proposal (each, an "Acquiror Acquisition Agreement") or (D) make or authorize any statement, recommendation or solicitation in support of any Acquiror Acquisition Proposal. If and only to the extent that (v) the Acquiror Board nor any committee thereof shall: Special Meeting shall not have occurred, (iw) fail to include the Acquiror Board Recommendation in the Proxy Statement/Prospectus when disseminated to the Acquiror Stockholders (and at all times thereafter prior to receipt of the Acquiror Stockholder Approval); (ii) withhold, withdraw, amend, qualify or modify or publicly propose to withhold, withdraw, amend, qualify or modify, in each case in a manner adverse to the Company, the Acquiror Board Recommendation; or (iii) resolve, agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (iii) being referred to herein as a “Change in Acquiror Board Recommendation”).
(c) Notwithstanding any provision of Section 8.04(b), at any time prior to the receipt of the Acquiror Stockholder Approval, but not after, the Acquiror Board may: (i) make a Change in Acquiror Board Recommendation in connection with an Acquiror Intervening Event if the Acquiror Board determines in good faith, after consultation with its based upon the advice of outside legal counsel, that failure it is necessary to do so would be inconsistent in order to act in a manner consistent with its fiduciary obligations duties to the Acquiror Shareholders under applicable Law; providedlaw, however, that prior to making such Change in (x) the Acquiror Board Recommendationconcludes in good faith that such Acquiror Acquisition Proposal constitutes a Superior Proposal (as defined below), (Ay) such Acquiror Acquisition Proposal was not solicited by it and did not otherwise result from a breach of this § 5(h), and (z) Acquiror shall provide the Company with provides prior written notice to Company of its intention decision to take such action (specifying in such notice the material terms and conditions of such Superior Proposal and identifying the Person making such Superior Proposal), Acquiror shall be permitted to (1) furnish information with respect to Acquiror and any of its Subsidiaries to such Person pursuant to a customary confidentiality agreement, (2) participate in discussions and negotiations with such Person, (3) subject to first paying all amounts due to Company pursuant to § 7(b) hereof, terminate this agreement in accordance with § 7(a)(v) hereof and enter into an Acquiror Acquisition Agreement and (4) effect a Change in the Acquiror Recommendation; provided, that at least three business days prior to taking any actions set forth in clause (3) Business Days in advance of taking such actionor (4) above, specifying the reasons for the Acquiror Board’s intention (it being understood Board provides Company written notice advising Company that any material development with respect the Acquiror Board is prepared to an conclude that such Acquiror Intervening Event shall require Acquisition Proposal constitutes a new notice), (B) Superior Proposal and during such three business day period Acquiror shall and shall direct its Representatives to negotiate shall have negotiated in good faith with the Company during such three (3) Business Day period, to the extent the Company wishes to negotiate, to enable the Company to propose revisions or modifications to make adjustments in the terms and conditions of this Agreement such that it such Acquiror Acquisition Proposal would permit the Acquiror Board not to make no longer constitute a Change in Acquiror Board Recommendation pursuant to this Section 8.03(b) Superior Proposal and (C) at the end of following such three (3) Business Day periodnegotiations, the Acquiror Board shall consider concludes in good faith that such Acquiror Acquisition Proposal is reasonably likely to result in a Superior Proposal.
(iii) For purposes of this Agreement, a "Superior Proposal" means any revisions proposal made by a third party (including any Acquiror Acquisition Proposal made by a Person referenced in § 5(h)(i) hereof) (A) to acquire, directly or modifications indirectly, including pursuant to a tender offer, exchange offer, merger, consolidation, business combination, recapitalization, liquidation, sale, lease, exchange, transfer or other disposition (including a contribution to a joint venture), dissolution or similar transaction, for consideration consisting of cash and/or securities, 100% of the shares of Acquiror's capital stock or 100% of the net revenues, net income or assets of Acquiror and its Subsidiaries, taken as a whole and (B) which is otherwise on terms which the Acquiror Board determines in its good faith judgment (based upon the advice of a financial advisor of nationally recognized reputation and outside counsel), taking into account, among other things, all legal, financial, regulatory and other aspects of the proposal and the Person making the proposal, that the proposal, (i) if consummated would result in a transaction that is more favorable to the terms Acquiror Shareholders from a financial point of this Agreement proposed view than the Merger and the other transactions contemplated hereby and (ii) is reasonably capable of being completed, including to the extent required, financing which is then committed or which, in writing by the Company, and determine in good faith, after consultation with its outside legal counsel and taking into account such revisions or modifications, whether faith judgment of the Acquiror Board’s failure to make a Change in Acquiror Board Recommendation would continue to be inconsistent with its fiduciary duties under applicable Law, is reasonably capable of being obtained by such third party.
(div) Except as expressly permitted by this § 5(h), the Acquiror Board may not withdraw or modify, or propose to withdraw or modify, in a manner adverse to Company, the Acquiror Recommendation (collectively, a "Change in the Acquiror Recommendation").
(v) In addition to the obligations of Acquiror set forth in paragraphs (i), (ii), (iv) and (v) of this § 5(h), Acquiror shall immediately advise Company orally and in writing of any request for information or of any Acquiror Acquisition Proposal, the material terms and conditions of such request or Acquiror Acquisition Proposal and the identity of the Person making such request or Acquiror Acquisition Proposal. Acquiror will keep Company informed of the status and details (including amendments or proposed amendments) of any such request or Acquiror Acquisition Proposal.
(vi) Nothing contained in this Section 8.04 § 5(h) shall prohibit Acquiror or the Acquiror Board or any committee thereof from: (i) from taking and disclosing to the stockholders of Acquiror its shareholders a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or making a statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9 promulgated under the Exchange Act (or any similar communication to shareholders in connection with the making or amendment of a tender offer or exchange offer); (ii) from making any disclosure to if, in the good faith judgment of the Acquiror Stockholders if the Acquiror Board determines in good faithBoard, after consultation with its outside legal counsel, that failure so to do so disclose would be inconsistent with its fiduciary obligations under applicable Lawlaw; or (iii) making provided, however, any “stop-look-and-listen” communication such disclosure relating to its stockholders pursuant an Acquiror Acquisition Proposal shall be deemed to Rule 14d-9(f) promulgated under be a Change in the Exchange Act (or any similar communications to its stockholders)Acquiror Recommendation unless the Acquiror Board reaffirms the Acquiror Recommendation in such disclosure.
Appears in 1 contract
Samples: Merger Agreement (Infonautics Inc)
Acquiror Exclusivity. (ai) During the Interim Period, neither Acquiror nor Merger Sub shall take, nor shall they permit any of their respective Affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any Person (other than the Company and/or any of its Affiliates), concerning, relating to or which is intended to give rise to or result in, any offer, inquiry, proposal or indication of interest, whether written or oral, relating to any Business Combination other than with the Company, the Company Stockholders and their respective Affiliates and Representatives (a “Business Combination Proposal”). Each of Acquiror and Merger Sub shall, and each shall cause its respective Affiliates Subsidiaries and Representatives to, immediately cease and terminate any existing solicitation, initiation, encouragement, activity, discussion or negotiation with any Persons conducted heretofore by Acquiror, its Subsidiaries or any of its Representatives with respect to any proposed, potential or contemplated Acquiror Acquisition Proposal the consummation of which would be reasonably expected to (x) result in a material delay in the Effective Time or (y) materially and adversely impact the likelihood of obtaining any Required Company Consent or Required Acquiror Consent other than those the failures to obtain would not result in either a Company Material Adverse Effect or a Acquiror Material Adverse Effect (a "PROHIBITED ACQUIROR ACQUISITION PROPOSAL").
(ii) From and after the date hereof, Acquiror will notify the Company of any Acquiror Acquisition Proposal of which notice is given to the Acquiror Board. Such notice to the Company will be made promptly after such notice to the Acquiror Board, but will be conditional upon an appropriate confidentiality Agreement. Without the prior written consent of the Company, Acquiror will not authorize or permit any of its Subsidiaries to, and shall cause any and all existing of its Representatives not to, directly or indirectly, (A) solicit, initiate, or encourage any inquiries or proposals that constitute, or could reasonably be expected to lead to, a Prohibited Acquiror Acquisition Proposal, or (B) engage in negotiations or discussions or negotiations with any Person conducted prior Acquiror Third Party concerning, or provide any nonpublic information to the date hereof any person or entity relating to, a Prohibited Acquiror Acquisition Proposal, or (C) enter into any letter of intent, agreement in principle or any acquisition agreement or other similar agreement with respect to a Business Combination any Prohibited Acquiror Acquisition Proposal.
(b; PROVIDED, HOWEVER, that nothing contained in thisss.5(i)(ii) Except as set forth in Section 8.04(c), neither shall prevent Acquiror or the Acquiror Board nor any committee thereof shall: (i) fail to include the Acquiror Board Recommendation in the Proxy Statement/Prospectus when disseminated to the Acquiror Stockholders (and at all times thereafter from, prior to receipt of the Requisite Stockholder Approval of the Acquiror Stockholders, furnishing nonpublic information to, or entering into discussions or negotiations with, any Acquiror Third Party in connection with an unsolicited, bona fide written proposal for a Prohibited Acquiror Acquisition Proposal by such Acquiror Third Party, if and only to the extent that (1) such Acquiror Third Party has made a written proposal to the Acquiror Board to consummate a Prohibited Acquiror Acquisition Proposal, (2) the Acquiror Board determines in good faith, based upon the advice of a financial advisor of nationally recognized reputation, that such Prohibited Acquiror Acquisition Proposal is reasonably capable of being completed on substantially the terms proposed, and would, if consummated, result in a transaction that would provide greater value to the holders of the Acquiror Shares than the transaction contemplated by this Agreement (an "ACQUIROR SUPERIOR PROPOSAL"), (3) the failure to take such action would, in the reasonable good faith judgment of the Acquiror Board, based upon a written opinion of Acquiror's outside legal counsel, be a violation of its fiduciary duties to the Acquiror's stockholders under applicable law, and (4) prior to furnishing such nonpublic information to, or entering into discussions or negotiations with, such Person, the Acquiror Board receives from such Person an executed confidentiality agreement with material terms no less favorable to Acquiror than those contained in the Confidentiality Agreement. Acquiror agrees not to release any Acquiror Third Party from, or waive any provision of, any standstill agreement to which it is a party or any confidentiality agreement between it and another Person who has made, or who may reasonably be considered likely to make, a Prohibited Acquiror Acquisition Proposal, unless the failure to take such action would, in the reasonable good faith judgment of the Acquiror Board, based upon the written opinion of Acquiror's outside legal counsel, be a violation of its fiduciary duties to the Acquiror's stockholders under applicable law and such action is taken prior to receipt of the Requisite Stockholder Approval); Approval of the Acquiror Stockholders. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding sentence by any director or officer of Acquiror or any of its Subsidiaries or any investment bank, financial advisor, attorney, accountant or other representative of Acquiror or any of its Subsidiaries shall be deemed to be a breach of thisss.5(i)(ii) by Acquiror. A Acquiror Acquisition Proposal shall be deemed a Prohibited Acquiror Acquisition Proposal at the time (iiand not before) withholdthe Acquiror Board is first notified of such Acquiror Acquisition Proposal, withdrawand at any time that the Acquiror Board is notified of a significant development with respect to such Acquiror Acquisition Proposal, amendunless the Acquiror Board in good faith determines that such Acquiror Acquisition Proposal is not, qualify and is not reasonably likely to become, a Prohibited Parent Acquisition Proposal.
(iii) Acquiror shall notify the Company promptly after receipt by Acquiror or modify Acquiror's knowledge of the receipt by any of its Representatives of any Prohibited Acquiror Acquisition Proposal or publicly propose any request for non-public information in connection with a Prohibited Acquiror Acquisition Proposal or for access to withholdthe properties, withdrawbooks or records of Acquiror by any Person that informs such party that it is considering making or has made a Prohibited Acquiror Acquisition Proposal. Such notice shall be made orally and in writing and shall indicate the identity of the offeror and the terms and conditions of such proposal, amend, qualify inquiry or contact. Acquiror shall keep the Company informed of the status (including any change to the material terms) of any such Prohibited Acquiror Acquisition Proposal or request for nonpublic information.
(iv) The Acquiror Board may not withdraw or modify, in each case or propose to withdraw or modify, in a manner adverse to the Company, the approval or recommendation by the Acquiror Board Recommendation; of this Agreement or (iii) resolvethe Merger unless, agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (iii) being referred to herein as a “Change in Acquiror Board Recommendation”).
(c) Notwithstanding any provision of Section 8.04(b), at any time prior to following the receipt of a Acquiror Superior Proposal but prior to receipt of the Requisite Stockholder Approval of the Acquiror Stockholder Approvalstockholders, but not after, in the reasonable good faith judgment of the Acquiror Board may: (i) make a Change in Acquiror Board Recommendation in connection with an Acquiror Intervening Event if Board, based upon the Acquiror Board determines in good faith, after consultation with its written opinion of Acquiror's outside legal counsel, that the failure to do so would be inconsistent with its fiduciary obligations under applicable Law; provided, however, that prior to making such Change in Acquiror Board Recommendation, (A) Acquiror shall provide the Company with written notice a violation of its intention to take such action at least three (3) Business Days in advance of taking such action, specifying the reasons for the Acquiror Board’s intention 's fiduciary duties to the Acquiror's stockholders under applicable law; PROVIDED, HOWEVER, that the Acquiror Board shall submit the Merger to the Acquiror stockholders for adoption and approval, whether or not the Acquiror Board at any time subsequent to the date hereof determines that this Agreement is no longer advisable or recommends that the stockholders of the Acquiror reject the Merger or otherwise modifies or withdraws its recommendation. Unless the Acquiror Board has withdrawn its recommendation of the Merger in compliance herewith, Acquiror shall use its best efforts to solicit from the Acquiror stockholders proxies in favor of the adoption and approval of the Merger and to secure the vote or consent of the Acquiror's stockholders required by Nasdaq and the Delaware General Corporation Law.
(it being understood that v) Prior to taking any material development action with respect to an a Acquiror Intervening Event shall require Acquisition Proposal which is not a new noticeProhibited Acquiror Acquisition Proposal equivalent to those permitted by clauses (A), (B) Acquiror shall and shall direct its Representatives to negotiate in good faith with the Company during such three (3) Business Day period, to the extent the Company wishes to negotiate, to enable the Company to propose revisions or modifications to the terms of this Agreement such that it would permit the Acquiror Board not to make a Change in Acquiror Board Recommendation pursuant to this Section 8.03(b) and (C) at of ss.5(i)(ii), Acquiror shall notify each Acquiror Third Party which is the end object of or a party to such three (3) Business Day period, action of the limitation on Prohibited Acquiror Board shall consider Acquisition Proposals set forth in good faith any revisions or modifications to the terms of this Agreement proposed in writing by the Companyss.5(i), and determine Acquiror shall not enter into any letter of intent, agreement in good faith, after consultation with its outside legal counsel and taking into account such revisions or modifications, whether the Acquiror Board’s failure to make a Change in Acquiror Board Recommendation would continue to be inconsistent with its fiduciary duties under applicable Law.
(d) Nothing contained in this Section 8.04 shall prohibit Acquiror or the Acquiror Board principle or any committee thereof from: (i) taking and disclosing acquisition agreement or other similar agreement with respect to any Acquiror Acquisition Proposal unless such letter or agreement includes a covenant of the stockholders of applicable Acquiror Third Party not to take any action which would cause such Acquiror Acquisition Proposal to become a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or making a statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9 promulgated under the Exchange Act (or any similar communication to shareholders in connection with the making or amendment of a tender offer or exchange offer); (ii) making any disclosure to the Prohibited Acquiror Stockholders if the Acquiror Board determines in good faith, after consultation with its outside legal counsel, that failure to do so would be inconsistent with its fiduciary obligations under applicable Law; or (iii) making any “stop-look-and-listen” communication to its stockholders pursuant to Rule 14d-9(f) promulgated under the Exchange Act (or any similar communications to its stockholders)Acquisition Proposal.
Appears in 1 contract
Samples: Merger Agreement (Netrix Corp)
Acquiror Exclusivity. (ai) During the Interim Period, neither Acquiror nor Merger Sub shall take, nor shall they permit any of their respective Affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any Person (other than the Company and/or any of its Affiliates), concerning, relating to or which is intended to give rise to or result in, any offer, inquiry, proposal or indication of interest, whether written or oral, relating to any Business Combination other than with the Company, the Company Stockholders and their respective Affiliates and Representatives (a “Business Combination Proposal”). Each of Acquiror and Merger Sub shall, and each shall cause its respective Affiliates Subsidiaries and Representatives to, immediately cease and terminate any existing solicitation, initiation, encouragement, activity, discussion or negotiation with any Persons conducted heretofore by Acquiror, its Subsidiaries or any of its Representatives with respect to any proposed, potential or contemplated Acquiror Acquisition Proposal the consummation of which would be reasonably expected to (x) result in a material delay in the Effective Time or (y) materially and adversely impact the likelihood of obtaining any Required Company Consent or Required Acquiror Consent other than those the failures to obtain would not result in either a Company Material Adverse Effect or a Acquiror Material Adverse Effect (a "Prohibited Acquiror Acquisition Proposal").
(ii) From and after the date hereof, Acquiror will notify the Company of any Acquiror Acquisition Proposal of which notice is given to the Acquiror Board. Such notice to the Company will be made promptly after such notice to the Acquiror Board, but will be conditional upon an appropriate confidentiality Agreement. Without the prior written consent of the Company, Acquiror will not authorize or permit any of its Subsidiaries to, and shall cause any and all existing of its Representatives not to, directly or indirectly, (A) solicit, initiate, or encourage any inquiries or proposals that constitute, or could reasonably be expected to lead to, a Prohibited Acquiror Acquisition Proposal, or (B) engage in negotiations or discussions or negotiations with any Person conducted prior Acquiror Third Party concerning, or provide any nonpublic information to the date hereof any person or entity relating to, a Prohibited Acquiror Acquisition Proposal, or (C) enter into any letter of intent, agreement in principle or any acquisition agreement or other similar agreement with respect to a Business Combination any Prohibited Acquiror Acquisition Proposal.
(b; provided, however, that nothing contained in this Section 5(i)(ii) Except as set forth in Section 8.04(c), neither shall prevent Acquiror or the Acquiror Board nor any committee thereof shall: (i) fail to include the Acquiror Board Recommendation in the Proxy Statement/Prospectus when disseminated to the Acquiror Stockholders (and at all times thereafter from, prior to receipt of the Requisite Stockholder Approval of the Acquiror Stockholders, furnishing nonpublic information to, or entering into discussions or negotiations with, any Acquiror Third Party in connection with an unsolicited, bona fide written proposal for a Prohibited Acquiror Acquisition Proposal by such Acquiror Third Party, if and only to the extent that (1) such Acquiror Third Party has made a written proposal to the Acquiror Board to consummate a Prohibited Acquiror Acquisition Proposal, (2) the Acquiror Board determines in good faith, based upon the advice of a financial advisor of nationally recognized reputation, that such Prohibited Acquiror Acquisition Proposal is reasonably capable of being completed on substantially the terms proposed, and would, if consummated, result in a transaction that would provide greater value to the holders of the Acquiror Shares than the transaction contemplated by this Agreement (an "Acquiror Superior Proposal"), (3) the failure to take such action would, in the reasonable good faith judgment of the Acquiror Board, based upon a written opinion of Acquiror's outside legal counsel, be a violation of its fiduciary duties to the Acquiror's stockholders under applicable law, and (4) prior to furnishing such nonpublic information to, or entering into discussions or negotiations with, such Person, the Acquiror Board receives from such Person an executed confidentiality agreement with material terms no less favorable to Acquiror than those contained in the Confidentiality Agreement. Acquiror agrees not to release any Acquiror Third Party from, or waive any provision of, any standstill agreement to which it is a party or any confidentiality agreement between it and another Person who has made, or who may reasonably be considered likely to make, a Prohibited Acquiror Acquisition Proposal, unless the failure to take such action would, in the reasonable good faith judgment of the Acquiror Board, based upon the written opinion of Acquiror's outside legal counsel, be a violation of its fiduciary duties to the Acquiror's stockholders under applicable law and such action is taken prior to receipt of the Requisite Stockholder Approval); Approval of the Acquiror Stockholders. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding sentence by any director or officer of Acquiror or any of its Subsidiaries or any investment bank, financial advisor, attorney, accountant or other representative of Acquiror or any of its Subsidiaries shall be deemed to be a breach of this Section 5(i)(ii) by Acquiror. A Acquiror Acquisition Proposal shall be deemed a Prohibited Acquiror Acquisition Proposal at the time (iiand not before) withholdthe Acquiror Board is first notified of such Acquiror Acquisition Proposal, withdrawand at any time that the Acquiror Board is notified of a significant development with respect to such Acquiror Acquisition Proposal, amendunless the Acquiror Board in good faith determines that such Acquiror Acquisition Proposal is not, qualify and is not reasonably likely to become, a Prohibited Parent Acquisition Proposal.
(iii) Acquiror shall notify the Company promptly after receipt by Acquiror or modify Acquiror's knowledge of the receipt by any of its Representatives of any Prohibited Acquiror Acquisition Proposal or publicly propose any request for non-public information in connection with a Prohibited Acquiror Acquisition Proposal or for access to withholdthe properties, withdrawbooks or records of Acquiror by any Person that informs such party that it is considering making or has made a Prohibited Acquiror Acquisition Proposal. Such notice shall be made orally and in writing and shall indicate the identity of the offeror and the terms and conditions of such proposal, amend, qualify inquiry or contact. Acquiror shall keep the Company informed of the status (including any change to the material terms) of any such Prohibited Acquiror Acquisition Proposal or request for nonpublic information.
(iv) The Acquiror Board may not withdraw or modify, in each case or propose to withdraw or modify, in a manner adverse to the Company, the approval or recommendation by the Acquiror Board Recommendation; of this Agreement or (iii) resolvethe Merger unless, agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (iii) being referred to herein as a “Change in Acquiror Board Recommendation”).
(c) Notwithstanding any provision of Section 8.04(b), at any time prior to following the receipt of a Acquiror Superior Proposal but prior to receipt of the Requisite Stockholder Approval of the Acquiror Stockholder Approvalstockholders, but not after, in the reasonable good faith judgment of the Acquiror Board may: (i) make a Change in Acquiror Board Recommendation in connection with an Acquiror Intervening Event if Board, based upon the Acquiror Board determines in good faith, after consultation with its written opinion of Acquiror's outside legal counsel, that the failure to do so would be inconsistent with its a violation of the Acquiror Board's fiduciary obligations duties to the Acquiror's stockholders under applicable Lawlaw; provided, however, that prior to making such Change in the Acquiror Board Recommendationshall submit the Merger to the Acquiror stockholders for adoption and approval, (A) whether or not the Acquiror Board at any time subsequent to the date hereof determines that this Agreement is no longer advisable or recommends that the stockholders of the Acquiror reject the Merger or otherwise modifies or withdraws its recommendation. Unless the Acquiror Board has withdrawn its recommendation of the Merger in compliance herewith, Acquiror shall provide the Company with written notice of use its intention best efforts to take such action at least three (3) Business Days in advance of taking such action, specifying the reasons for solicit from the Acquiror Board’s intention stockholders proxies in favor of the adoption and approval of the Merger and to secure the vote or consent of the Acquiror's stockholders required by Nasdaq and the Delaware General Corporation Law.
(it being understood that v) Prior to taking any material development action with respect to an a Acquiror Intervening Event shall require Acquisition Proposal which is not a new noticeProhibited Acquiror Acquisition Proposal equivalent to those permitted by clauses (A), (B) Acquiror shall and shall direct its Representatives to negotiate in good faith with the Company during such three (3) Business Day period, to the extent the Company wishes to negotiate, to enable the Company to propose revisions or modifications to the terms of this Agreement such that it would permit the Acquiror Board not to make a Change in Acquiror Board Recommendation pursuant to this Section 8.03(b) and (C) at of Section 5(i)(ii), Acquiror shall notify each Acquiror Third Party which is the end object of or a party to such three (3) Business Day period, action of the limitation on Prohibited Acquiror Board shall consider in good faith any revisions or modifications to the terms of this Agreement proposed in writing by the Company, and determine in good faith, after consultation with its outside legal counsel and taking into account such revisions or modifications, whether the Acquiror Board’s failure to make a Change in Acquiror Board Recommendation would continue to be inconsistent with its fiduciary duties under applicable Law.
(d) Nothing contained Acquisition Proposals set forth in this Section 8.04 5(i), and Acquiror shall prohibit Acquiror or the Acquiror Board not enter into any letter of intent, agreement in principle or any committee thereof from: (i) taking and disclosing acquisition agreement or other similar agreement with respect to any Acquiror Acquisition Proposal unless such letter or agreement includes a covenant of the stockholders of applicable Acquiror Third Party not to take any action which would cause such Acquiror Acquisition Proposal to become a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or making a statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9 promulgated under the Exchange Act (or any similar communication to shareholders in connection with the making or amendment of a tender offer or exchange offer); (ii) making any disclosure to the Prohibited Acquiror Stockholders if the Acquiror Board determines in good faith, after consultation with its outside legal counsel, that failure to do so would be inconsistent with its fiduciary obligations under applicable Law; or (iii) making any “stop-look-and-listen” communication to its stockholders pursuant to Rule 14d-9(f) promulgated under the Exchange Act (or any similar communications to its stockholders)Acquisition Proposal.
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Acquiror Exclusivity. (a) During the Interim Period, neither Acquiror nor Merger Sub shall take, nor shall they permit any of their respective Affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any Person (other than the Company and/or any of its Affiliates), concerning, relating to or which is intended to give rise to or result in, any offer, inquiry, proposal or indication of interest, whether written or oral, relating to any Business Combination other than with the Company, the Company Stockholders Shareholders and their respective Affiliates and Representatives (a “Business Combination Proposal”). Each of Acquiror and Merger Sub shall, and each shall cause its respective Affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any Person conducted prior to the date hereof with respect to a Business Combination Proposal.
(b) Except as set forth in Section 8.04(c), neither the Acquiror Board nor any committee thereof shall: (i) fail to include the Acquiror Board Recommendation in the Proxy Statement/Prospectus when disseminated to the Acquiror Stockholders (and at all times thereafter prior to receipt of the Acquiror Stockholder Approval)) or fail to publicly reaffirm the Acquiror Board Recommendation within five (5) Business Days after requested by the Company; (ii) withhold, withdraw, amend, qualify or modify or publicly propose to withhold, withdraw, amend, qualify or modify, in each case in a manner adverse to the Company, the Acquiror Board Recommendation; (iii) adopt, approve, recommend or declare advisable any Business Combination Proposal; or (iiiiv) resolve, agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (iii) being referred to herein as a “Change in Acquiror Board Recommendation”).
(c) Notwithstanding any provision of Section 8.04(b), at any time prior to the receipt of the Acquiror Stockholder Approval, but not after, the Acquiror Board may: (i) make a Change in Acquiror Board Recommendation in connection with an Acquiror Intervening Event if the Acquiror Board determines in good faith, after consultation with its outside legal counsel, that failure to do so would be inconsistent with its fiduciary obligations under applicable Law; provided, however, that prior to making such Change in Acquiror Board Recommendation, (A) Acquiror shall provide the Company with written notice of its intention to take such action at least three (3) Business Days in advance of taking such action, specifying the reasons for the Acquiror Board’s intention (it being understood that any material development with respect to an Acquiror Intervening Event shall require a new notice), (B) Acquiror shall and shall direct its Representatives to negotiate in good faith with the Company during such three (3) Business Day period, to the extent the Company wishes to negotiate, to enable the Company to propose revisions or modifications to the terms of this Agreement such that it would permit the Acquiror Board not to make a Change in Acquiror Board Recommendation pursuant to this Section 8.03(b) 8.04 and (C) at the end of such three (3) Business Day period, the Acquiror Board shall consider in good faith any revisions or modifications to the terms of this Agreement proposed in writing by the Company, and determine in good faith, after consultation with its outside legal counsel and taking into account such revisions or modifications, whether the Acquiror Board’s failure to make a Change in Acquiror Board Recommendation would continue to be inconsistent with its fiduciary duties under applicable Law.
(d) Nothing contained in this Section 8.04 shall prohibit Acquiror or the Acquiror Board or any committee thereof from: (i) taking and disclosing to the stockholders of Acquiror a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or making a statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9 promulgated under the Exchange Act (or any similar communication to shareholders in connection with the making or amendment of a tender offer or exchange offer); (ii) making any disclosure to the Acquiror Stockholders if the Acquiror Board determines in good faith, after consultation with its outside legal counsel, that failure to do so would be inconsistent with its fiduciary obligations under applicable Law; or (iii) making any “stop-look-and-listen” communication to its stockholders pursuant to Rule 14d-9(f) promulgated under the Exchange Act (or any similar communications to its stockholders).
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Samples: Merger Agreement (Property Solutions Acquisition Corp.)
