Acquisition Proposals; Board Recommendation. (a) The Company agrees that it shall not, nor shall it permit any Company Subsidiary to, nor shall it authorize or knowingly permit any officer, director, employee, investment banker, attorney, accountant, agent or other advisor or representative of the Company or any Company Subsidiary, directly or indirectly, to (i) solicit or initiate the submission of any Acquisition Proposal, (ii) participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to, or take any other action knowingly to facilitate any inquiries or the making of any proposal that constitutes or that would reasonably be expected to lead to any Acquisition Proposal, (iii) grant any waiver or release under any standstill or similar agreement with respect to any class of the Company's equity securities or (iv) enter into any agreement with respect to any Acquisition Proposal; provided, however, that if the Company receives an unsolicited Acquisition Proposal from a Third Party that the Company's Board of Directors or the Special Committee determines in good faith is or could reasonably be expected to lead to the delivery of a Superior Proposal from that Third Party, the Company may, subject to compliance with the other provisions of this Section 6.3, furnish information to, and engage in discussions and negotiations with, such Third Party with respect to its Acquisition Proposal ("Permitted Actions"). Notwithstanding the foregoing, the Board of Directors shall not take any Permitted Actions unless the Company provides Acquiror with reasonable advance notice thereof. (b) Except as permitted by this Section 6.3(b), neither the Board of Directors of the Company, the Special Committee nor any committee thereof shall amend, withdraw, modify, change, condition or qualify in any manner adverse to Acquiror, the Company Recommendation (it being understood and agreed that a communication by the Board of Directors of the Company or the Special Committee to the Company Stockholders pursuant to Rule 14d-9(f) of the Exchange Act, or any similar communication to the Company Stockholders in connection with the making or amendment of a tender offer or exchange offer, shall not be deemed to constitute a withdrawal, modification, amendment, condition or qualification of the Company Recommendation for all purposes of this Agreement, including this Section 6.3 and Section 10.1(e)). Notwithstanding the foregoing, in the event that the Board of Directors of the Company or the Special Committee takes the actions set forth in Section 6.3(e), the Board of Directors of the Company or the Special Committee may (i) withdraw or modify in any manner adverse to Acquiror, the Company Recommendation and (ii) approve or recommend, or propose to approve or recommend, any Acquisition Proposal. (c) Unless the Company's Board of Directors or the Special Committee has previously withdrawn, or is concurrently therewith withdrawing, the Company Recommendation in accordance with this Section 6.3, neither the Company's Board of Directors nor any committee thereof shall recommend any Acquisition Proposal to the Company Stockholders. Notwithstanding the foregoing, nothing contained in this Section 6.3(c) or elsewhere in this Agreement shall prevent the Company's Board of Directors or the Special Committee from complying with Rule 14e-2 under the Exchange Act with respect to any Acquisition Proposal or making any disclosure required by or otherwise complying with applicable Law. (d) The Company shall notify Acquiror promptly (but in no event later than the next Business Day) after receipt by the Company of any Acquisition Proposal or any request for information relating to the Company or any of its Subsidiaries in connection with an Acquisition Proposal or for access to the properties, books or records of the Company or any of its Subsidiaries or any request for a waiver or release under any standstill or similar agreement, by any Person that informs the Board of Directors of the Company or such Subsidiary that it is considering making, or has made an Acquisition Proposal; provided, however, that prior to participating in any discussions or negotiations or furnishing any such information, the Company shall receive from such Person an executed confidentiality agreement on terms that are not materially less favorable to the Company than the Confidentiality Agreement. The notice shall indicate the terms and conditions of the proposal or request and the identity of the Person making it, and the Company will promptly notify Acquiror of any material modification of or material amendment to any Acquisition Proposal (and the terms of such modification or amendment); provided, however, that, without limiting what changes may be material, any change in the consideration to be paid with respect to the Acquisition Proposal shall be deemed to be a material modification or a material amendment. The Company shall keep Acquiror informed, on a reasonably current basis, of the status of any negotiations, discussions and documents with respect to such Acquisition Proposal or request. (e) Holding, Acquiror or the Company may terminate this Agreement, if the Company's Board of Directors or the Special Committee, after consultation with its financial and legal advisors, shall have determined (i) to approve or recommend an Acquisition Proposal after concluding that the Acquisition Proposal constitutes a Superior Proposal and (ii) to enter into a binding agreement concerning the Acquisition Proposal; provided, however, that the Company may not exercise its right to terminate under this Section 6.3(e), unless (1) the Company shall have provided to Acquiror at least three (3) Business Days' prior written notice that its Board of Directors or the Special Committee has authorized the termination and intends to terminate this Agreement pursuant to this Section 6.3(e), specifying the material terms and conditions of the Acquisition Proposal, and (2) Acquiror does not make, within three (3) Business Days of delivery of the notice, an offer such that a majority of the disinterested members of the Company's Board of Directors or the Special Committee determines that the foregoing Acquisition Proposal no longer constitutes a Superior Proposal. In connection with the forgoing, the Company agrees that it will not enter into an agreement which binds the Company with respect to such an Acquisition Proposal unless (x) the Company simultaneously delivers to Acquiror the notice contemplated by the foregoing proviso, (y) such agreement is not binding on the Company until three (3) Business Days after delivery of the notice set forth in this Section 6.3(e) and (z) the Company has the right under such agreement to unilaterally terminate such agreement prior to the termination of this Agreement without any payment or other liability or obligation of any kind. (f) The Company shall immediately cease, and shall cause any party acting on its behalf to cease, and cause to be terminated any existing discussions or negotiations with any Third Party conducted heretofore with respect to any of the foregoing and shall request any such parties in possession of confidential information about the Company or its Subsidiaries that was furnished by or on behalf of the Company or its Subsidiaries to return or destroy all such information in the possession of any such party or the agent or advisor of any such party.
Appears in 12 contracts
Sources: Agreement and Plan of Merger (Cb Richard Ellis Services Inc), Agreement and Plan of Merger (Wirta Raymond E), Agreement and Plan of Merger (Cbre Holding Inc)
Acquisition Proposals; Board Recommendation. (a) The Company agrees that it shall not, nor shall it permit any Company Subsidiary to, nor shall it authorize or knowingly permit any officer, director, employee, investment banker, attorney, accountant, agent or other advisor or representative of the Company or any Company Subsidiary, directly or indirectly, to (i) solicit or initiate the submission of any Acquisition Proposal, (ii) participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to, or take any other action knowingly to facilitate any inquiries or the making of any proposal that constitutes or that would reasonably be expected to lead to any Acquisition Proposal, (iii) grant any waiver or release under any standstill or similar agreement with respect to any class of the Company's equity securities or (iv) enter into any agreement with respect to any Acquisition Proposal; provided, however, that if the Company receives an unsolicited Acquisition Proposal from a Third Party that the Company's Board of Directors or the Special Committee determines in good faith is or could reasonably be expected to lead to the delivery of a Superior Proposal from that Third Party, the Company may, subject to compliance with the other provisions of this Section 6.3, furnish information to, and engage in discussions and negotiations with, such Third Party with respect to its Acquisition Proposal ("Permitted Actions"). Notwithstanding the foregoing, the Board of Directors shall not take any Permitted Actions unless the Company provides Acquiror with reasonable advance notice thereof.
(b) Except as permitted by this Section 6.3(b), neither the Board of Directors of the Company, the Special Committee nor any committee thereof shall amend, withdraw, modify, change, condition or qualify in any manner adverse to Acquiror, the Company Recommendation (it being understood and agreed that a communication by the Board of Directors of the Company or the Special Committee to the Company Stockholders pursuant to Rule 14d-9(f) of the Exchange Act, or any similar communication to the Company Stockholders in connection with the making or amendment of a tender offer or exchange offer, shall not be deemed to constitute a withdrawal, modification, amendment, condition or qualification of the Company Recommendation for all purposes of this Agreement, including this Section 6.3 and Section 10.1(e)). Notwithstanding the foregoing, in the event that the Board of Directors directors of the Company or the Special Committee takes the actions set forth in Section 6.3(e), the Board of Directors of the Company or the Special Committee may (i) withdraw or modify in any manner adverse to Acquiror, the Company Recommendation and (ii) approve or recommend, or propose to approve or recommend, any Acquisition Proposal.
(c) Unless the Company's Board of Directors or the Special Committee has previously withdrawn, or is concurrently therewith withdrawing, the Company Recommendation in accordance with this Section 6.3, neither the Company's Board of Directors nor any committee thereof shall recommend any Acquisition Proposal to the Company Stockholders. Notwithstanding the foregoing, nothing contained in this Section 6.3(c) or elsewhere in this Agreement shall prevent the Company's Board of Directors or the Special Committee from complying with Rule 14e-2 under the Exchange Act with respect to any Acquisition Proposal or making any disclosure required by or otherwise complying with applicable Law.
(d) The Company shall notify Acquiror promptly (but in no event later than the next Business Day) after receipt by the Company of any Acquisition Proposal or any request for information relating to the Company or any of its Subsidiaries in connection with an Acquisition Proposal or for access to the properties, books or records of the Company or any of its Subsidiaries or any request for a waiver or release under any standstill or similar agreement, by any Person that informs the Board of Directors of the Company or such Subsidiary that it is considering making, or has made an Acquisition Proposal; provided, however, that prior to participating in any discussions or negotiations or furnishing any such information, the Company shall receive from such Person an executed confidentiality agreement on terms that are not materially less favorable to the Company than the Confidentiality Agreement. The notice shall indicate the terms and conditions of the proposal or request and the identity of the Person making it, and the Company will promptly notify Acquiror of any material modification of or material amendment to any Acquisition Proposal (and the terms of such modification or amendment); provided, however, that, without limiting what changes may be material, any change in the consideration to be paid with respect to the Acquisition Proposal shall be deemed to be a material modification or a material amendment. The Company shall keep Acquiror informed, on a reasonably current basis, of the status of any negotiations, discussions and documents with respect to such Acquisition Proposal or request.
(e) Holding, Acquiror or the Company may terminate this Agreement, if the Company's Board of Directors or the Special Committee, after consultation with its financial and legal advisors, shall have determined (i) to approve or recommend an Acquisition Proposal after concluding that the Acquisition Proposal constitutes a Superior Proposal and (ii) to enter into a binding agreement concerning the Acquisition Proposal; provided, however, that the Company may not exercise its right to terminate under this Section 6.3(e), unless (1) the Company shall have provided to Acquiror at least three (3) Business Days' prior written notice that its Board of Directors or the Special Committee has authorized the termination and intends to terminate this Agreement pursuant to this Section 6.3(e), specifying the material terms and conditions of the Acquisition Proposal, and (2) Acquiror does not make, within three (3) Business Days of delivery of the notice, an offer such that a majority of the disinterested members of the Company's Board of Directors or the Special Committee determines that the foregoing Acquisition Proposal no longer constitutes a Superior Proposal. In connection with the forgoing, the Company agrees that it will not enter into an agreement which binds the Company with respect to such an Acquisition Proposal unless (x) the Company simultaneously delivers to Acquiror the notice contemplated by the foregoing proviso, (y) such agreement is not binding on the Company until three (3) Business Days after delivery of the notice set forth in this Section 6.3(e) and (z) the Company has the right under such agreement to unilaterally terminate such agreement prior to the termination of this Agreement without any payment or other liability or obligation of any kind.
(f) The Company shall immediately cease, and shall cause any party acting on its behalf to cease, and cause to be terminated any existing discussions or negotiations with any Third Party conducted heretofore with respect to any of the foregoing and shall request any such parties in possession of confidential information about the Company or its Subsidiaries that was furnished by or on behalf of the Company or its Subsidiaries to return or destroy all such information in the possession of any such party or the agent or advisor of any such party.
Appears in 3 contracts
Sources: Merger Agreement (Koll Donald M), Merger Agreement (White W Brett), Merger Agreement (Wirta Raymond E)
Acquisition Proposals; Board Recommendation. (a) The Company CITATION agrees that it shall not, nor shall it permit any Company Subsidiary to, nor shall it authorize or knowingly permit any officer, director, employee, investment banker, attorney, accountant, agent or other advisor or representative of the Company or any Company SubsidiaryCITATION, directly or indirectly, to (i) solicit solicit, initiate or initiate knowingly facilitate or encourage the submission of any Acquisition ProposalProposal for CITATION, (ii) participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to, or take any other action knowingly to facilitate any inquiries or the making of any proposal that constitutes or that would reasonably be expected to lead to any an Acquisition ProposalProposal for CITATION, (iii) grant any waiver or release under any standstill or similar agreement with respect to any class of the Company's CITATION equity securities or (iv) enter into any agreement with respect to any Acquisition ProposalProposal for CITATION; provided, however, that if if, at any time prior to receipt of the Company receives an unsolicited Acquisition Proposal from a Third Party that the CompanyCITATION Shareholder Approval, CITATION's Board of Directors or the Special Committee reasonably determines in good faith is or faith, after receipt of written advice from outside counsel and independent financial advisor of CITATION, that failing to take such action could reasonably be expected to be a breach of its fiduciary duties to CITATION's shareholders under applicable law, CITATION may, in response to an Acquisition Proposal for CITATION made after the date of this Agreement which was not solicited by CITATION or its representatives or agents and which did not otherwise result from a breach of this Section 6.2, and which is reasonably likely to lead to the delivery of a Superior Proposal from that Third PartyProposal, the Company may, and subject to compliance with the other provisions of this Section 6.3, 6.2(c) (x) furnish information to, and engage in discussions and negotiations with, such Third Party with respect to CITATION to any person pursuant to a customary confidentiality agreement including customary standstill provisions (as determined by CITATION after consultation with its outside counsel) and (y) participate in negotiations regarding such Acquisition Proposal ("Permitted Actions"). Notwithstanding the foregoing, the Board of Directors shall not take any Permitted Actions unless the Company provides Acquiror with reasonable advance notice thereoffor CITATION.
(b) Except as permitted by this Section 6.3(b), neither Neither the Board of Directors of the Company, the Special Committee CITATION nor any committee thereof shall amend(i) withdraw, or propose publicly to withdraw, in a manner adverse to Cerner, the approval or recommendation by such Board of Directors or such committee of the Merger or this Agreement, (ii) subject to Section 6.2(d), modify, changeor propose publicly to modify, condition or qualify in any a manner adverse to AcquirorCerner, the Company Recommendation (it being understood and agreed that a communication approval or recommendation by the such Board of Directors or such committee of the Company Merger or the Special Committee to the Company Stockholders pursuant to Rule 14d-9(f) of the Exchange Act, or any similar communication to the Company Stockholders in connection with the making or amendment of a tender offer or exchange offer, shall not be deemed to constitute a withdrawal, modification, amendment, condition or qualification of the Company Recommendation for all purposes of this Agreement, including this Section 6.3 and Section 10.1(e)). Notwithstanding the foregoing(iii) approve or recommend, in the event that the Board of Directors of the Company or the Special Committee takes the actions set forth in Section 6.3(e)propose publicly to approve or recommend, the Board of Directors of the Company any Acquisition Proposal for CITATION or the Special Committee may (i) withdraw or modify in any manner adverse to Acquiror, the Company Recommendation and (iiiv) approve or recommend, or propose to approve or recommend, or execute or enter into, any Acquisition Proposal.
(c) Unless letter of intent, agreement in principle, merger agreement, acquisition agreement, option agreement or other similar agreement or propose publicly or agree to do any of the Company's Board of Directors or the Special Committee has previously withdrawn, or is concurrently therewith withdrawing, the Company Recommendation in accordance with this Section 6.3, neither the Company's Board of Directors nor any committee thereof shall recommend foregoing related to any Acquisition Proposal to the Company Stockholdersfor CITATION. Notwithstanding the foregoing, nothing contained in this Section 6.3(c) or elsewhere in this Agreement shall prevent the Company's Board if at any time prior to receipt of Directors or the Special Committee from complying with Rule 14e-2 under the Exchange Act with respect to any Acquisition Proposal or making any disclosure required by or otherwise complying with applicable Law.
(d) The Company shall notify Acquiror promptly (but in no event later than the next Business Day) after receipt by the Company of any Acquisition Proposal or any request for information relating to the Company or any of its Subsidiaries in connection with an Acquisition Proposal or for access to the properties, books or records of the Company or any of its Subsidiaries or any request for a waiver or release under any standstill or similar agreement, by any Person that informs CITATION Shareholder Approval the Board of Directors of the Company or such Subsidiary CITATION determines in good faith, after receipt of written opinions from outside counsel and independent financial advisor of CITATION, that it is considering making, or has made an Acquisition Proposal; provided, however, that prior to participating in any discussions or negotiations or furnishing any such information, the Company shall receive from such Person an executed confidentiality agreement on terms that are not materially less favorable to the Company than the Confidentiality Agreement. The notice shall indicate the terms and conditions of the proposal or request and the identity of the Person making it, and the Company will promptly notify Acquiror of any material modification of or material amendment to any Acquisition Proposal (and the terms of such modification or amendment); provided, however, that, without limiting what changes may be material, any change in the consideration to be paid with respect to the Acquisition Proposal shall be deemed to be a material modification or a material amendment. The Company shall keep Acquiror informed, on a reasonably current basis, of the status of any negotiations, discussions and documents with respect to such Acquisition Proposal or request.
(e) Holding, Acquiror or the Company may terminate this Agreement, if the Company's Board of Directors or the Special Committee, after consultation with its financial and legal advisors, shall have determined (i) to approve or recommend received an Acquisition Proposal after concluding for CITATION that the Acquisition Proposal constitutes a Superior Proposal and (ii) to enter into a binding agreement concerning the Acquisition Proposal; provided, however, that the Company may not exercise its right to terminate under this Section 6.3(e), unless (1) the Company shall have provided to Acquiror at least three (3) Business Days' prior written notice that its Board of Directors or the Special Committee has authorized the termination and intends to terminate this Agreement pursuant to this Section 6.3(e), specifying the material terms and conditions of the Acquisition Proposal, and (2) Acquiror does not make, within three (3) Business Days of delivery of the notice, an offer such that a majority of the disinterested members of the Company's Board of Directors or the Special Committee determines that the foregoing Acquisition Proposal no longer constitutes a Superior Proposal. In connection with the forgoing, the Company agrees that it will not enter into an agreement which binds the Company with respect to such an Acquisition Proposal unless (x) the Company simultaneously delivers to Acquiror the notice contemplated by the foregoing proviso, (y) such agreement is not binding on the Company until three (3) Business Days after delivery of the notice set forth in this Section 6.3(e) and (z) the Company has the right under such agreement to unilaterally terminate such agreement prior to the termination of this Agreement without any payment or other liability or obligation of any kind.
(f) The Company shall immediately cease, and shall cause any party acting on its behalf to cease, and cause to be terminated any existing discussions or negotiations with any Third Party conducted heretofore with respect to any of the foregoing and shall request any such parties in possession of confidential information about the Company or its Subsidiaries that was furnished by or on behalf of the Company or its Subsidiaries to return or destroy all such information in the possession of any such party or the agent or advisor of any such party.Superior
Appears in 2 contracts
Sources: Merger Agreement (Cerner Corp /Mo/), Merger Agreement (Citation Computer Systems Inc)
Acquisition Proposals; Board Recommendation. (a) The Company agrees that it Target shall and shall cause its Subsidiaries and each of its and its Subsidiaries’ affiliates, directors, officers, employees, agents and representatives (including any investment banker, financial advisor, attorney, accountant or other representative retained by Target or any of its Subsidiaries (each a “Target Representative”)) to immediately cease and terminate any and all existing discussions, negotiations or activities with any other parties conducted heretofore (whether currently ongoing or not) with respect to the possibility or consideration of any Acquisition Proposal. Except as otherwise provided in Section 6.12(b), from the date of this Agreement through the Effective Time, Target shall not, nor and shall it permit any Company Subsidiary cause each of its Subsidiaries not to, nor and shall it authorize or knowingly permit any officer, director, employee, investment banker, attorney, accountant, agent or other advisor or representative of the Company or any Company Subsidiaryuse its reasonable best efforts to cause Target Representatives not to, directly or indirectly, to (i) solicit solicit, initiate, knowingly facilitate or initiate knowingly encourage (including by way of furnishing information or assistance), or take any other action designed to solicit, initiate, facilitate or encourage any inquiries or the submission making of any proposal that constitutes, or is reasonably likely to lead to, any Acquisition Proposal, (ii) participate in any discussions discussions, negotiations or negotiations regarding, or furnish to any Person any information with respect to, or take any other action knowingly to facilitate any inquiries or the making of any proposal that constitutes or that would reasonably be expected to lead to communications regarding any Acquisition Proposal, (iii) grant except pursuant to Section 6.3 in connection with and after making a Target Adverse Recommendation Change, make or authorize any waiver statement, recommendation or release under solicitation in support of any standstill or similar agreement with respect to any class of the Company's equity securities Acquisition Proposal or (iv) enter into provide any agreement confidential or nonpublic information or data to any person relating to an Acquisition Proposal with respect to any Acquisition Proposal; providedsuch party.
(i) Notwithstanding the foregoing Section 6.12(a), however, that if the Company receives an unsolicited Acquisition Proposal from a Third Party that the Company's Board of Directors or the Special Committee determines in good faith is or could reasonably be expected to lead prior to the delivery receipt of a Superior Proposal from that Third Partythe Requisite Target Vote, the Company may, subject Target may and may permit its Subsidiaries and Target Representatives to compliance with the other provisions of this Section 6.3, furnish information to, and engage in discussions and negotiations with, or provide any nonpublic information or data to, any person in response to an unsolicited bona fide written Acquisition Proposal by such Third Party person made after the date of this Agreement to the extent that its board of directors concludes in good faith (after receiving the advice of its outside counsel, and with respect to financial matters, its Acquisition Proposal ("Permitted Actions"). Notwithstanding financial advisors) that failure to take such actions would be more likely than not to result in a violation of its fiduciary duties under applicable law; provided, however, that, prior to providing any nonpublic information permitted to be provided pursuant to the foregoing, Target shall have provided notice to Parent of its intention to provide such information, and shall have provided such information to Parent if not previously provided to Parent, and shall have entered into a confidentiality agreement with such third party on terms no less favorable to Target than the Board of Directors Confidentiality Agreement, which confidentiality agreement shall not take provide such person with any Permitted Actions unless the Company provides Acquiror exclusive right to negotiate with reasonable advance notice thereofTarget.
(b) Except as permitted by this Section 6.3(b), neither the Board of Directors of the Company, the Special Committee nor any committee thereof shall amend, withdraw, modify, change, condition or qualify in any manner adverse to Acquiror, the Company Recommendation (it being understood and agreed that a communication by the Board of Directors of the Company or the Special Committee to the Company Stockholders pursuant to Rule 14d-9(f) of the Exchange Act, or any similar communication to the Company Stockholders in connection with the making or amendment of a tender offer or exchange offer, shall not be deemed to constitute a withdrawal, modification, amendment, condition or qualification of the Company Recommendation for all purposes of this Agreement, including this Section 6.3 and Section 10.1(e)). Notwithstanding the foregoing, in the event that the Board of Directors of the Company or the Special Committee takes the actions set forth in Section 6.3(e), the Board of Directors of the Company or the Special Committee may (i) withdraw or modify in any manner adverse to Acquiror, the Company Recommendation and (ii) approve or recommend, or propose to approve or recommend, any Acquisition Proposal.
(c) Unless the Company's Board of Directors or the Special Committee has previously withdrawn, or is concurrently therewith withdrawing, the Company Recommendation in accordance with this Section 6.3, neither the Company's Board of Directors nor any committee thereof shall recommend any Acquisition Proposal to the Company Stockholders. Notwithstanding the foregoing, nothing contained in this Section 6.3(c) or elsewhere in this Agreement shall prevent the Company's Board of Directors or the Special Committee from complying with Rule 14e-2 under the Exchange Act with respect to any Acquisition Proposal or making any disclosure required by or otherwise complying with applicable Law.
(d) The Company Target shall notify Acquiror Parent promptly (but in no event later than the next Business Daytwenty-four (24) hours) after receipt by the Company of any Acquisition Proposal Proposal, or any request for nonpublic information relating to the Company Target or any of its Subsidiaries that could reasonably be expected to lead to an Acquisition Proposal, or any inquiry from any person seeking to have discussions, negotiations or other communications relating to a possible Acquisition Proposal. Such notice shall, if made orally, be confirmed in connection with an writing, and shall indicate the identity of the person making the Acquisition Proposal, inquiry or request and the material terms and conditions of any inquiries, requests, proposals or offers (including a copy thereof if in writing and any related documentation or correspondence). Target shall also promptly, and in any event within twenty-four (24) hours, notify Parent, orally and in writing, if it enters into discussions or negotiations or engages in other communications concerning any Acquisition Proposal or for access provides nonpublic information or data to the properties, books or records any person in accordance with this Section 6.12(b) and keep Parent reasonably apprised of the Company status and terms of any such proposals, offers, discussions or negotiations on a current basis including by providing a copy of all material documentation or correspondence relating thereto. Target shall use its reasonable best efforts to enforce any existing confidentiality or standstill agreements to which it or any of its Subsidiaries is a party in accordance with the terms thereof.
(iii) Nothing contained in this Section 6.12 shall prohibit Target, its board of directors or any request for of its Subsidiaries from taking and disclosing to its shareholders a waiver position required by or release otherwise complying with Rule 14e-2(a), Item 1012(a) of Regulation M-A or Rule 14d-9 promulgated under any standstill or similar agreement, by any Person that informs the Board of Directors of the Company or such Subsidiary that it is considering making, or has made an Acquisition ProposalExchange Act; provided, however, that prior to participating compliance with such rules shall not in any discussions way limit or negotiations modify the effect that any action taken pursuant to such rules has under any other provision of this Agreement.
(c) Unless this Agreement has been terminated in accordance with its terms, Target shall not, and shall cause its Subsidiaries and shall use its reasonable best efforts to cause its and their respective officers, directors, managers, agents, advisors and Target Representatives not to on its or furnishing any such informationof Target’s Subsidiaries’ or affiliates’ behalf, the Company shall receive from such Person an executed enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, or other agreement (other than a confidentiality agreement on terms that are not materially less favorable referred to the Company than the Confidentiality Agreement. The notice shall indicate the terms and conditions of the proposal or request and the identity of the Person making it, and the Company will promptly notify Acquiror of any material modification of or material amendment entered into in accordance with Section 6.12(b)) relating to any Acquisition Proposal (and the terms of such modification or amendment); provided, however, that, without limiting what changes may be material, any change in the consideration to be paid with respect to the Acquisition Proposal shall be deemed to be a material modification or a material amendment. The Company shall keep Acquiror informed, on a reasonably current basis, of the status of any negotiations, discussions and documents with respect to such Acquisition Proposal or requestProposal.
(ed) Holding, Acquiror or the Company may terminate For purposes of this Agreement, if the Company's Board of Directors or the Special Committee, after consultation with its financial and legal advisors, shall have determined (i) to approve or recommend an Acquisition Proposal after concluding that the Acquisition Proposal constitutes a Superior Proposal and (ii) to enter into a binding agreement concerning the term “Acquisition Proposal; provided” means, howeverany proposal, that the Company may not exercise its right to terminate under this Section 6.3(e), unless (1) the Company shall have provided to Acquiror at least three (3) Business Days' prior written notice that its Board offer or third party indication of Directors or the Special Committee has authorized the termination and intends to terminate this Agreement pursuant to this Section 6.3(e), specifying the material terms and conditions of the Acquisition Proposal, and (2) Acquiror does not make, within three (3) Business Days of delivery of the notice, an offer such that a majority of the disinterested members of the Company's Board of Directors or the Special Committee determines that the foregoing Acquisition Proposal no longer constitutes a Superior Proposal. In connection with the forgoing, the Company agrees that it will not enter into an agreement which binds the Company with respect to such an Acquisition Proposal unless interest in any (x) direct or indirect acquisition or purchase of 20% or more of the Company simultaneously delivers to Acquiror consolidated assets of Target and its Subsidiaries or 20% or more of any class of equity or voting securities of Target or any of its Subsidiaries whose assets, individually or in the notice contemplated by aggregate, constitute more than 20% of the foregoing provisoconsolidated assets of Target, (y) tender offer (including a self-tender) or exchange offer that, if consummated, would result in such agreement is not binding on third party beneficially owning 20% or more of any class of equity or voting securities of Target or any of its Subsidiaries whose assets, individually or in the Company until three (3) Business Days after delivery aggregate, constitute more than 20% of the notice set forth in this Section 6.3(e) and consolidated assets of Target or (z) the Company has the right under such agreement to unilaterally terminate such agreement prior to the termination of this Agreement without any payment merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other liability similar transaction involving Target or obligation of any kind.
(f) The Company shall immediately cease, and shall cause any party acting on its behalf to cease, and cause to be terminated any existing discussions or negotiations with any Third Party conducted heretofore with respect to any of the foregoing and shall request any such parties in possession of confidential information about the Company or its Subsidiaries that was furnished by whose assets, individually or on behalf in the aggregate, constitute more than 20% of the Company or its Subsidiaries to return or destroy all such information consolidated assets of Target, in each case other than the possession of any such party or the agent or advisor of any such partytransactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (BNC Bancorp), Merger Agreement (Pinnacle Financial Partners Inc)
Acquisition Proposals; Board Recommendation. (a) The Company agrees that it shall not, nor shall it permit any Company Subsidiary to, nor shall it authorize or knowingly permit any officer, director, employee, investment banker, attorney, accountant, agent or other advisor or representative (collectively, “Representatives”) of the Company or any Company Subsidiary, directly or indirectly, to (i) solicit solicit, initiate or initiate otherwise knowingly encourage the submission of any Acquisition Proposal, (ii) participate in any discussions or negotiations regarding, or furnish to any Person any non-public information with respect toto or in connection with, or take any other action knowingly to facilitate any inquiries or the making of any proposal that constitutes constitutes, or that would reasonably be expected to lead to to, any Acquisition Proposal, (iii) grant any waiver or release under any standstill or similar agreement with respect to any class or series of the Company's equity securities ’s Equity Interests (provided that the Company shall be permitted to grant waivers or releases under any such agreements solely to permit the counterparty thereto to make an Acquisition Proposal), or (iv) except for the waivers and releases permitted by the foregoing clause (iii) and as otherwise permitted or required pursuant to Sections 6.3(d) and 6.3(e), enter into any agreement with respect to any Acquisition Proposal; provided. Notwithstanding anything to the contrary contained in this Agreement, however, that if the Company receives an unsolicited Acquisition Proposal from a Third Party that constitutes a Superior Proposal or that the Company's ’s Board of Directors or the Special Committee determines in good faith is or could reasonably be expected to lead to the delivery of a Superior Proposal from that Third Party, prior to obtaining the Company Stockholder Approval, the Company may, subject to compliance with the other provisions of this Section 6.3, furnish information information, including non-public information, to, and engage in discussions and negotiations with, such Third Party with respect to its Acquisition Proposal and grant a waiver as provided in clause ("iii) of the immediately preceding sentence (“Permitted Actions"). Notwithstanding the foregoing, ”) if the Board of Directors shall not take any Permitted Actions unless of the Company provides Acquiror concludes in good faith, after consultation with reasonable advance notice thereofits outside financial advisors and legal advisors, that, as a result of such Acquisition Proposal, the failure to take such Permitted Action would be inconsistent with its fiduciary duties under applicable Law.
(b) Except as permitted by this Section 6.3(b), neither the Board of Directors of the Company, the Special Committee Company nor any committee thereof shall amend, withdraw, modify, change, condition or qualify in any manner adverse to Parent or Acquiror, the Company Recommendation (it being understood and agreed that a “stop, look and listen” communication by the Board of Directors of the Company or the Special Committee to the Company Stockholders pursuant to Rule 14d-9(f) of the Exchange Act, or any similar communication to the Company Stockholders in connection with the making or amendment of a tender offer or exchange offeroffer by any Person other than the Company or any Company Subsidiary, shall not be deemed to constitute a an amendment, withdrawal, modification, amendmentchange, condition or qualification of the Company Recommendation for all purposes of this Agreement, including Section 6.2 and Section 10.1(d)(ii), this Section 6.3 and Section 10.1(e10.1(d)). Notwithstanding anything in this Section 6.3 to the foregoingcontrary, in the event that the Board of Directors of prior to obtaining the Company or the Special Committee takes the actions set forth in Section 6.3(e)Stockholder Approval, the Board of Directors of the Company may amend, withdraw, modify, change, condition or qualify the Special Committee may (i) withdraw or modify Company Recommendation in any a manner adverse to Parent or Acquiror, if the Board of Directors of the Company Recommendation concludes in good faith, after consultation with its outside legal counsel, that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law, provided that if and only if such amendment, withdrawal, modification, change, condition or qualification is proposed to be made in response to any Acquisition Proposal then such amendment, withdrawal, modification, change, condition or qualification shall not be made (1) unless such Acquisition Proposal constitutes a Superior Proposal, (2) the Company has complied in all material respects with this Section 6.3, (3) until after the third Business Day following delivery to Parent by the Company of a Notice of Superior Proposal and (ii4) approve unless either (x) on or recommendbefore the expiration of the three (3) Business Day period following the delivery to Parent of the Notice of Superior Proposal referred to in the foregoing clause (3), Parent does not make a Matching Bid in response to such Superior Proposal or propose (y) following receipt of a Matching Bid within the three (3) Business Day period, the Board of Directors of the Company concludes in good faith, after consultation with its outside legal counsel and financial advisors and after taking into consideration the Matching Bid, that the Superior Proposal to approve which the Notice of Superior Proposal relates continues to be a Superior Proposal. Any action pursuant to the terms of this Section 6.3(b) shall not constitute a breach of the Company’s representations, warranties, covenants or recommend, any Acquisition Proposalagreements contained in this Agreement.
(c) Unless the Company's ’s Board of Directors or the Special Committee has previously withdrawn, or is concurrently therewith withdrawing, the Company Recommendation in accordance with this Section 6.36.3 and otherwise complies with Section 6.3(d), neither the Company's ’s Board of Directors nor any committee thereof shall recommend any Acquisition Proposal to the Company StockholdersStockholders or, except as otherwise permitted by this Section 6.3, enter into any letter of intent, agreement in principle, merger, acquisition or similar agreement with respect to any Acquisition Proposal. Notwithstanding anything to the foregoing, nothing contrary contained in this Agreement, including this Section 6.3(c) or elsewhere in this Agreement 6.3, nothing shall prevent the Company's ’s Board of Directors from taking or the Special Committee from disclosing a position and complying with Rule 14e-2 and Rule 14d-9 under the Exchange Act with respect to any Acquisition Proposal or making any disclosure required by or otherwise complying with applicable Law.
(d) Notwithstanding anything in this Section 6.3 to the contrary, at any time prior to obtaining the Company Stockholder Approval, the Board of Directors of the Company may, in response to a Superior Proposal that did not result from a breach of this Section 6.3, cause the Company to terminate this Agreement pursuant to Section 10.1(c)(ii) and concurrently with such termination enter into a definitive agreement providing for the transactions contemplated by such Superior Proposal; provided, however, that the Company shall not terminate this Agreement pursuant to Section 10.1(c)(ii), and any purported termination pursuant to Section 10.1(c)(ii) shall be void and of no force or effect, unless the Company shall have complied in all material respects with all the provisions of this Section 6.3, including the notification provisions in this Section 6.3(d), and with all applicable requirements of Section 10.2(b)(ii) (including the payment of the Company Termination Fee prior to or on the date of such termination) in connection with such Superior Proposal; and provided further, however, that the Company shall not exercise its right to terminate this Agreement pursuant to Section 10.1(c)(ii): (A) until after the third Business Day following delivery to Parent of written notice from the Company advising Parent that the Board of Directors of the Company has received a Superior Proposal, specifying the material terms and conditions of the Superior Proposal, and identifying the Person making such Superior Proposal (a “Notice of Superior Proposal”) and stating that the Board of Directors of the Company intends to cause the Company to exercise its right to terminate this Agreement pursuant to Section 10.1(c)(ii) (it being understood and agreed that, prior to any termination pursuant to Section 10.2(c)(ii) taking effect, any amendment to the price or any other material term of a Superior Proposal (such amended Superior Proposal, a “Modified Superior Proposal”) shall require a new Notice of Superior Proposal and a new three (3) Business Day period with respect to such Modified Superior Proposal) and (B) unless either (x) on or before the expiration of the three (3) Business Day period following the delivery to Parent of any Notice of Superior Proposal, Parent does not make a good faith written proposal (a “Matching Bid”) in response to such Superior Proposal or (y) following receipt of a Matching Bid within the three (3) Business Day period, the Board of Directors of the Company concludes in good faith, after consultation with its outside legal counsel and financial advisors and after taking into consideration the Matching Bid, that the Superior Proposal to which the Notice of Superior Proposal relates continues to be a Superior Proposal.
(e) The Company shall notify Acquiror Parent promptly (but in no event later than the next Business Day) after receipt by the Company of (i) any Acquisition Proposal or Proposal, (ii) any request for information relating to the Company or any of its Subsidiaries Company Subsidiary in connection with an Acquisition Proposal or for access to the properties, books or records of the Company or any of its Subsidiaries Company Subsidiary, (iii) any inquiry that would reasonably be expected to lead to an Acquisition Proposal or from any Person seeking to have discussions or negotiations with the Company relating to a possible Acquisition Proposal or (iv) any request for a waiver or release under any standstill or similar agreement, agreement by any Person that has made, or informs the Board of Directors of the Company or such Company Subsidiary that it is considering making, or has made an Acquisition Proposal; provided, however, that prior to participating in any discussions or negotiations or furnishing any such information, the Company shall receive from such Person an executed confidentiality agreement on terms that are not materially less favorable to the Company than the Confidentiality Agreement, provided that such confidentiality agreement with such Person may contain additional provisions that expressly permit the Company to comply with the provisions of this Section 6.3. The notice shall indicate the material terms and conditions of the proposal or request and the identity of the Person making itit and shall include a copy of all written materials provided by or on behalf of such Person in connection with such proposal, request or inquiry, and the Company will promptly (but in no event later than the next Business Day from the receipt thereof) notify Parent and Acquiror of the Company’s receipt of any material modification of or material amendment to any Acquisition Proposal (and the material terms of such modification or amendment)) and provide copies of all written materials subsequently provided to, by or on behalf of such Person in connection with such proposal, request or inquiry; provided, however, that, that without limiting what changes may be material, any change in the form, amount, timing or other aspects of the consideration to be paid with respect to the Acquisition Proposal shall be deemed to be a material modification or a material amendment. The Company shall keep Acquiror informedParent informed in all material respects, on a reasonably current basis, of the status of any negotiations, discussions and documents with respect to such Acquisition Proposal or request.
(e) Holding, Acquiror or the Company may terminate this Agreement, if the Company's Board of Directors or the Special Committee, after consultation with its financial and legal advisors, shall have determined (i) to approve or recommend an Acquisition Proposal after concluding that the Acquisition Proposal constitutes a Superior Proposal and (ii) to enter into a binding agreement concerning the Acquisition Proposal; provided, however, that the Company may not exercise its right to terminate under this Section 6.3(e), unless (1) the Company shall have provided to Acquiror at least three (3) Business Days' prior written notice that its Board of Directors or the Special Committee has authorized the termination and intends to terminate this Agreement pursuant to this Section 6.3(e), specifying the material terms and conditions of the Acquisition Proposal, and (2) Acquiror does not make, within three (3) Business Days of delivery of the notice, an offer such that a majority of the disinterested members of the Company's Board of Directors request or the Special Committee determines that the foregoing Acquisition Proposal no longer constitutes a Superior Proposal. In connection with the forgoing, the Company agrees that it will not enter into an agreement which binds the Company with respect to such an Acquisition Proposal unless (x) the Company simultaneously delivers to Acquiror the notice contemplated by the foregoing proviso, (y) such agreement is not binding on the Company until three (3) Business Days after delivery of the notice set forth in this Section 6.3(e) and (z) the Company has the right under such agreement to unilaterally terminate such agreement prior to the termination of this Agreement without any payment or other liability or obligation of any kindinquiry.
(f) The Company shall immediately cease, and shall cause any party Person acting on its behalf to cease, and cause to be terminated any existing discussions or negotiations with any Third Party conducted heretofore with respect to any of the foregoing Acquisition Proposal and shall request any such parties Third Parties in possession of confidential information about the Company or its Subsidiaries any Company Subsidiary that was furnished by or on behalf of the Company or its Subsidiaries any such Subsidiary to return or destroy all such information in the possession of any such party Third Party or the agent or advisor of any such partyThird Party.
Appears in 2 contracts
Sources: Merger Agreement (Cb Richard Ellis Group Inc), Merger Agreement (Trammell Crow Co)
Acquisition Proposals; Board Recommendation. (a) The Company Southside agrees that it shall not, nor shall it permit any Company Subsidiary to, nor shall it authorize or knowingly permit any officer, director, employee, investment banker, attorney, accountant, agent or other advisor or representative of the Company or any Company SubsidiarySouthside, directly or indirectly, to (i) solicit solicit, initiate or initiate knowingly facilitate or encourage the submission of any Acquisition ProposalProposal for Southside from and after the date hereof, (ii) participate in any discussions or negotiations regarding, or furnish to any Person person any information with respect to, or take any other action knowingly to facilitate any inquiries or the making of any proposal that constitutes or that would reasonably be expected to lead to any an Acquisition ProposalProposal for Southside from and after the date hereof, (iii) grant any waiver or release under any standstill or similar agreement with respect to any class of the Company's equity securities Southside Equity Securities or (iv) enter into any agreement with respect to any Acquisition ProposalProposal for Southside; provided, however, that if if, at any time prior to the Company receives an unsolicited Acquisition Proposal from a Third Party that the CompanySouthside shareholder approval pursuant to Section 5.03(a), Southside's Board of Directors or the Special Committee reasonably determines in good faith faith, after consultation with and receipt of advice from outside counsel and independent financial advisor of Southside, that failing to take such action would be inconsistent with its fiduciary duties to Southside's shareholders under applicable law, Southside may, in response to an Acquisition Proposal for Southside made after the date of this Agreement which was not solicited by Southside or its representatives or agents and which did not otherwise result from a breach of this Section 4.03, and which is reasonably likely to lead to a Superior Proposal, and subject to compliance with Section 4.03(c); (x) furnish information with respect to Southside to any person pursuant to a customary confidentiality agreement including customary standstill provisions (as determined by Southside after consultation with its outside counsel) and (y) participate in negotiations regarding such Acquisition Proposal for Southside. "Acquisition Proposal" means any inquiry, proposal or offer relating to any direct or indirect acquisition or purchase, in one transaction or a series of related transactions, of 15% or more of the assets of Southside or any of the Southside Subsidiaries or 15% or more of any class of Equity Securities of Southside or any of its Subsidiaries, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of Equity Securities of Southside or any of the Southside Subsidiaries, any merger, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or similar transaction involving Southside or any of the Southside Subsidiaries, other than the negotiations with Allegiant, or any other transaction the consummation of which could reasonably be expected to lead to the delivery of a Superior Proposal from that Third Partyimpede, the Company may, subject to compliance with the other provisions of this Section 6.3, furnish information to, and engage in discussions and negotiations interfere with, such Third Party with respect prevent or materially delay the Merger or which could reasonably be expected to its Acquisition Proposal ("Permitted Actions"). Notwithstanding dilute materially the foregoing, the Board of Directors shall not take any Permitted Actions unless the Company provides Acquiror with reasonable advance notice thereof.
(b) Except as permitted by this Section 6.3(b), neither the Board of Directors benefits to Allegiant of the Company, the Special Committee nor any committee thereof shall amend, withdraw, modify, change, condition or qualify in any manner adverse to Acquiror, the Company Recommendation (it being understood and agreed that a communication by the Board of Directors of the Company or the Special Committee to the Company Stockholders pursuant to Rule 14d-9(f) of the Exchange Act, or any similar communication to the Company Stockholders in connection with the making or amendment of a tender offer or exchange offer, shall not be deemed to constitute a withdrawal, modification, amendment, condition or qualification of the Company Recommendation for all purposes of this Agreement, including this Section 6.3 and Section 10.1(e)). Notwithstanding the foregoing, in the event that the Board of Directors of the Company or the Special Committee takes the actions set forth in Section 6.3(e), the Board of Directors of the Company or the Special Committee may (i) withdraw or modify in any manner adverse to Acquiror, the Company Recommendation and (ii) approve or recommend, or propose to approve or recommend, any Acquisition ProposalMerger.
(c) Unless the Company's Board of Directors or the Special Committee has previously withdrawn, or is concurrently therewith withdrawing, the Company Recommendation in accordance with this Section 6.3, neither the Company's Board of Directors nor any committee thereof shall recommend any Acquisition Proposal to the Company Stockholders. Notwithstanding the foregoing, nothing contained in this Section 6.3(c) or elsewhere in this Agreement shall prevent the Company's Board of Directors or the Special Committee from complying with Rule 14e-2 under the Exchange Act with respect to any Acquisition Proposal or making any disclosure required by or otherwise complying with applicable Law.
(d) The Company shall notify Acquiror promptly (but in no event later than the next Business Day) after receipt by the Company of any Acquisition Proposal or any request for information relating to the Company or any of its Subsidiaries in connection with an Acquisition Proposal or for access to the properties, books or records of the Company or any of its Subsidiaries or any request for a waiver or release under any standstill or similar agreement, by any Person that informs the Board of Directors of the Company or such Subsidiary that it is considering making, or has made an Acquisition Proposal; provided, however, that prior to participating in any discussions or negotiations or furnishing any such information, the Company shall receive from such Person an executed confidentiality agreement on terms that are not materially less favorable to the Company than the Confidentiality Agreement. The notice shall indicate the terms and conditions of the proposal or request and the identity of the Person making it, and the Company will promptly notify Acquiror of any material modification of or material amendment to any Acquisition Proposal (and the terms of such modification or amendment); provided, however, that, without limiting what changes may be material, any change in the consideration to be paid with respect to the Acquisition Proposal shall be deemed to be a material modification or a material amendment. The Company shall keep Acquiror informed, on a reasonably current basis, of the status of any negotiations, discussions and documents with respect to such Acquisition Proposal or request.
(e) Holding, Acquiror or the Company may terminate this Agreement, if the Company's Board of Directors or the Special Committee, after consultation with its financial and legal advisors, shall have determined (i) to approve or recommend an Acquisition Proposal after concluding that the Acquisition Proposal constitutes a Superior Proposal and (ii) to enter into a binding agreement concerning the Acquisition Proposal; provided, however, that the Company may not exercise its right to terminate under this Section 6.3(e), unless (1) the Company shall have provided to Acquiror at least three (3) Business Days' prior written notice that its Board of Directors or the Special Committee has authorized the termination and intends to terminate this Agreement pursuant to this Section 6.3(e), specifying the material terms and conditions of the Acquisition Proposal, and (2) Acquiror does not make, within three (3) Business Days of delivery of the notice, an offer such that a majority of the disinterested members of the Company's Board of Directors or the Special Committee determines that the foregoing Acquisition Proposal no longer constitutes a Superior Proposal. In connection with the forgoing, the Company agrees that it will not enter into an agreement which binds the Company with respect to such an Acquisition Proposal unless (x) the Company simultaneously delivers to Acquiror the notice contemplated by the foregoing proviso, (y) such agreement is not binding on the Company until three (3) Business Days after delivery of the notice set forth in this Section 6.3(e) and (z) the Company has the right under such agreement to unilaterally terminate such agreement prior to the termination of this Agreement without any payment or other liability or obligation of any kind.
(f) The Company shall immediately cease, and shall cause any party acting on its behalf to cease, and cause to be terminated any existing discussions or negotiations with any Third Party conducted heretofore with respect to any of the foregoing and shall request any such parties in possession of confidential information about the Company or its Subsidiaries that was furnished by or on behalf of the Company or its Subsidiaries to return or destroy all such information in the possession of any such party or the agent or advisor of any such party.
Appears in 2 contracts
Sources: Merger Agreement (Allegiant Bancorp Inc), Merger Agreement (Southside Bancshares Corp)
Acquisition Proposals; Board Recommendation. (a) The Company agrees that it shall not, nor and the Company shall it permit cause its Subsidiaries and its and their respective officers, directors, employees, attorneys, accountants, advisors, representatives and agents (“Representatives”) (including any Company Subsidiary to, nor shall it authorize or knowingly permit any officer, director, employee, investment banker, attorney, accountant, agent or other advisor or representative Representative of the Company or any Company SubsidiarySpecial Committee) not to, directly or indirectly, to (i) solicit or initiate the submission of or knowingly encourage any inquiry, offer or proposal that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (ii) participate or engage in or continue any discussions or negotiations regardingwith, or furnish disclose or provide any non-public information relating to any Person any information with respect the Company or its Subsidiaries to, or take any other action knowingly to facilitate any inquiries or the making of any proposal that constitutes or that would reasonably be expected to lead afford access to any of the properties, books or records of the Company or its Subsidiaries to, any Person with respect to an Acquisition Proposal, (iii) enter into any agreement or agreement in principle with any Person with respect to an Acquisition Proposal, or (iv) grant any waiver or release under any standstill or similar agreement with respect to by any class of the Company's equity securities or (iv) enter into any agreement with respect to any Person who has made an Acquisition Proposal; , provided, however, that if prior to obtaining the Company receives an unsolicited Shareholder Approval (and in no event after obtaining such Company Shareholder Approval), the Company, its Subsidiaries and their respective Representatives (including any Representative of the Special Committee) may participate or engage in discussions or negotiations with, or disclose or provide non-public information relating to the Company or its Subsidiaries to, or afford access to the properties, books or records of the Company or its Subsidiaries to, a Person that has made (and not withdrawn) a bona fide, written Acquisition Proposal from that is reasonably capable of being financed if, but only if, (A) such Acquisition Proposal was made after the date of this Agreement (it being understood than an Acquisition Proposal made after the date of this Agreement by a Third Party that Person who made an Acquisition Proposal prior to the date of this Agreement shall be considered a new Acquisition Proposal made after the date of this Agreement) and none of the Company's , its Subsidiaries and their Representatives (including any Representative of the Special Committee) has violated any of the restrictions set forth in this Section 6.2, (B) such Person shall have entered into a confidentiality agreement with the Company on terms that are no less favorable to the Company or Parent than the Confidentiality Agreement (including without limitation the standstill provisions thereof), (C) each of the Board of Directors or of the Company and the Special Committee determines has determined in good faith is by resolution duly adopted, after consultation with outside legal counsel and a financial advisor of nationally recognized reputation, that such Acquisition Proposal constitutes or could reasonably be expected to lead to the delivery of a Superior Proposal from that Third PartyProposal, and (D) within 24 hours after participating or engaging in any such discussions or negotiations or disclosing or providing any such non-public information or affording such access, the Company mayshall give Parent and Acquiror written notice of the identity of such Person and the terms of the Acquisition Proposal and, subject prior to compliance or concurrently with disclosing or providing any such non-public information, the other provisions Company shall disclose or provide all such information to Acquiror. The Company shall, and shall cause its Subsidiaries and instruct their Representatives (including any Representative of this Section 6.3, furnish information the Special Committee) to, immediately cease and engage in cause to be terminated all existing discussions and or negotiations with, such Third Party with any Person conducted heretofore with respect to its any Acquisition Proposal ("Permitted Actions"). Notwithstanding and request the foregoing, the Board prompt return or destruction of Directors shall not take any Permitted Actions unless the Company provides Acquiror with reasonable advance notice thereofall confidential information previously furnished.
(b) Except as permitted by this In addition to the obligations of the Company set forth in Section 6.3(b6.2(a), neither the Company shall promptly as practicable (i) advise Parent and Acquiror, telephonically and in writing, of the Company’s receipt of any Acquisition Proposal and (ii) provide Parent and Acquiror, in writing, with the terms and conditions of any such Acquisition Proposal, or such proposal, inquiry or request and the identity of the Person making the same. The Company shall keep Parent informed on a current basis of the status and all material terms (including any change to the material terms) of any such Acquisition Proposal. Immediately upon determination by the Special Committee or the Board of Directors of the Company, as applicable, that an Acquisition Proposal constitutes a Superior Proposal, the Company shall deliver to Parent and Acquiror a written notice (a “Notice of Superior Proposal”) advising them of such determination, specifying the terms and conditions of such Superior Proposal and the identity of the Person making such Superior Proposal, and providing Parent and Acquiror with a copy of the Superior Proposal.
(c) Each of the Board of Directors of the Company and the Special Committee has adopted a resolution recommending the approval of this Agreement and the Merger by the Company Shareholders (the “Company Recommendation”). Neither the Board of Directors nor any committee thereof shall amend, withdraw, modify, change, condition (i) withdraw (or qualify modify in any a manner adverse to AcquirorParent), or propose publicly to withdraw (or modify in a manner adverse to Parent), the Company Recommendation (it being understood and agreed that taking a communication by the Board of Directors of the Company neutral position or the Special Committee no position with respect to the Company Stockholders pursuant an Acquisition Proposal shall be considered an adverse modification, provided that taking a neutral position or no position with respect to Rule 14d-9(f) of the Exchange Act, or any similar communication to the Company Stockholders in connection with the making or amendment of a tender offer or exchange offer, offer that is an Acquisition Proposal for a period of time not in excess of thirty (30) days after commencement of such tender offer or exchange offer shall not be deemed considered an adverse modification) or (ii) recommend, adopt or approve, or propose publicly to constitute recommend, adopt or approve, any Acquisition Proposal (any action described in clause (i) or (ii) being referred to as a withdrawal, modification, amendment, condition or qualification of the “Company Adverse Recommendation for all purposes of this Agreement, including this Section 6.3 and Section 10.1(e)Change”). Notwithstanding the foregoing, in the event that the Board of Directors of the Company or the Special Committee takes the actions set forth in Section 6.3(e), the Board of Directors of the Company or the Special Committee may make a Company Adverse Recommendation Change if it reasonably determines in good faith (ifollowing consultation with outside counsel) withdraw or modify that it is necessary to do so in any manner adverse order to Acquiror, comply with their fiduciary duties to the Company Shareholders under applicable Law and the Company has fully complied with its obligations under this Section 6.2; provided, however, that no Company Adverse Recommendation and Change may be made in response to an Acquisition Proposal until after the third Business Day following Parent’s receipt of written notice from the Company (iian “Adverse Recommendation Notice”) approve or recommend, or propose to approve or recommend, any Acquisition Proposal.
(c) Unless advising Parent that the Company's Board of Directors or the Special Committee Committee, as applicable, has previously withdrawndetermined that such Acquisition Proposal is a Superior Proposal, or is concurrently therewith withdrawing, that the Company Recommendation in accordance with this Section 6.3, neither the Company's Board of Directors nor or the Special Committee, as applicable, intends to make such Company Adverse Recommendation Change and containing all information required by Section 6.2(a), together with copies of any committee thereof written offer or proposal in respect of such Superior Proposal (it being understood and agreed that any material amendment to the financial terms or other material terms of such Superior Proposal shall recommend require a new Adverse Recommendation Notice and a new three Business Day period. In determining whether to make a Company Adverse Recommendation Change in response to a Superior Proposal, the Board of Directors of the Company and the Special Committee shall take into account any changes to the terms of this Agreement proposed by Parent (in response to an Adverse Recommendation Notice or otherwise) in determining whether such Acquisition Proposal still constitutes a Superior Proposal (which changes Company and Parent and Acquiror agree, and agree to cause their respective Representatives, to negotiate in good faith). For the Company Stockholders. Notwithstanding the foregoingavoidance of doubt, nothing contained in this Section 6.3(c) 6.2 shall prohibit the Company or elsewhere in this Agreement shall prevent the Company's its Board of Directors or the Special Committee from complying taking and disclosing to the Company Shareholders a position, or any information, with respect to an Acquisition Proposal by a Third Party to the extent required under applicable Law (including Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act Act); provided that unless and until this Agreement is terminated in accordance with respect to any Acquisition Proposal or making any disclosure required by or otherwise complying with applicable Law.
(d) The Company Section 10.1 hereof, nothing in this sentence shall notify Acquiror promptly (but in no event later than affect the next Business Day) after receipt by the Company of any Acquisition Proposal or any request for information relating to the Company or any of its Subsidiaries in connection with an Acquisition Proposal or for access to the properties, books or records obligations of the Company or any of its Subsidiaries or any request for a waiver or release under any standstill or similar agreement, by any Person that informs the Board of Directors of the Company or such Subsidiary that it is considering making, or has made an Acquisition Proposal; provided, however, that prior to participating in any discussions or negotiations or furnishing any such information, the Company shall receive from such Person an executed confidentiality agreement on terms that are not materially less favorable to the Company than the Confidentiality Agreement. The notice shall indicate the terms and conditions of the proposal or request and the identity of the Person making it, and the Company will promptly notify Acquiror of any material modification of or material amendment to any Acquisition Proposal (and the terms of such modification or amendment); provided, however, that, without limiting what changes may be material, any change in the consideration to be paid with respect to the Acquisition Proposal shall be deemed to be a material modification or a material amendment. The Company shall keep Acquiror informed, on a reasonably current basis, of the status of any negotiations, discussions and documents with respect to such Acquisition Proposal or request.
(e) Holding, Acquiror or the Company may terminate this Agreement, if the Company's Board of Directors or the Special Committee, after consultation with its financial and legal advisors, shall have determined (i) to approve or recommend an Acquisition Proposal after concluding that the Acquisition Proposal constitutes a Superior Proposal and (ii) to enter into a binding agreement concerning the Acquisition Proposal; provided, however, that the Company may not exercise its right to terminate under this Section 6.3(e), unless (1) the Company shall have provided to Acquiror at least three (3) Business Days' prior written notice that its Board of Directors or the Special Committee has authorized the termination and intends to terminate this Agreement pursuant to this Section 6.3(e), specifying the material terms and conditions of the Acquisition Proposal, and (2) Acquiror does not make, within three (3) Business Days of delivery of the notice, an offer such that a majority of the disinterested members of the Company's Board of Directors or the Special Committee determines that the foregoing Acquisition Proposal no longer constitutes a Superior Proposal. In connection with the forgoing, the Company agrees that it will not enter into an agreement which binds the Company with respect to such an Acquisition Proposal unless (x) the Company simultaneously delivers to Acquiror the notice contemplated by the foregoing proviso, (y) such agreement is not binding on the Company until three (3) Business Days after delivery of the notice set forth in this Section 6.3(e) and (z) the Company has the right under such agreement to unilaterally terminate such agreement prior to the termination any other provision of this Agreement without any payment or other liability or obligation of any kindAgreement, including Section 8.2(b).
(f) The Company shall immediately cease, and shall cause any party acting on its behalf to cease, and cause to be terminated any existing discussions or negotiations with any Third Party conducted heretofore with respect to any of the foregoing and shall request any such parties in possession of confidential information about the Company or its Subsidiaries that was furnished by or on behalf of the Company or its Subsidiaries to return or destroy all such information in the possession of any such party or the agent or advisor of any such party.
Appears in 2 contracts
Sources: Merger Agreement (Hollywood Entertainment Corp), Merger Agreement (Movie Gallery Inc)
Acquisition Proposals; Board Recommendation. (a) The Company agrees that it shall notimmediately terminate, nor and shall it permit any Company Subsidiary toinstruct its and its Subsidiaries’ officers, nor shall it authorize or knowingly permit any officerdirectors, directoremployees, employeeattorneys, investment bankeraccountants, attorneyadvisors, accountantrepresentatives and agents (“Representatives”) to immediately terminate, agent or other advisor or representative of the Company or any Company Subsidiary, directly or indirectly, to (i) solicit or initiate the submission of any Acquisition Proposal, (ii) participate in any all existing discussions or negotiations regardingnegotiations, or furnish to if any, with any Person any information conducted heretofore with respect to, or take any other action knowingly to facilitate any inquiries or the making of any proposal that constitutes or that would reasonably be expected to lead to any to, an Acquisition Proposal, (iii) grant any waiver or release under any standstill or similar agreement with respect to any class of the Company's equity securities or (iv) enter into any agreement with respect to any Acquisition Proposal; provided, however, that if the Company receives an unsolicited Acquisition Proposal from a Third Party that the Company's Board of Directors or the Special Committee determines in good faith is or could reasonably be expected to lead to the delivery of a Superior Proposal from that Third Party, the Company may, subject to compliance with the other provisions of this Section 6.3, furnish information to, and engage in discussions and negotiations with, such Third Party with respect to its Acquisition Proposal ("Permitted Actions"). Notwithstanding the foregoing, the Board of Directors shall not take any Permitted Actions unless the Company provides Acquiror with reasonable advance notice thereof.
(b) Except as permitted by this Section 6.3(b), neither the Board of Directors of the Company, the Special Committee nor any committee thereof shall amend, withdraw, modify, change, condition or qualify in any manner adverse to Acquiror, the Company Recommendation (it being understood and agreed that a communication by the Board of Directors of the Company or the Special Committee to the Company Stockholders pursuant to Rule 14d-9(f) of the Exchange Act, or any similar communication to the Company Stockholders in connection with the making or amendment of a tender offer or exchange offer, shall not be deemed to constitute a withdrawal, modification, amendment, condition or qualification of the Company Recommendation for all purposes of this Agreement, including this Section 6.3 and Section 10.1(e)). Notwithstanding the foregoing, in the event that the Board of Directors of the Company or the Special Committee takes the actions set forth in Section 6.3(e), the Board of Directors of the Company or the Special Committee may (i) withdraw or modify in any manner adverse to Acquiror, the Company Recommendation and (ii) approve or recommend, or propose to approve or recommend, any Acquisition Proposal.
(c) Unless the Company's Board of Directors or the Special Committee has previously withdrawn, or is concurrently therewith withdrawing, the Company Recommendation in accordance with this Section 6.3, neither the Company's Board of Directors nor any committee thereof shall recommend any Acquisition Proposal to the Company Stockholders. Notwithstanding the foregoing, nothing contained in this Section 6.3(c) or elsewhere in this Agreement shall prevent the Company's Board of Directors or the Special Committee from complying with Rule 14e-2 under the Exchange Act with respect to any Acquisition Proposal or making any disclosure required by or otherwise complying with applicable Law.
(d) The Company shall notify Acquiror promptly (but in no event later than the next Business Day) after receipt by the Company of any Acquisition Proposal or any request for information relating to the Company or any of its Subsidiaries in connection demand that each Person which has heretofore executed a confidentiality agreement with an Acquisition Proposal or for access to the properties, books or records benefit of the Company or any of its Subsidiaries or any request for a waiver of its or release under any standstill or similar agreement, by any Person that informs the Board of Directors of the Company or such Subsidiary that it is considering making, or has made an Acquisition Proposal; provided, however, that prior to participating in any discussions or negotiations or furnishing any such information, the Company shall receive from such Person an executed confidentiality agreement on terms that are not materially less favorable to the Company than the Confidentiality Agreement. The notice shall indicate the terms and conditions of the proposal or request and the identity of the Person making it, and the Company will promptly notify Acquiror of any material modification of or material amendment to any Acquisition Proposal (and the terms of such modification or amendment); provided, however, that, without limiting what changes may be material, any change in the consideration to be paid with respect to the Acquisition Proposal shall be deemed to be a material modification or a material amendment. The Company shall keep Acquiror informed, on a reasonably current basis, of the status of any negotiations, discussions and documents their Representatives with respect to such Person’s consideration of a possible Acquisition Proposal promptly return or request.
destroy (e) Holding, Acquiror or the Company may terminate this Agreement, if which destruction shall be certified in writing by such Person to the Company's Board of Directors or the Special Committee, after consultation with its financial and legal advisors, shall have determined (i) to approve or recommend an Acquisition Proposal after concluding that the Acquisition Proposal constitutes a Superior Proposal and (ii) to enter into a binding agreement concerning the Acquisition Proposal; provided, however, that the Company may not exercise its right to terminate under this Section 6.3(e), unless (1) the Company shall have provided to Acquiror at least three (3) Business Days' prior written notice that its Board of Directors or the Special Committee has authorized the termination and intends to terminate this Agreement pursuant to this Section 6.3(e), specifying the material terms and conditions of the Acquisition Proposal, and (2) Acquiror does not make, within three (3) Business Days of delivery of the notice, an offer such that a majority of the disinterested members of the Company's Board of Directors or the Special Committee determines that the foregoing Acquisition Proposal no longer constitutes a Superior Proposal. In connection with the forgoing, the Company agrees that it will not enter into an agreement which binds the Company with respect to such an Acquisition Proposal unless (x) the Company simultaneously delivers to Acquiror the notice contemplated by the foregoing proviso, (y) such agreement is not binding on the Company until three (3) Business Days after delivery of the notice set forth in this Section 6.3(e) and (z) the Company has the right under such agreement to unilaterally terminate such agreement prior to the termination of this Agreement without any payment or other liability or obligation of any kind.
(f) The Company shall immediately cease, and shall cause any party acting on its behalf to cease, and cause to be terminated any existing discussions or negotiations with any Third Party conducted heretofore with respect to any of the foregoing and shall request any such parties in possession of all confidential information about heretofore furnished by the Company or any of its Subsidiaries that was furnished or any of its or their Representatives to such Person or any of its or their Representatives in accordance with the terms of any confidentiality agreement with such Person. The term “Acquisition Proposal” means any offer or proposal (whether or not in writing) (other than an offer or proposal by or on behalf of Purchaser or its affiliates) for, or any indication of interest in: (i) a transaction pursuant to which any Person or group of Persons acquires or would acquire beneficial ownership of more than 15% of the outstanding voting power of the Company or any of its Subsidiaries Subsidiaries, whether from the Company or pursuant to return a tender offer, exchange offer or destroy otherwise; (ii) a merger, consolidation, business combination, reorganization, share exchange, sale of substantially all assets, recapitalization, liquidation, dissolution or similar transaction which would result in any Person (or group of Persons) other than Purchaser, Merger Sub or any of their affiliates (any such information Person, a “Third Party”) acquiring 15% or more of the fair market value of the assets of the Company and its Subsidiaries, taken as a whole; (iii) any transaction which would result in a Third Party acquiring 15% or more of the possession fair market value of the assets (including, without limitation, the capital stock of any Subsidiary of the Company) of the Company and its Subsidiaries, taken as a whole, immediately prior to such party transaction (whether by purchase of assets, acquisition of stock of a Subsidiary of the Company or otherwise); or (iv) any combination of the agent or advisor of any such partyforegoing.
Appears in 2 contracts
Sources: Merger Agreement (FTD Inc), Merger Agreement (FTD Inc)
Acquisition Proposals; Board Recommendation. (a) The Company UCC agrees that it shall not, nor shall it permit any Company UCC Subsidiary to, nor shall it authorize or knowingly permit any officer, director, employee, investment banker, attorney, accountant, agent or other advisor or representative of the Company UCC or any Company UCC Subsidiary, directly or indirectly, to (i) solicit solicit, initiate or initiate knowingly facilitate or encourage the submission of any Acquisition Proposal, (ii) participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to, or take any other action knowingly to facilitate any inquiries or the making of any proposal that constitutes constitutes, or that would may be reasonably be expected to lead to to, any Acquisition Proposal, (iii) grant any waiver or release under any standstill or similar agreement with respect to any class of the CompanyUCC's equity securities or (iv) enter into any agreement with respect to any Acquisition Proposal, other than in the manner contemplated by Section 6.3(d); provided, however, that UCC may take any action(s) described in the foregoing clauses (i), (ii), (iii), or (iv) in respect of any Person, but only if the Company receives an unsolicited (A) such Person delivers a bona fide written Acquisition Proposal from a Third Party that that, in the Companyreasonable judgment of UCC's Board of Directors or the Special Committee determines in good faith is or (after consultation with an investment bank of nationally recognized reputation) could be reasonably be expected likely to lead to the delivery to UCC of a Superior Proposal from that Third Party, the Company may, subject to compliance with the other provisions of this Section 6.3, furnish information to, and engage in discussions and negotiations with, such Third Party with respect to its Acquisition Proposal ("Permitted Actions"). Notwithstanding the foregoing, the Board of Directors shall not take any Permitted Actions unless the Company provides Acquiror with reasonable advance notice thereof.
(b) Except as permitted by this Section 6.3(b), neither the Board of Directors of the Company, the Special Committee nor any committee thereof shall amend, withdraw, modify, change, condition or qualify in any manner adverse to Acquiror, the Company Recommendation (it being understood and agreed that a communication by the Board of Directors of the Company or the Special Committee to the Company Stockholders pursuant to Rule 14d-9(f) of the Exchange Act, or any similar communication to the Company Stockholders in connection with the making or amendment of a tender offer or exchange offer, shall not be deemed to constitute a withdrawal, modification, amendment, condition or qualification of the Company Recommendation for all purposes of this Agreement, including this Section 6.3 and Section 10.1(e)). Notwithstanding the foregoing, in the event that the Board of Directors of the Company or the Special Committee takes the actions set forth in Section 6.3(e), the Board of Directors of the Company or the Special Committee may (i) withdraw or modify in any manner adverse to Acquiror, the Company Recommendation and (iiB) approve or recommend, or propose to approve or recommend, any Acquisition Proposal.
(c) Unless the CompanyUCC's Board of Directors or determines in good faith, on the Special Committee has previously withdrawnbasis of written advice from its outside legal counsel, or that it is concurrently therewith withdrawingrequired to take such action(s) in order to comply with its fiduciary duties under applicable law; provided, further, that, (x) prior to UCC taking any such action(s) in respect of such Person, such Person shall have entered into a confidentiality agreement with UCC on customary terms, and UCC shall provide the Company Recommendation in accordance with this Section 6.3, neither the Company's Board of Directors nor any committee thereof shall recommend any Acquisition Proposal to the Company Stockholders. Notwithstanding the foregoing, nothing contained in this notice contemplated by Section 6.3(c) or elsewhere in this Agreement and (y) UCC shall prevent the Company's Board of Directors or the Special Committee from complying with Rule 14e-2 under the Exchange Act not enter into any agreement with respect to any Acquisition Proposal or making any disclosure required by or otherwise without first complying with applicable Law.
(d) The Company shall notify Acquiror promptly (but Section 6.3(d). Without limiting the foregoing, it is understood that any violation of the restrictions set forth in no event later than the next Business Day) after receipt preceding sentence by the Company any officer, director, investment banker, attorney, accountant, agent or other advisor or representative of any Acquisition Proposal UCC or any request for information relating UCC Subsidiary, whether or not such individual is purporting to the Company act on behalf of UCC or any of its Subsidiaries in connection with an Acquisition Proposal UCC Subsidiary or for access to the propertiesotherwise, books or records of the Company or any of its Subsidiaries or any request for a waiver or release under any standstill or similar agreement, by any Person that informs the Board of Directors of the Company or such Subsidiary that it is considering making, or has made an Acquisition Proposal; provided, however, that prior to participating in any discussions or negotiations or furnishing any such information, the Company shall receive from such Person an executed confidentiality agreement on terms that are not materially less favorable to the Company than the Confidentiality Agreement. The notice shall indicate the terms and conditions of the proposal or request and the identity of the Person making it, and the Company will promptly notify Acquiror of any material modification of or material amendment to any Acquisition Proposal (and the terms of such modification or amendment); provided, however, that, without limiting what changes may be material, any change in the consideration to be paid with respect to the Acquisition Proposal shall be deemed to be a material modification or a material amendment. The Company shall keep Acquiror informed, on a reasonably current basis, breach of the status of any negotiations, discussions and documents with respect to such Acquisition Proposal or request.
(e) Holding, Acquiror or the Company may terminate this Agreement, if the Company's Board of Directors or the Special Committee, after consultation with its financial and legal advisors, shall have determined (i) to approve or recommend an Acquisition Proposal after concluding that the Acquisition Proposal constitutes a Superior Proposal and (ii) to enter into a binding agreement concerning the Acquisition Proposal; provided, however, that the Company may not exercise its right to terminate under this Section 6.3(e), unless (1) the Company shall have provided to Acquiror at least three (3) Business Days' prior written notice that its Board of Directors or the Special Committee has authorized the termination and intends to terminate this Agreement pursuant to this Section 6.3(e), specifying the material terms and conditions of the Acquisition Proposal, and (2) Acquiror does not make, within three (3) Business Days of delivery of the notice, an offer such that a majority of the disinterested members of the Company's Board of Directors or the Special Committee determines that the foregoing Acquisition Proposal no longer constitutes a Superior Proposal. In connection with the forgoing, the Company agrees that it will not enter into an agreement which binds the Company with respect to such an Acquisition Proposal unless (x) the Company simultaneously delivers to Acquiror the notice contemplated by the foregoing proviso, (y) such agreement is not binding on the Company until three (3) Business Days after delivery of the notice set forth in this Section 6.3(e) and (z) the Company has the right under such agreement to unilaterally terminate such agreement prior to the termination of this Agreement without any payment or other liability or obligation of any kind.
(f) The Company shall immediately cease, and shall cause any party acting on its behalf to cease, and cause to be terminated any existing discussions or negotiations with any Third Party conducted heretofore with respect to any of the foregoing and shall request any such parties in possession of confidential information about the Company or its Subsidiaries that was furnished by or on behalf of the Company or its Subsidiaries to return or destroy all such information in the possession of any such party or the agent or advisor of any such party.6.3
Appears in 1 contract
Acquisition Proposals; Board Recommendation. (a) The Company agrees that it shall not, nor shall it permit any Company Subsidiary to, nor shall it authorize or knowingly permit any officer, director, employee, investment banker, attorney, accountant, agent or other advisor or representative of the Company or any Company SubsidiarySubsidiary ("Representatives"), directly or indirectly, to and it shall use reasonable best efforts to cause such persons not to (i) solicit solicit, initiate or initiate encourage any inquiries or the submission making of any proposal or offer with respect to any Acquisition Proposal, (ii) participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to, or take any other action knowingly to facilitate any inquiries or the making of any proposal that constitutes or that would reasonably be expected to lead to any Acquisition Proposal, (iii) grant any waiver or release under any standstill or similar agreement with respect to any class of the Company's equity securities securities, or (iv) enter into any agreement with respect to any Acquisition Proposal; provided, however, that if (A) the Company receives an unsolicited may, and may authorize and permit its Representatives to, furnish or cause to be furnished information and may participate in negotiations and discussions with respect to any Acquisition Proposal from a Third Party that Proposal, which the Company's Board of Directors or the Special Committee determines in good faith faith, after consulting with its outside counsel and its financial advisors, is or could reasonably be expected likely to lead to the delivery of a Superior Proposal, (B) the Company's Board of Directors may take the actions described in the last sentence of Section 6.2, (C) the Company's Board of Directors may recommend an Acquisition Proposal from that Third Party, to Company Stockholders and (D) the Company maymay terminate this Agreement pursuant to Section 10.3 in order to immediately thereafter enter into a definitive agreement with respect to such Acquisition Proposal, subject in each case, if the Company's Board of Directors determines, in good faith after consulting with its outside counsel and its financial advisors, that such action is necessary to compliance comply with the other provisions its fiduciary duties under applicable law; provided that such Acquisition Proposal was not solicited in violation of this Section 6.3, furnish information toand in the case of (B), and engage in discussions and negotiations with, such Third Party with respect to its (C) or (D) there exists an Acquisition Proposal ("Permitted Actions"). Notwithstanding the foregoingwhich constitutes a Superior Proposal; provided, further, that prior to furnishing non-public information to any such party, the Board of Directors Company shall not take any Permitted Actions unless have entered into a confidentiality agreement no less favorable to the Company provides than the Confidentiality Agreement between the Company and the Acquiror with reasonable advance notice thereofdated July 17, 2000.
(b) Except as permitted by this Section 6.3(b)The Company agrees that it will immediately cease and cause to be terminated any existing activities, neither the Board of Directors of the Company, the Special Committee nor discussions or negotiations with any committee thereof shall amend, withdraw, modify, change, condition or qualify in parties conducted heretofore with respect to any manner adverse to Acquiror, the Company Recommendation (it being understood and agreed that a communication by the Board of Directors of the Company or the Special Committee to the Company Stockholders pursuant to Rule 14d-9(f) of the Exchange Act, or any similar communication to the Company Stockholders in connection with the making or amendment of a tender offer or exchange offer, shall not be deemed to constitute a withdrawal, modification, amendment, condition or qualification of the Company Recommendation for all purposes of this Agreement, including this Section 6.3 and Section 10.1(e)). Notwithstanding the foregoing, in the event that the Board of Directors of the Company or the Special Committee takes the actions set forth in Section 6.3(e), the Board of Directors of the Company or the Special Committee may (i) withdraw or modify in any manner adverse to Acquiror, the Company Recommendation and (ii) approve or recommend, or propose to approve or recommend, any proposed Acquisition Proposal.
(c) Unless the Company's Board of Directors or the Special Committee has previously withdrawn, or is concurrently therewith withdrawing, the Company Recommendation in accordance with this Section 6.36.2, neither the Company's Board of Directors nor any committee thereof shall recommend any Acquisition Proposal to the Company Stockholders. Notwithstanding the foregoing, nothing contained in this Section 6.3(c6.3(b) or elsewhere in this Agreement shall prevent the Company's Board of Directors or the Special Committee from complying with Rule 14e-2 under the Exchange 1934 Act with respect to any Acquisition Proposal or making any disclosure required by or otherwise complying with applicable Lawlaw.
(d) The Company shall notify Acquiror promptly (but in no event later than the next Business Day) after receipt by the Company of any Acquisition Proposal or any request for nonpublic information relating to the Company or any of its Subsidiaries in connection with an Acquisition Proposal or for access to the properties, books or records of the Company or any of its Subsidiaries or any request for a waiver or release under any standstill or similar agreement, by any Person person that informs the Board of Directors of the Company or such Subsidiary that it is considering making, or has made an Acquisition Proposal; provided, however, that prior to participating in any discussions Proposal and the identity of the Person making such proposal or negotiations or furnishing any such information, the Company shall receive from such Person an executed confidentiality agreement on terms that are not materially less favorable to the Company than the Confidentiality Agreementrequest. The notice shall indicate the terms and conditions of the proposal or request and the identity of the Person making it, and the Company will promptly notify Acquiror of any material modification of or material amendment to any Acquisition Proposal (and the terms of such modification or amendment); provided, however, that, without limiting what changes may be material, any change in the consideration to be paid with respect to the Acquisition Proposal shall be deemed to be a material modification or a material amendmentrequest. The Company shall keep Acquiror informed, on a reasonably current basis, of the status (including amendments or proposed amendments) of any negotiations, discussions and documents with respect to such Acquisition Proposal or request.
(e) Holding, Acquiror or the Company may terminate this Agreement, if the Company's Board of Directors or the Special Committee, after consultation with its financial and legal advisors, shall have determined (i) to approve or recommend an Acquisition Proposal after concluding that the Acquisition Proposal constitutes a Superior Proposal and (ii) to enter into a binding agreement concerning the Acquisition Proposal; provided, however, that the Company may not exercise its right to terminate under this Section 6.3(e), unless (1) the Company shall have provided to Acquiror at least three (3) Business Days' prior written notice that its Board of Directors or the Special Committee has authorized the termination and intends to terminate this Agreement pursuant to this Section 6.3(e), specifying the material terms and conditions of the Acquisition Proposal, and (2) Acquiror does not make, within three (3) Business Days of delivery of the notice, an offer such that a majority of the disinterested members of the Company's Board of Directors or the Special Committee determines that the foregoing Acquisition Proposal no longer constitutes a Superior Proposal. In connection with the forgoing, the Company agrees that it will not enter into an agreement which binds the Company with respect to such an Acquisition Proposal unless (x) the Company simultaneously delivers to Acquiror the notice contemplated by the foregoing proviso, (y) such agreement is not binding on the Company until three (3) Business Days after delivery of the notice set forth in this Section 6.3(e) and (z) the Company has the right under such agreement to unilaterally terminate such agreement prior to the termination of this Agreement without any payment or other liability or obligation of any kind.
(f) The Company shall immediately cease, and shall cause any party acting on its behalf to cease, and cause to be terminated any existing discussions or negotiations with any Third Party conducted heretofore with respect to any of the foregoing and shall request any such parties in possession of confidential information about the Company or its Subsidiaries that was furnished by or on behalf of the Company or its Subsidiaries to return or destroy all such information in the possession of any such party or the agent or advisor of any such party.
Appears in 1 contract
Acquisition Proposals; Board Recommendation. (a) The Company agrees that it shall not, nor and the Company shall it permit any Company Subsidiary cause its Subsidiaries and its and their respective officers, directors, employees, attorneys, accountants, advisors, representatives and agents ("Representatives") not to, nor shall it authorize or knowingly permit any officer, director, employee, investment banker, attorney, accountant, agent or other advisor or representative of the Company or any Company Subsidiary, directly or indirectly, to (i) solicit or initiate the submission of or knowingly encourage any proposal that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (ii) participate or engage in any discussions or negotiations regardingwith, or furnish disclose or provide any non-public information relating to any Person any information with respect the Company or its Subsidiaries to, or take any other action knowingly to facilitate any inquiries or the making of any proposal that constitutes or that would reasonably be expected to lead afford access to any of the properties, books or records of the Company or its Subsidiaries to, any Person with respect to an Acquisition Proposal, (iii) enter into any agreement or agreement in principle with any Person with respect to an Acquisition Proposal, or (iv) grant any waiver or release under any standstill or similar agreement with respect to by any class of the Company's equity securities or (iv) enter into any agreement with respect to any Person who has made an Acquisition Proposal; , provided, however, that if prior to obtaining the Company receives Shareholder Approval, the Company and its Representatives may take any of the actions described in clause (ii) of this subsection (a) in response to any Person that has made a bona fide written Acquisition Proposal if, but only if, (A) such Person has submitted an unsolicited written Acquisition Proposal which did not result from a Third Party violation by the Company of its obligations under this Section 6.2, (B) such Person has entered into a confidentiality agreement with the Company on terms that are no less favorable to the Company's Company than the Confidentiality Agreement, (C) the Board of Directors or the Special Committee determines has determined in good faith is by resolution duly adopted, after consultation with outside legal counsel and a financial advisor of nationally recognized reputation, that such Acquisition Proposal constitutes or could reasonably be expected to lead to the delivery of a Superior Proposal from that Third PartyProposal, and (D) prior to, or substantially concurrent with, disclosing or providing any such non-public information, the Company may, subject shall disclose or provide all such information to compliance with the other provisions of this Section 6.3, furnish information to, and engage in discussions and negotiations with, such Third Party with respect to its Acquisition Proposal ("Permitted Actions"). Notwithstanding the foregoing, the Board of Directors shall not take any Permitted Actions unless the Company provides Acquiror with reasonable advance notice thereofAcquiror.
(b) Except as permitted The Company shall promptly advise Parent and Acquiror, telephonically and in writing, of the Company's receipt of any Acquisition Proposal or any proposal, inquiry or request related to, or that could reasonably be expected to lead to, or that contemplates the possibility of, any Acquisition Proposal. The Company shall promptly provide Parent and Acquiror, in writing, with the terms and conditions of any such Acquisition Proposal, or such proposal, inquiry or request, and the identity of the Person making the same. Immediately upon determination by this Section 6.3(b), neither the Board of Directors of the Company that an Acquisition Proposal constitutes a Superior Proposal, the Company shall deliver to Parent and Acquiror a written notice (a "Notice of Superior Proposal") advising them that the Board of Directors of the Company has so determined, specifying the terms and conditions of such Superior Proposal and the identity of the Person making such Superior Proposal, and providing Parent and Acquiror with a copy of the Superior Proposal.
(c) The Board of Directors of the Company has adopted a resolution recommending the approval of this Agreement and the Merger by the Company's Shareholders (the "Company Recommendation"), and, except as provided in the next sentence, the Board of Directors of the Company shall at all times recommend approval of this Agreement and the Merger by the Company's Shareholders. The Board of Directors or the Special Committee nor any committee thereof of the Company shall amend, withdraw, modify, change, condition be permitted to (i) withdraw or qualify modify in any a manner adverse to Acquiror, Parent and Acquiror (or not to continue to make) the Company Recommendation (it being understood and agreed ii) approve or recommend a Superior Proposal, and/or (iii) enter into an agreement regarding such Superior Proposal if, but only if, (a) a majority of the Board of Directors of the Company or the Special Committee has reasonably determined in good faith, following consultation with outside counsel, that a communication by taking such action is required in order for the members of the Board of Directors of the Company or the Special Committee to the Company Stockholders pursuant comply with their fiduciary duties to Rule 14d-9(f) of the Exchange Act, or any similar communication to the Company Stockholders in connection with the making or amendment of a tender offer or exchange offer, shall not be deemed to constitute a withdrawal, modification, amendment, condition or qualification of the Company Recommendation for all purposes of this Agreement, including this Section 6.3 and Section 10.1(e)). Notwithstanding the foregoing, in the event that the Board of Directors of the Company or the Special Committee takes the actions set forth in Section 6.3(e), the Board of Directors of the Company or the Special Committee may (i) withdraw or modify in any manner adverse to Acquiror, the Company Recommendation and (ii) approve or recommend, or propose to approve or recommend, any Acquisition Proposal.
(c) Unless the Company's Board of Directors or the Special Committee has previously withdrawnShareholders under applicable law, or is concurrently therewith withdrawing, the Company Recommendation in accordance with this Section 6.3, neither the Company's Board of Directors nor any committee thereof shall recommend any Acquisition Proposal to the Company Stockholders. Notwithstanding the foregoing, nothing contained in this Section 6.3(c) or elsewhere in this Agreement shall prevent the Company's Board of Directors or the Special Committee from complying with Rule 14e-2 under the Exchange Act with respect to any Acquisition Proposal or making any disclosure required by or otherwise complying with applicable Law.
(d) The Company shall notify Acquiror promptly (but in no event later than the next Business Day) after receipt by the Company of any Acquisition Proposal or any request for information relating to the Company or any of its Subsidiaries in connection with an Acquisition Proposal or for access to the properties, books or records of the Company or any of its Subsidiaries or any request for a waiver or release under any standstill or similar agreement, by any Person that informs the Board of Directors of the Company or such Subsidiary that it is considering making, or has made an Acquisition Proposal; provided, however, that prior to participating in any discussions or negotiations or furnishing any such information, the Company shall receive from such Person an executed confidentiality agreement on terms that are not materially less favorable to the Company than the Confidentiality Agreement. The notice shall indicate the terms and conditions of the proposal or request and the identity of the Person making it, and the Company will promptly notify Acquiror of any material modification of or material amendment to any Acquisition Proposal (and the terms of such modification or amendment); provided, however, that, without limiting what changes may be material, any change in the consideration to be paid with respect to the Acquisition Proposal shall be deemed to be a material modification or a material amendment. The Company shall keep Acquiror informed, on a reasonably current basis, of the status of any negotiations, discussions and documents with respect to such Acquisition Proposal or request.
(e) Holding, Acquiror or the Company may terminate this Agreement, if the Company's Board of Directors or the Special Committee, after consultation with its financial and legal advisors, shall have determined (i) to approve or recommend an Acquisition Proposal after concluding that the Acquisition Proposal constitutes a Superior Proposal and (ii) to enter into a binding agreement concerning the Acquisition Proposal; provided, however, that the Company may not exercise its right to terminate under this Section 6.3(e), unless (1b) the Company shall have provided to has given Parent and Acquiror at least three (3) Business Days' prior written notice of its intention to take such action, the Company shall have considered in good faith any proposed changes to this Agreement proposed by Parent or Acquiror so that the Superior Proposal of such Person no longer constitutes a Superior Proposal (it being understood and agreed that any material amendment to the financial or other material terms of such Superior Proposal shall require a new three (3) Business Day period to afford Parent and Acquiror the opportunity to negotiate with the Company as contemplated above), (c) the Company has fully complied with its obligations under this Section 6.2, and (d) the Company shall have terminated this Agreement in accordance with the provisions of Section 10.1(f) and shall have paid Parent the Parent Expense Reimbursement Amount in accordance with Section 10.2(b) and the Termination Fee in accordance with Section 10.2(c). Nothing in this Section 6.2 shall prohibit the Company or its Board of Directors or the Special Committee has authorized from taking and disclosing to the termination shareholders of the Company a position, or any information, with respect to an Acquisition Proposal by a Third Party to the extent required under applicable law (including Rule 14d-9 and intends to terminate Rule 14e-2 promulgated under the Exchange Act) or stock exchange regulation; provided that unless and until this Agreement pursuant to is terminated in accordance with Section 10.1 hereof, nothing in this Section 6.3(e), specifying sentence shall affect the material terms and conditions obligations of the Acquisition Proposal, Company and (2) Acquiror does not make, within three (3) Business Days of delivery of the notice, an offer such that a majority of the disinterested members of the Company's its Board of Directors or the Special Committee determines that the foregoing Acquisition Proposal no longer constitutes a Superior Proposal. In connection with the forgoing, the Company agrees that it will not enter into an agreement which binds the Company with respect to such an Acquisition Proposal unless (x) the Company simultaneously delivers to Acquiror the notice contemplated by the foregoing proviso, (y) such agreement is not binding on the Company until three (3) Business Days after delivery of the notice set forth in this Section 6.3(e) and (z) the Company has the right under such agreement to unilaterally terminate such agreement prior to the termination any other provision of this Agreement without any payment or other liability or obligation of any kindAgreement, including Section 8.2(b).
(f) The Company shall immediately cease, and shall cause any party acting on its behalf to cease, and cause to be terminated any existing discussions or negotiations with any Third Party conducted heretofore with respect to any of the foregoing and shall request any such parties in possession of confidential information about the Company or its Subsidiaries that was furnished by or on behalf of the Company or its Subsidiaries to return or destroy all such information in the possession of any such party or the agent or advisor of any such party.
Appears in 1 contract
Acquisition Proposals; Board Recommendation. (a) The Company Epitope agrees that it shall not, nor shall it permit any Company Epitope Subsidiary to, nor and it shall it authorize or knowingly permit direct and use its reasonable best efforts to cause any officer, director, employee, investment banker, attorney, accountant, agent or other advisor or representative of the Company Epitope or any Company Epitope Subsidiary, not to directly or indirectly, to (i) solicit solicit, initiate or initiate knowingly facilitate or encourage the submission of any Acquisition ProposalProposal for Epitope, (ii) participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to, to or take any other action knowingly to facilitate any inquiries or the making of any proposal that constitutes or that would reasonably be expected to lead to any an Acquisition ProposalProposal for Epitope, (iii) grant any waiver or release under any standstill or similar agreement with respect to any class of the CompanyEpitope's equity securities or (iv) enter into any agreement with respect to any Acquisition Proposal; provided, however, that if the Company receives an unsolicited Acquisition Proposal from a Third Party that the Company's Board of Directors or the Special Committee determines for Epitope. Notwithstanding anything in good faith is or could reasonably be expected to lead this Agreement to the delivery of a Superior Proposal from that Third Partycontrary, the Company may, subject to compliance with the other provisions of this Section 6.3, furnish information to, and engage in discussions and negotiations with, such Third Party with respect to Epitope or its Acquisition Proposal ("Permitted Actions"). Notwithstanding the foregoing, the Board of Directors shall not take any Permitted Actions unless the Company provides Acquiror with reasonable advance notice thereof.
be permitted to (bA) Except as permitted by this Section 6.3(b), neither the Board of Directors of the Company, the Special Committee nor any committee thereof shall amend, withdraw, modify, change, condition or qualify in any manner adverse to Acquiror, the Company Recommendation (it being understood and agreed that a communication by the Board of Directors of the Company or the Special Committee to the Company Stockholders pursuant to Rule 14d-9(f) of the Exchange Actextent applicable, or any similar communication to the Company Stockholders in connection with the making or amendment of a tender offer or exchange offer, shall not be deemed to constitute a withdrawal, modification, amendment, condition or qualification of the Company Recommendation for all purposes of this Agreement, including this Section 6.3 and Section 10.1(e)). Notwithstanding the foregoing, in the event that the Board of Directors of the Company or the Special Committee takes the actions set forth in Section 6.3(e), the Board of Directors of the Company or the Special Committee may (i) withdraw or modify in any manner adverse to Acquiror, the Company Recommendation and (ii) approve or recommend, or propose to approve or recommend, any Acquisition Proposal.
(c) Unless the Company's Board of Directors or the Special Committee has previously withdrawn, or is concurrently therewith withdrawing, the Company Recommendation in accordance with this Section 6.3, neither the Company's Board of Directors nor any committee thereof shall recommend any Acquisition Proposal to the Company Stockholders. Notwithstanding the foregoing, nothing contained in this Section 6.3(c) or elsewhere in this Agreement shall prevent the Company's Board of Directors or the Special Committee from complying comply with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal for Epitope, (B) in response to an unsolicited bona fide written Acquisition Proposal for Epitope by any Person, recommend approval of such an unsolicited bona fide written Acquisition Proposal for Epitope to its stockholders or effect an Adverse Change in the Epitope Recommendation, or (C) engage in any discussions or negotiations with, or provide any information to, any Person in response to an unsolicited bona fide Acquisition Proposal for Epitope by any such Person, if and only to the extent that Epitope (including for this purpose, if authorized by Epitope, all Epitope Subsidiaries or any officer, director, employee, investment banker, attorney, accountant, agent or other advisor or representative of Epitope or any Epitope Subsidiaries) have not violated in any material respect any of the restrictions contained in Section 6.2(a) and, in any such case as is referred to in clause (B) or (C), (i) the Epitope Stockholders Meeting shall not have occurred, (ii) the Epitope Board of Directors (x) in the case of clause (B) above, concludes in good faith after consultation with its financial advisors and counsel, and taking into account, among other things, all legal, financial, regulatory and other aspects of such Acquisition Proposal, and the nature of the Person making the Acquisition Proposal, that such written Acquisition Proposal for Epitope constitutes a Superior Proposal, and provides written notice of termination of this Agreement pursuant to Section 10.1(e) (provided that such termination shall not be effective until such time as Epitope makes the payment to STC contemplated by Section 10.2(b))or (y) in the case of clause (C) above concludes in good faith after consultation with its financial advisors and counsel, and taking into account, among other things, all legal, financial, regulatory and other aspects of such Acquisition Proposal, and the nature of the Person making the Acquisition Proposal, that such Acquisition Proposal for Epitope would reasonably be expected to result in a Superior Proposal, (iii) prior to providing any information or data to any Acquisition Proposal or making any disclosure required by or otherwise complying with applicable Law.
(d) The Company shall notify Acquiror promptly (but in no event later than the next Business Day) after receipt by the Company of any Acquisition Proposal or any request for information relating to the Company or any of its Subsidiaries Person in connection with an Acquisition Proposal or for access to the properties, books or records of the Company or any of its Subsidiaries or any request for a waiver or release under any standstill or similar agreement, Epitope by any Person that informs such Person, the Epitope Board of Directors of the Company or such Subsidiary that it is considering making, or has made an Acquisition Proposal; provided, however, that prior to participating in any discussions or negotiations or furnishing any such information, the Company shall receive receives from such Person an executed confidentiality agreement on containing confidentiality terms that are not materially less favorable to at least as stringent as those contained in the Company than confidentiality agreement between Epitope and STC dated as of March 23, 2000 (the "Confidentiality Agreement. The notice shall indicate the terms "), and conditions (iv) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, Epitope notifies STC promptly of the proposal such inquiries, proposals or request and the identity of the Person making offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, it, and its subsidiaries, its or its subsidiaries' officers or directors, or any of its agents or representatives indicating, in connection with such notice, the Company will promptly notify Acquiror of any material modification of or material amendment to any Acquisition Proposal (and the terms name of such modification or amendment); provided, however, that, without limiting what changes may be material, any change in the consideration to be paid with respect to the Acquisition Proposal shall be deemed to be a material modification or a material amendment. The Company shall keep Acquiror informed, on a reasonably current basis, of the status of any negotiations, discussions Person and documents with respect to such Acquisition Proposal or request.
(e) Holding, Acquiror or the Company may terminate this Agreement, if the Company's Board of Directors or the Special Committee, after consultation with its financial and legal advisors, shall have determined (i) to approve or recommend an Acquisition Proposal after concluding that the Acquisition Proposal constitutes a Superior Proposal and (ii) to enter into a binding agreement concerning the Acquisition Proposal; provided, however, that the Company may not exercise its right to terminate under this Section 6.3(e), unless (1) the Company shall have provided to Acquiror at least three (3) Business Days' prior written notice that its Board of Directors or the Special Committee has authorized the termination and intends to terminate this Agreement pursuant to this Section 6.3(e), specifying the material terms and conditions of any inquiries, proposals or offers and shall furnish only information and data that has been previously furnished to STC. Epitope will provide STC with a copy of any written Acquisition Proposal or amendments or supplements thereto, and shall thereafter inform STC on a prompt basis of any changes to the terms and conditions of such Acquisition Proposal, and (2. Epitope will take the necessary steps to inform promptly the individuals or entities referred to in the first sentence of this Section 6.2(a) Acquiror does not make, within three (3) Business Days of delivery of the notice, an offer such that a majority of the disinterested members of the Company's Board of Directors or the Special Committee determines that the foregoing Acquisition Proposal no longer constitutes a Superior Proposal. In connection with the forgoing, the Company agrees that it will not enter into an agreement which binds the Company with respect to such an Acquisition Proposal unless (x) the Company simultaneously delivers to Acquiror the notice contemplated by the foregoing proviso, (y) such agreement is not binding on the Company until three (3) Business Days after delivery of the notice set forth obligations undertaken in this Section 6.3(e) and (z) the Company has the right under such agreement to unilaterally terminate such agreement prior to the termination of this Agreement without any payment or other liability or obligation of any kind6.2.
(f) The Company shall immediately cease, and shall cause any party acting on its behalf to cease, and cause to be terminated any existing discussions or negotiations with any Third Party conducted heretofore with respect to any of the foregoing and shall request any such parties in possession of confidential information about the Company or its Subsidiaries that was furnished by or on behalf of the Company or its Subsidiaries to return or destroy all such information in the possession of any such party or the agent or advisor of any such party.
Appears in 1 contract
Sources: Merger Agreement (Epitope Inc/Or/)
Acquisition Proposals; Board Recommendation. (a) The Company agrees that it Seller shall notimmediately terminate, nor and shall it permit any Company Subsidiary tocause its Representatives to immediately terminate, nor shall it authorize or knowingly permit any officer, director, employee, investment banker, attorney, accountant, agent or other advisor or representative of the Company or any Company Subsidiary, directly or indirectly, to (i) solicit or initiate the submission of any Acquisition Proposal, (ii) participate in any all existing discussions or negotiations regardingnegotiations, or furnish to if any, with any Person any information conducted heretofore with respect to, or take any other action knowingly to facilitate any inquiries or the making of any proposal that constitutes or that would reasonably be expected to lead to any to, an Acquisition Proposal, (iii) grant . Seller or its Representatives shall immediately demand that each Person that has heretofore executed a confidentiality agreement with or for the benefit of Seller or any waiver or release under any standstill or similar agreement of its Representatives with respect to any class such Person’s consideration of the Company's equity securities or (iv) enter into any agreement with respect to any Acquisition Proposal; provided, however, that if the Company receives an unsolicited a possible Acquisition Proposal from a Third Party to immediately return or destroy (which destruction shall be certified in writing by such Person to Seller) all confidential information heretofore furnished by Seller or any of its Representatives to such Person or any of its Representatives.
(b) From the date of this Agreement until the Closing Date, Seller shall not, and Seller shall cause its Representatives not to, (i) solicit, initiate, encourage or take any other action to facilitate any proposal, inquiry or request that the Company's Board of Directors constitutes, or the Special Committee determines in good faith is or could may reasonably be expected to lead to the delivery of a Superior Proposal from that Third Party, the Company may, subject to compliance with the other provisions of this Section 6.3, furnish information to, and an Acquisition Proposal, (ii) participate or engage in discussions and or negotiations with, such Third Party with respect to its Acquisition Proposal ("Permitted Actions"). Notwithstanding the foregoing, the Board of Directors shall not take or disclose or provide any Permitted Actions unless the Company provides Acquiror with reasonable advance notice thereof.
(b) Except as permitted by this Section 6.3(b), neither the Board of Directors of the Company, the Special Committee nor any committee thereof shall amend, withdraw, modify, change, condition or qualify in any manner adverse to Acquiror, the Company Recommendation (it being understood and agreed that a communication by the Board of Directors of the Company or the Special Committee to the Company Stockholders pursuant to Rule 14d-9(f) of the Exchange Act, or any similar communication to the Company Stockholders in connection with the making or amendment of a tender offer or exchange offer, shall not be deemed to constitute a withdrawal, modification, amendment, condition or qualification of the Company Recommendation for all purposes of this Agreement, including this Section 6.3 and Section 10.1(e)). Notwithstanding the foregoing, in the event that the Board of Directors of the Company or the Special Committee takes the actions set forth in Section 6.3(e), the Board of Directors of the Company or the Special Committee may (i) withdraw or modify in any manner adverse to Acquiror, the Company Recommendation and (ii) approve or recommend, or propose to approve or recommend, any Acquisition Proposal.
(c) Unless the Company's Board of Directors or the Special Committee has previously withdrawn, or is concurrently therewith withdrawing, the Company Recommendation in accordance with this Section 6.3, neither the Company's Board of Directors nor any committee thereof shall recommend any Acquisition Proposal to the Company Stockholders. Notwithstanding the foregoing, nothing contained in this Section 6.3(c) or elsewhere in this Agreement shall prevent the Company's Board of Directors or the Special Committee from complying with Rule 14e-2 under the Exchange Act with respect to any Acquisition Proposal or making any disclosure required by or otherwise complying with applicable Law.
(d) The Company shall notify Acquiror promptly (but in no event later than the next Business Day) after receipt by the Company of any Acquisition Proposal or any request for non-public information relating to the Company Seller to, or afford access to any of its Subsidiaries in connection with an Acquisition Proposal or for access to the properties, books or records of the Company Seller to, any Person that has made an Acquisition Proposal or such a proposal, inquiry or request or any of such Person’s Affiliates or Subsidiaries or any of its or their Representatives, (iii) except as provided in this Section 7.4 and subject to compliance herewith, enter into any agreement or agreement in principle with any Person that has made an Acquisition Proposal or such a proposal, inquiry or request or any of such Person’s Affiliates or Subsidiaries or any request for a of its or their Representatives, or (iv) grant any waiver or release under under, or fail to enforce to the maximum extent possible, any standstill or similar agreement, agreement by any Person that informs the Board of Directors of the Company or such Subsidiary that it is considering making, or who has made an Acquisition ProposalProposal or such a proposal, inquiry or request; provided, however, that prior to participating obtaining Stockholder Approval, Seller and its Representatives may take any of the actions described in any discussions or negotiations or furnishing any such informationclause (ii) of this Section 7.4(b) in respect of a Person that makes an Acquisition Proposal subsequent to the date hereof if, the Company shall receive from but only if, (A) such Person has submitted an executed unsolicited bona fide written Acquisition Proposal that did not result from a violation by Seller of its obligations under this Section 7.4 or Section 7.12 and at such t▇▇▇ ▇▇▇▇▇▇ has fully complied in all material respects with its obligations under this Section 7.4, and Seller is proceeding in good faith with respect to its obligations under Section 7.12, to the extent applicable, (B) such Person has entered into a confidentiality agreement with Seller on terms that are not materially less favorable substantially similar to the Company than terms of the Confidentiality Agreement, (C) such Acquisition Proposal constitutes a Superior Proposal, (D) a majority of the board of directors of Seller has reasonably determined in good faith, following consultation with outside counsel expert in Delaware law, that taking such action is required in order for the members of the board of directors of Seller to comply with their fiduciary duties imposed by Delaware law, and (E) prior to disclosing or providing any such non-public information described in clause (ii) of this Section 7.4(b), Seller shall disclose or provide all such information to Purchaser.
(c) Seller shall immediately advise Purchaser, telephonically and in writing, of Seller’s receipt of any Acquisition Proposal, substantive indication of interest or any proposal, inquiry or request related to, or that may reasonably be expected to lead to, or that contemplates the possibility of, any Acquisition Proposal. The notice Seller shall indicate immediately provide Purchaser, in writing and in detail, with the terms and conditions of the proposal any such Acquisition Proposal, or request such proposal, inquiry or request, and the identity of the Person making itthe same, and the Company will promptly notify Acquiror copies of any material modification written materials received from such Person. Seller shall continuously update, but in no event not later than one day after such discussions or negotiations, Purchaser on the status and content of any discussions or material amendment to negotiations regarding any Acquisition Proposal (and the terms shall immediately advise Purchaser, telephonically and in writing, of such modification or amendment); provided, however, that, without limiting what changes may be material, any change in the consideration to be paid with respect to the Acquisition Proposal shall be deemed to be a material modification or a material amendment. The Company shall keep Acquiror informed, on a reasonably current basis, any of the status price, form of consideration, structure, terms and conditions or other meaningful terms of any negotiations, discussions and documents with respect to such Acquisition Proposal or request.
(e) Holding, Acquiror or Proposal. Immediately upon determination by the Company may terminate this Agreement, if the Company's Board board of Directors or the Special Committee, after consultation with its financial and legal advisors, shall have determined (i) to approve or recommend directors of Seller that an Acquisition Proposal after concluding that the Acquisition Proposal constitutes a Superior Proposal, Seller shall deliver to Purchaser a written notice advising Purchaser that the board of directors of Seller has so determined, specifying in detail the terms and conditions of such Superior Proposal.
(d) The board of directors of Seller has adopted a resolution unanimously recommending the adoption and approval of this Agreement and the transactions contemplated hereby by the stockholders of Seller (the “Seller Recommendation”), and, except as provided in the next sentence, the board of directors of Seller shall at all times recommend approval of this Agreement and the transactions contemplated hereby by the stockholders of Seller and shall not withdraw or modify, or propose to withdraw or modify, in a manner adverse to Purchaser, its approval or recommendation of this Agreement and the transactions contemplated hereby. The board of directors of Seller shall be permitted to (i) withdraw or modify in a manner adverse to Purchaser (or not to continue to make) its recommendation to the stockholders of Seller with respect to a Superior Proposal and or (ii) to enter into an agreement relating to a binding Superior Proposal if, but only if, (A) a majority of the board of directors of Seller has reasonably determined in good faith, following consultation with outside counsel expert in Delaware law, that taking such action is required in order for the members of the board of directors of Seller to comply with their fiduciary duties imposed by Delaware law, (B) Seller has given Purchaser three Business Days’ prior written notice of its intention to withdraw or modify such recommendation or enter into such Agreement, Seller has negotiated in good faith with Purchaser to revise this Agreement (if so requested by Purchaser) so that the Superior Proposal of such Person no longer constitutes a Superior Proposal, and the board of directors of Seller has considered in good faith any proposed changes to this Agreement proposed by Purchaser (it being understood and agreed that any amendment to the financial or other material terms of such Superior Proposal shall require a new three Business Day period to afford Purchaser time to negotiate with Seller as contemplated above), (C) Seller has fully complied with its obligations under this Section 7.4, and (D) simultaneously with entering into any such agreement concerning relating to a Superior Proposal, Seller shall pay the Termination Fee in accordance with Section 4.2. Nothing in this Section 7.4 shall prohibit Seller or its board of directors from taking and disclosing to the stockholders of Seller a position with respect to an Acquisition ProposalProposal by a Third Party to the extent required under the Exchange Act; provided, however, that the Company may not exercise its right to terminate under this Section 6.3(e), unless (1) the Company shall have provided to Acquiror at least three (3) Business Days' prior written notice that its Board of Directors or the Special Committee has authorized the termination and intends to terminate until this Agreement pursuant to this is terminated in accordance with Section 6.3(e)4.2, specifying the material terms and conditions of the Acquisition Proposal, and (2) Acquiror does not make, within three (3) Business Days of delivery of the notice, an offer such that a majority of the disinterested members of the Company's Board of Directors or the Special Committee determines that the foregoing Acquisition Proposal no longer constitutes a Superior Proposal. In connection with the forgoing, the Company agrees that it will not enter into an agreement which binds the Company with respect to such an Acquisition Proposal unless (x) the Company simultaneously delivers to Acquiror the notice contemplated by the foregoing proviso, (y) such agreement is not binding on the Company until three (3) Business Days after delivery of the notice set forth nothing in this Section 6.3(e) sentence shall affect the obligations of Seller and (z) the Company has the right its board of directors under such agreement to unilaterally terminate such agreement prior to the termination any other provision of this Agreement without any payment or other liability or obligation of any kindAgreement, including Section 7.12.
(f) The Company shall immediately cease, and shall cause any party acting on its behalf to cease, and cause to be terminated any existing discussions or negotiations with any Third Party conducted heretofore with respect to any of the foregoing and shall request any such parties in possession of confidential information about the Company or its Subsidiaries that was furnished by or on behalf of the Company or its Subsidiaries to return or destroy all such information in the possession of any such party or the agent or advisor of any such party.
Appears in 1 contract
Acquisition Proposals; Board Recommendation. (a) The Company agrees that it shall not, nor shall it permit any Company Subsidiary to, nor shall it authorize or knowingly permit any officer, director, employee, investment banker, attorney, accountant, agent or other advisor or representative of the Company or any Company Subsidiary, directly or indirectly, to (i) solicit take any action to solicit, initiate or initiate facilitate or encourage the submission of any Acquisition Proposal, (ii) participate engage in any discussions or negotiations regarding, or furnish to any Person any non-public information with respect to, or take any other action knowingly to facilitate any inquiries or the making of any proposal that constitutes 38 44 constitutes, or that would may be reasonably be expected to lead to to, any Acquisition Proposal, (iii) grant any waiver or release under any standstill or similar agreement with respect to any class of the Company's equity securities or (iv) enter into any agreement with respect to any Acquisition Proposal, other than in the manner contemplated by Section 6.03(d); provided, however, that if the Company receives an unsolicited Acquisition Proposal from a Third Party that the Company's Board of Directors or the Special Committee determines in good faith is or could reasonably be expected to lead to the delivery of a Superior Proposal from that Third Party, the Company may, subject to compliance with the other provisions of this Section 6.3, furnish information to, and engage in discussions and negotiations with, such Third Party with respect to its Acquisition Proposal ("Permitted Actions"). Notwithstanding the foregoing, the Board of Directors shall not may take any Permitted Actions unless actions described in the Company provides Acquiror with reasonable advance notice thereof.
foregoing clauses (b) Except as permitted by this Section 6.3(bi), neither the Board (ii), (iii), or (iv) in respect of Directors of the Companyany Person who makes a bona fide Acquisition Proposal, the Special Committee nor any committee thereof shall amend, withdraw, modify, change, condition or qualify in any manner adverse to Acquiror, the Company Recommendation but only if (it being understood and agreed that a communication by x) the Board of Directors of the Company or determines in good faith (after receipt of advice of its outside legal counsel) that it is required to take such actions in order to comply with its fiduciary duties under applicable law and (y) prior to furnishing any non-public information to such Person, such Person shall have entered into a confidentiality agreement with the Special Committee Company on terms no less favorable to the Company Stockholders pursuant than the Confidentiality Agreement between the Company and Parent dated as of January 5, 1999. The Company shall cease and cause to Rule 14d-9(f) of the Exchange Actbe terminated immediately all existing discussions or negotiations, if any, with any Persons conducted heretofore with respect to, or any similar communication that could be reasonably expected to the Company Stockholders in connection with the making or amendment of a tender offer or exchange offer, shall not be deemed to constitute a withdrawal, modification, amendment, condition or qualification of the Company Recommendation for all purposes of this Agreement, including this Section 6.3 and Section 10.1(e)). Notwithstanding the foregoing, in the event that the Board of Directors of the Company or the Special Committee takes the actions set forth in Section 6.3(e), the Board of Directors of the Company or the Special Committee may (i) withdraw or modify in any manner adverse to Acquiror, the Company Recommendation and (ii) approve or recommend, or propose to approve or recommendlead to, any Acquisition Proposal.
(cb) Unless the Company's Board of Directors or the Special Committee has previously withdrawn, or is concurrently therewith withdrawing, the Company Recommendation in accordance with this Section 6.36.03(d), neither the Company's Board of Directors nor any committee thereof shall recommend any Acquisition Proposal to the Company Stockholdersstockholders. Notwithstanding the foregoing, nothing contained in this Section 6.3(c6.03(b) or elsewhere in this Agreement shall prevent the Company's Board of Directors or the Special Committee from complying with Rule 14e-2 under the Exchange 1934 Act with respect to any Acquisition Proposal or making any disclosure required by or otherwise complying with applicable Lawlaw.
(dc) The Company shall notify Acquiror promptly Promptly (but in no event later than the next Business Day24 hours) after receipt by the Company or any Company Subsidiary (or any of their respective directors, officers, agents or advisors) of any Acquisition Proposal Proposal, any contacts concerning, or any request for non-public information relating to the Company or any of its Subsidiaries in connection with an Acquisition Proposal or for access to the properties, books or records of the Company or any of its Subsidiaries Company Subsidiary or any request for a waiver or release under any standstill or similar agreement, by any Person that informs the Board of Directors of the Company has made an Acquisition Proposal or such Subsidiary indicates that it is considering making, or has made making an Acquisition Proposal; provided, however, that prior to participating in any discussions or negotiations or furnishing any such information, the Company shall receive from notify Parent that a Person may be considering making an Acquisition Proposal, which notice shall state the identity of such Person an executed confidentiality agreement on terms that are not materially less favorable to and the Company than the Confidentiality Agreement. The notice shall indicate the material terms and conditions of the proposal or request and the identity of the Person making it, and the Company will promptly notify Acquiror of any material modification of or material amendment to any Acquisition Proposal (and the terms of such modification or amendment); provided, however, that, without limiting what changes may be material, any change in the consideration to be paid with respect to the Acquisition Proposal shall be deemed to be a material modification or a material amendmentproposal. The Company shall keep Acquiror informed, on a Parent reasonably current basis, of the status apprised of any negotiations, discussions and documents material developments with respect to such Acquisition Proposal or requestproposal.
(ed) HoldingPursuant to the terms of Section 10.01, Acquiror or the Company may terminate this Agreement, Agreement if (x) the Company's Board of Directors or the Special Committee, after consultation with its financial and legal advisors, shall have determined (i) authorized the 39 45 Company, subject to approve or recommend an Acquisition Proposal after concluding that the Acquisition Proposal constitutes a Superior Proposal terms and (ii) conditions of this Agreement, to enter into a binding agreement concerning a transaction that constitutes a Superior Proposal, (y) the Acquisition Proposal; Company notifies Parent that it intends to enter into such agreement, specifying the material terms and conditions of such agreement, and (z) the Company pays Parent the fee contemplated by Section 10.03(b) provided, however, that the Company may not exercise its right to terminate under this Section 6.3(e), unless (1) the Company shall have provided to Acquiror at least three (3) Business Days' prior written notice that its Board of Directors or the Special Committee has authorized the termination and intends to so terminate this Agreement pursuant to this Section 6.3(e), specifying the material terms and conditions of the Acquisition Proposal, and (2) Acquiror does not makeif, within three (3) Business Days of delivery of the notice, receiving such notice Parent makes an offer such that a majority of the disinterested members of the Company's Board of Directors or of the Special Committee Company determines that the foregoing Acquisition such Superior Proposal is no longer constitutes a Superior Proposal. In connection with the forgoing, Proposal (it being understood that the Company agrees that it will shall not enter into an such binding agreement which binds the Company with respect to during such an Acquisition Proposal unless (x) the Company simultaneously delivers to Acquiror the notice contemplated by the foregoing proviso, (y) such agreement is not binding on the Company until three (3) Business Days after delivery of the notice set forth in this Section 6.3(e) and (z) the Company has the right under such agreement to unilaterally terminate such agreement prior to the termination of this Agreement without any payment or other liability or obligation of any kindDay period).
(f) The Company shall immediately cease, and shall cause any party acting on its behalf to cease, and cause to be terminated any existing discussions or negotiations with any Third Party conducted heretofore with respect to any of the foregoing and shall request any such parties in possession of confidential information about the Company or its Subsidiaries that was furnished by or on behalf of the Company or its Subsidiaries to return or destroy all such information in the possession of any such party or the agent or advisor of any such party.
Appears in 1 contract
Acquisition Proposals; Board Recommendation. (a) The Company agrees that it shall not, nor shall it permit any Company Subsidiary to, nor shall it authorize or knowingly permit any officer, director, employee, investment banker, attorney, accountant, agent or other advisor or representative of the Company or any Company Subsidiary, directly or indirectly, to (i) solicit solicit, initiate or initiate otherwise knowingly encourage the submission of any Acquisition Proposal, (ii) participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to, or take any other action knowingly to facilitate any inquiries or the making of any proposal that constitutes constitutes, or that would reasonably be expected to lead to to, any Acquisition Proposal, (iii) grant any waiver or release under any standstill or similar agreement with respect to any class or series of the Company's ’s equity securities to the extent such waiver or release would permit the other party or parties to such agreement to actually acquire such securities or approve any matter for purposes of Section 203 of the DGCL with respect to any Third Party (for the avoidance of doubt, a waiver or release under such agreement that solely permits a proposal or offer, including, without limitation, an Acquisition Proposal, would not violate this clause (iii)) or (iv) enter into any agreement with respect to any Acquisition Proposal; provided, however, that if the Company receives an unsolicited Acquisition Proposal from a Third Party that the Company's ’s Board of Directors or the Special Committee determines in good faith is or could reasonably be expected to lead to the delivery of a Superior Proposal from that Third Party, the Company may, subject to compliance with all the other provisions of this Section 6.3, furnish information to, to and engage in discussions and negotiations with, with such Third Party with respect to its Acquisition Proposal ("“Permitted Actions"). Notwithstanding ”) if and only to the foregoingextent that, the Board of Directors or the Special Committee, by majority vote, concludes in good faith, after consultation with outside financial advisors and legal advisors, that, as a result of such Acquisition Proposal, such Permitted Action is necessary for the Board of Directors or the Special Committee to act in a manner consistent with their respective fiduciary duties under applicable Law. The Board of Directors of the Company or the Special Committee shall not take provide Acquiror with prompt notice (but in no event later than the next day) of its engaging in any Permitted Actions unless the Company provides Acquiror with reasonable advance notice thereofActions.
(b) Except as permitted by this Section 6.3(b), neither the Board of Directors of the Company, Company nor the Special Committee nor or any other committee thereof shall amend, withdraw, modify, change, condition or qualify in any manner adverse to Acquiror, the Company Recommendation (it being understood and agreed that a communication by the Board of Directors of the Company or the Special Committee to the Company Stockholders pursuant to Rule 14d-9(f) of the Exchange Act, or any similar communication to the Company Stockholders in connection with the making or amendment of a tender offer or exchange offeroffer by any Person other than the Company or any Company Subsidiary, shall not be deemed to constitute a withdrawal, modification, amendment, condition or qualification of the Company Recommendation for all purposes of this Agreement, including this Section 6.3 and Section 10.1(e)6.3). Notwithstanding the foregoing, in the event that the Board of Directors of the Company or the Special Committee takes the actions set forth in Section 6.3(e), the Board of Directors of the Company or the Special Committee may withdraw or modify the Company Recommendation in a manner adverse to Acquiror if (i) withdraw the Company has complied in all material respects with this Section 6.3, (ii) the Company shall have notified Parent at least two Business Days in advance of its intention to effect such withdrawal or modify in any manner adverse to Acquiror, modification of the Company Recommendation and (iiiii) approve the Board of Directors or recommendthe Special Committee, by majority vote, concludes in good faith, after consultation with outside financial advisors and legal advisors, that such withdrawal or propose modification is necessary for the Board of Directors or the Special Committee to approve or recommend, any Acquisition Proposalact in a manner consistent with their respective fiduciary duties under applicable Law.
(c) Unless the Company's ’s Board of Directors or the Special Committee has previously withdrawn, or is concurrently therewith withdrawing, the Company Recommendation in accordance with this Section 6.3, neither the Company's ’s Board of Directors nor the Special Committee or any other committee thereof shall recommend any Acquisition Proposal to the Company Stockholders. Notwithstanding the foregoing, nothing Nothing contained in this Section 6.3(c) 6.3 or elsewhere in this Agreement shall (i) prevent the Company's ’s Board of Directors or the Special Committee from complying with Rule 14e-2 under the Exchange Act with respect to any Acquisition Proposal or making any disclosure required by applicable Law or otherwise complying with (ii) prohibit accurate disclosure of factual information regarding the business, financial condition or results of operations of the Company, or the fact that an Acquisition Proposal has been made, the identity of the party making such Acquisition Proposal or the material terms of such Acquisition Proposal to the extent such information, facts, identity or terms are required to be disclosed under applicable Law.
(d) Notwithstanding anything in this Section 6.3 to the contrary, at any time prior to obtaining the Company Stockholder Approval, the Board of Directors of the Company or the Special Committee may, in response to a Superior Proposal that was unsolicited and that did not otherwise result from a breach of this Section 6.3, cause the Company to terminate this Agreement pursuant to Section 10.1(c)(ii) and concurrently enter into an agreement regarding such Superior Proposal; provided, however, that the Company shall not terminate this Agreement pursuant to Section 10.1(c)(ii), and any purported termination pursuant to Section 10.1(c)(ii) shall be void and of no force or effect (and the Company may not enter into such agreement regarding such Superior Proposal), unless the Company shall have complied in all material respects with all the provisions of this Section 6.3, including the notification provisions in this Section 6.3, and with all applicable requirements of Sections 10.2(b) (including the payment of the Termination Fee (as defined in Section 10.2(b)) prior to or concurrently with such termination) in connection with such Superior Proposal; and provided further, however, that the Company shall not exercise its right to terminate this Agreement pursuant to Section 10.1(c)(ii) until after the second Business Day following Parent’s receipt of written notice (a “Notice of Superior Proposal”) from the Company advising Parent that the Board of Directors of the Company or the Special Committee has received a Superior Proposal, specifying the material terms and conditions of the Superior Proposal, identifying the person making such Superior Proposal and stating that the Board of Directors of the Company or the Special Committee intends to exercise its right to terminate this Agreement pursuant to Section 10.1(c)(ii) (it being understood and agreed that, prior to any such termination taking effect, any amendment to the price or any other material term of a Superior Proposal (such amended Superior Proposal, a “Modified Superior Proposal”) shall require a new Notice of Superior Proposal and a new two Business Day period with respect to such Modified Superior Proposal).
(e) The Company shall notify Acquiror promptly (but in no event later than the next Business Day) after receipt by the Company of any Acquisition Proposal or any request for information relating to the Company or any of its Subsidiaries Company Subsidiary in connection with an Acquisition Proposal or for access to the properties, books or records of the Company or any of its Subsidiaries Company Subsidiary or any request for a waiver or release under any standstill or similar agreement, agreement by any Person that has made, or informs the Board of Directors or the Special Committee of the Company or such Company Subsidiary that it is considering making, or has made an Acquisition Proposal; provided, however, that prior to participating in any discussions or negotiations or furnishing any such information, the Company shall receive from such Person an executed confidentiality agreement on terms that are not materially less favorable to the Company than the Confidentiality Agreement, dated as of October 14, 2002 (the “Confidentiality Agreement”), between Holding and the Company. The notice shall indicate the material terms and conditions of the proposal or request and the identity of the Person making it, and the Company will promptly notify Acquiror of any material modification of or material amendment to any Acquisition Proposal (and the terms of such modification or amendment); provided, however, that, without limiting what changes may be material, any change in the form, amount, timing or other aspects of the consideration to be paid with respect to the Acquisition Proposal shall be deemed to be a material modification or a material amendment. The Company shall keep Acquiror informed, on a reasonably current basis, of the status of any negotiations, discussions and documents with respect to such Acquisition Proposal or request.
(e) Holding, Acquiror or the Company may terminate this Agreement, if the Company's Board of Directors or the Special Committee, after consultation with its financial and legal advisors, shall have determined (i) to approve or recommend an Acquisition Proposal after concluding that the Acquisition Proposal constitutes a Superior Proposal and (ii) to enter into a binding agreement concerning the Acquisition Proposal; provided, however, that the Company may not exercise its right to terminate under this Section 6.3(e), unless (1) the Company shall have provided to Acquiror at least three (3) Business Days' prior written notice that its Board of Directors or the Special Committee has authorized the termination and intends to terminate this Agreement pursuant to this Section 6.3(e), specifying the material terms and conditions of the Acquisition Proposal, and (2) Acquiror does not make, within three (3) Business Days of delivery of the notice, an offer such that a majority of the disinterested members of the Company's Board of Directors or the Special Committee determines that the foregoing Acquisition Proposal no longer constitutes a Superior Proposal. In connection with the forgoing, the Company agrees that it will not enter into an agreement which binds the Company with respect to such an Acquisition Proposal unless (x) the Company simultaneously delivers to Acquiror the notice contemplated by the foregoing proviso, (y) such agreement is not binding on the Company until three (3) Business Days after delivery of the notice set forth in this Section 6.3(e) and (z) the Company has the right under such agreement to unilaterally terminate such agreement prior to the termination of this Agreement without any payment or other liability or obligation of any kind.
(f) The Company shall immediately cease, and shall cause any party Person acting on its behalf to cease, and cause to be terminated any existing discussions or negotiations with any Third Party conducted heretofore with respect to any of the foregoing and shall request any such parties in possession of confidential information about the Company or its Subsidiaries any Company Subsidiary that was furnished by or on behalf of the Company or its Subsidiaries any such Subsidiary to return or destroy all such information in the possession of any such party or the agent or advisor of any such party.
(g) For the avoidance of doubt, the Company’s rights and obligations under this Section 6.3 shall not be affected by the provisions of the Island Purchase Agreement.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Cb Richard Ellis Corporate Facilities Management Inc)
Acquisition Proposals; Board Recommendation. (a) The Company agrees that it shall not, nor shall it permit any Company Subsidiary to, nor shall it authorize or knowingly permit any officer, director, employee, investment banker, attorney, accountant, agent or other advisor or representative of the Company or any Company SubsidiarySubsidiary ("REPRESENTATIVES"), directly or indirectly, to and it shall use reasonable best efforts to cause such persons not to (i) solicit solicit, initiate or initiate encourage any inquiries or the submission making of any proposal or offer with respect to any Acquisition Proposal, (ii) participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to, or take any other action knowingly to facilitate any inquiries or the making of any proposal that constitutes or that would reasonably be expected to lead to any Acquisition Proposal, (iii) grant any waiver or release under any standstill or similar agreement with respect to any class of the Company's equity securities securities, or (iv) enter into any agreement with respect to any Acquisition Proposal; provided, however, that if (A) the Company receives an unsolicited may, and may authorize and permit its Representatives to, furnish or cause to be furnished information and may participate in negotiations and discussions with respect to any Acquisition Proposal from a Third Party that Proposal, which the Company's Board of Directors or the Special Committee determines in good faith faith, after consulting with its outside counsel and its financial advisors, is or could reasonably be expected likely to lead to the delivery of a Superior Proposal, (B) the Company's Board of Directors may take the actions described in the last sentence of Section 6.2, (C) the Company's Board of Directors may recommend an Acquisition Proposal from that Third Party, to Company Stockholders and (D) the Company maymay terminate this Agreement pursuant to Section 10.3 in order to immediately thereafter enter into a definitive agreement with respect to such Acquisition Proposal, subject in each case, if the Company's Board of Directors determines, in good faith after consulting with its outside counsel and its financial advisors, that such action is necessary to compliance comply with the other provisions its fiduciary duties under applicable law; provided that such Acquisition Proposal was not solicited in violation of this Section 6.3, furnish information toand in the case of (B), and engage in discussions and negotiations with, such Third Party with respect to its (C) or (D) there exists an Acquisition Proposal ("Permitted Actions"). Notwithstanding the foregoingwhich constitutes a Superior Proposal; provided, further, that prior to furnishing non- public information to any such party, the Board of Directors Company shall not take any Permitted Actions unless have entered into a confidentiality agreement no less favorable to the Company provides than the Confidentiality Agreement between the Company and the Acquiror with reasonable advance notice thereofdated July 17, 2000.
(b) Except as permitted by this Section 6.3(b)The Company agrees that it will immediately cease and cause to be terminated any existing activities, neither the Board of Directors of the Company, the Special Committee nor discussions or negotiations with any committee thereof shall amend, withdraw, modify, change, condition or qualify in parties conducted heretofore with respect to any manner adverse to Acquiror, the Company Recommendation (it being understood and agreed that a communication by the Board of Directors of the Company or the Special Committee to the Company Stockholders pursuant to Rule 14d-9(f) of the Exchange Act, or any similar communication to the Company Stockholders in connection with the making or amendment of a tender offer or exchange offer, shall not be deemed to constitute a withdrawal, modification, amendment, condition or qualification of the Company Recommendation for all purposes of this Agreement, including this Section 6.3 and Section 10.1(e)). Notwithstanding the foregoing, in the event that the Board of Directors of the Company or the Special Committee takes the actions set forth in Section 6.3(e), the Board of Directors of the Company or the Special Committee may (i) withdraw or modify in any manner adverse to Acquiror, the Company Recommendation and (ii) approve or recommend, or propose to approve or recommend, any proposed Acquisition Proposal.
(c) Unless the Company's Board of Directors or the Special Committee has previously withdrawn, or is concurrently therewith withdrawing, the Company Recommendation in accordance with this Section 6.36.2, neither the Company's Board of Directors nor any committee thereof shall recommend any Acquisition Proposal to the Company Stockholders. Notwithstanding the foregoing, nothing contained in this Section 6.3(c6.3(b) or elsewhere in this Agreement shall prevent the Company's Board of Directors or the Special Committee from complying with Rule 14e-2 under the Exchange 1934 Act with respect to any Acquisition Proposal or making any disclosure required by or otherwise complying with applicable Lawlaw.
(d) The Company shall notify Acquiror promptly (but in no event later than the next Business Day) after receipt by the Company of any Acquisition Proposal or any request for nonpublic information relating to the Company or any of its Subsidiaries in connection with an Acquisition Proposal or for access to the properties, books or records of the Company or any of its Subsidiaries or any request for a waiver or release under any standstill or similar agreement, by any Person that informs the Board of Directors of the Company or such Subsidiary that it is considering making, or has made an Acquisition Proposal; provided, however, that prior to participating in any discussions or negotiations or furnishing any such information, the Company shall receive from such Person an executed confidentiality agreement on terms that are not materially less favorable to the Company than the Confidentiality Agreement. The notice shall indicate the terms and conditions of the proposal or request and the identity of the Person making it, and the Company will promptly notify Acquiror of any material modification of or material amendment to any Acquisition Proposal (and the terms of such modification or amendment); provided, however, that, without limiting what changes may be material, any change in the consideration to be paid with respect to the Acquisition Proposal shall be deemed to be a material modification or a material amendment. The Company shall keep Acquiror informed, on a reasonably current basis, of the status of any negotiations, discussions and documents with respect to such Acquisition Proposal or request.
(e) Holding, Acquiror or the Company may terminate this Agreement, if the Company's Board of Directors or the Special Committee, after consultation with its financial and legal advisors, shall have determined (i) to approve or recommend an Acquisition Proposal after concluding that the Acquisition Proposal constitutes a Superior Proposal and (ii) to enter into a binding agreement concerning the Acquisition Proposal; provided, however, that the Company may not exercise its right to terminate under this Section 6.3(e), unless (1) the Company shall have provided to Acquiror at least three (3) Business Days' prior written notice that its Board of Directors or the Special Committee has authorized the termination and intends to terminate this Agreement pursuant to this Section 6.3(e), specifying the material terms and conditions of the Acquisition Proposal, and (2) Acquiror does not make, within three (3) Business Days of delivery of the notice, an offer such that a majority of the disinterested members of the Company's Board of Directors or the Special Committee determines that the foregoing Acquisition Proposal no longer constitutes a Superior Proposal. In connection with the forgoing, the Company agrees that it will not enter into an agreement which binds the Company with respect to such an Acquisition Proposal unless (x) the Company simultaneously delivers to Acquiror the notice contemplated by the foregoing proviso, (y) such agreement is not binding on the Company until three (3) Business Days after delivery of the notice set forth in this Section 6.3(e) and (z) the Company has the right under such agreement to unilaterally terminate such agreement prior to the termination of this Agreement without any payment or other liability or obligation of any kind.
(f) The Company shall immediately cease, and shall cause any party acting on its behalf to cease, and cause to be terminated any existing discussions or negotiations with any Third Party conducted heretofore with respect to any of the foregoing and shall request any such parties in possession of confidential information about the Company or its Subsidiaries that was furnished by or on behalf of the Company or its Subsidiaries to return or destroy all such information in the possession of any such party or the agent or advisor of any such party.any
Appears in 1 contract
Acquisition Proposals; Board Recommendation. (a) The From the date hereof until the earlier of the Effective Time and the termination of this Agreement pursuant to and in accordance with Article 9, except as otherwise expressly set forth in this Agreement, neither the Parent nor the Company agrees that it nor any of their respective Subsidiaries shall not(and each shall cause their respective officers, nor shall it permit any Company Subsidiary todirectors, nor shall it authorize or knowingly permit any officeremployees, director, employeefinancial advisors, investment bankerbankers, attorneyattorneys, accountant, agent accountants or other advisor agents or representative of representatives (collectively, the Company or any Company Subsidiary"Representatives"), not to), directly or indirectly, to (i) solicit or initiate the submission of any Acquisition Proposalsolicit, (ii) participate in any discussions or negotiations regardingencourage, initiate, or furnish to any Person any information with respect to, or take any other action knowingly to otherwise facilitate any inquiries or the making of any proposal or offer with respect to or relating to an Acquisition Proposal, (ii) conduct any discussions, enter into any negotiations, agreements, understandings or transactions, or provide any information to any Person (other than to the other party hereto and its Representatives) with respect to or relating to an Acquisition Proposal or (iii) provide any non-public financial or other confidential or proprietary information regarding it or any of its Subsidiaries (other than to the other party hereto and its Representatives). Notwithstanding anything to the contrary contained in this Section 6.8 or any other provision of this Agreement, nothing herein shall prohibit the Parent or the Parent Board from (i) taking and disclosing to the Parent's stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 under the Exchange Act (provided, that constitutes such tender or exchange offer was not solicited, encouraged, discussed, or continued in contravention of this Agreement and provided, further, that discussions with respect thereto were not required to cease or be terminated pursuant to this Section 6.8), or (ii) making such disclosure to the Parent's stockholders where the Parent Board determines in good faith, after having consulted with outside legal counsel, that failure to make such disclosure would reasonably be expected violate its fiduciary duties to lead its stockholders under applicable Law, provided, in each case, that the Parent may not, except as permitted by Section 6.8(c) of this Agreement, withdraw or modify, or propose to withdraw or modify, its position with respect to the Merger or approve or recommend, or propose to approve or recommend any Acquisition Proposal, (iii) grant any waiver or release under any standstill or similar agreement with respect to any class of the Company's equity securities or (iv) enter into any agreement with respect to any Acquisition Proposal; provided, however, that if the Company receives an unsolicited Acquisition Proposal from a Third Party that the Company's Board of Directors or the Special Committee determines in good faith is or could reasonably be expected to lead to the delivery of a Superior Proposal from that Third Party, the Company may, subject to compliance with the other provisions of this Section 6.3, furnish information to, and engage in discussions and negotiations with, such Third Party with respect to its Acquisition Proposal ("Permitted Actions"). Notwithstanding the foregoing, the Board of Directors shall not take any Permitted Actions unless the Company provides Acquiror with reasonable advance notice thereof.
(b) Except as permitted by this Section 6.3(b), neither the Board of Directors of the Company, the Special Committee nor any committee thereof Each party shall amend, withdraw, modify, change, condition or qualify in any manner adverse to Acquiror, the Company Recommendation (it being understood and agreed that a communication by the Board of Directors of the Company or the Special Committee to the Company Stockholders pursuant to Rule 14d-9(f) of the Exchange Act, or any similar communication to the Company Stockholders in connection with the making or amendment of a tender offer or exchange offer, shall not be deemed to constitute a withdrawal, modification, amendment, condition or qualification of the Company Recommendation for all purposes of this Agreement, including this Section 6.3 and Section 10.1(e)). Notwithstanding the foregoing, in the event that the Board of Directors of the Company or the Special Committee takes the actions set forth in Section 6.3(e), the Board of Directors of the Company or the Special Committee may (i) withdraw or modify in any manner adverse to Acquiror, the Company Recommendation and (ii) approve or recommend, or propose to approve or recommend, any Acquisition Proposal.
(c) Unless the Company's Board of Directors or the Special Committee has previously withdrawn, or is concurrently therewith withdrawing, the Company Recommendation in accordance with this Section 6.3, neither the Company's Board of Directors nor any committee thereof shall recommend any Acquisition Proposal to the Company Stockholders. Notwithstanding the foregoing, nothing contained in this Section 6.3(c) or elsewhere in this Agreement shall prevent the Company's Board of Directors or the Special Committee from complying with Rule 14e-2 under the Exchange Act with respect to any Acquisition Proposal or making any disclosure required by or otherwise complying with applicable Law.
(d) The Company shall notify Acquiror promptly (but in no event later than the next Business Day) after receipt by the Company of any Acquisition Proposal or any request for information relating to the Company or any of its Subsidiaries in connection with an Acquisition Proposal or for access to the properties, books or records of the Company or any of its Subsidiaries or any request for a waiver or release under any standstill or similar agreement, by any Person that informs the Board of Directors of the Company or such Subsidiary that it is considering making, or has made an Acquisition Proposal; provided, however, that prior to participating in any discussions or negotiations or furnishing any such information, the Company shall receive from such Person an executed confidentiality agreement on terms that are not materially less favorable to the Company than the Confidentiality Agreement. The notice shall indicate the terms and conditions of the proposal or request and the identity of the Person making it, and the Company will promptly notify Acquiror of any material modification of or material amendment to any Acquisition Proposal (and the terms of such modification or amendment); provided, however, that, without limiting what changes may be material, any change in the consideration to be paid with respect to the Acquisition Proposal shall be deemed to be a material modification or a material amendment. The Company shall keep Acquiror informed, on a reasonably current basis, of the status of any negotiations, discussions and documents with respect to such Acquisition Proposal or request.
(e) Holding, Acquiror or the Company may terminate this Agreement, if the Company's Board of Directors or the Special Committee, after consultation with its financial and legal advisors, shall have determined (i) to approve or recommend an Acquisition Proposal after concluding that the Acquisition Proposal constitutes a Superior Proposal and (ii) to enter into a binding agreement concerning the Acquisition Proposal; provided, however, that the Company may not exercise its right to terminate under this Section 6.3(e), unless (1) the Company shall have provided to Acquiror at least three (3) Business Days' prior written notice that its Board of Directors or the Special Committee has authorized the termination and intends to terminate this Agreement pursuant to this Section 6.3(e), specifying the material terms and conditions of the Acquisition Proposal, and (2) Acquiror does not make, within three (3) Business Days of delivery of the notice, an offer such that a majority of the disinterested members of the Company's Board of Directors or the Special Committee determines that the foregoing Acquisition Proposal no longer constitutes a Superior Proposal. In connection with the forgoing, the Company agrees that it will not enter into an agreement which binds the Company with respect to such an Acquisition Proposal unless (x) the Company simultaneously delivers to Acquiror the notice contemplated by the foregoing proviso, (y) such agreement is not binding on the Company until three (3) Business Days after delivery of the notice set forth in this Section 6.3(e) and (z) the Company has the right under such agreement to unilaterally terminate such agreement prior to the termination of this Agreement without any payment or other liability or obligation of any kind.
(f) The Company shall immediately cease, and shall cause any party acting on its behalf to cease, cease and cause to be terminated any existing discussions activities, discussion or negotiations with any Third Party parties conducted heretofore with respect to any an Acquisition Proposal and (ii) take the necessary steps to promptly inform its Representatives of the foregoing obligations undertaken in this Section 6.8. Notwithstanding the foregoing, prior to the approval by the stockholders of the Parent or the members of the LLC Member of the Merger, each party may furnish information concerning its business, properties or assets to any Person or group of Persons pursuant to appropriate confidentiality agreements (which shall be no more permissive than the Confidentiality Agreement), and shall request any may negotiate and participate in discussions and negotiations with such parties entity or group concerning an Acquisition Proposal if:
(x) such Person or group of Persons has, on an unsolicited basis, submitted a bona fide Acquisition Proposal in possession of confidential information about writing to the Parent Board or the Company or Board, as applicable, which such Board determines in good faith, consistent with advice of its Subsidiaries that was furnished by or financial advisors, (i) is capable of being and likely to be funded on behalf of the Company or disclosed terms and (ii) is likely to be consummated in accordance with its Subsidiaries to return or destroy all such information in the possession of any such party or the agent or advisor of any such party.terms; and
Appears in 1 contract
Acquisition Proposals; Board Recommendation. (a) The Company agrees that it shall not, nor shall it permit any Company Subsidiary to, nor shall it authorize or knowingly permit any officer, director, employee, investment banker, attorney, accountant, agent or other advisor or representative of the Company or any Company Subsidiary, directly or indirectly, to (i) solicit take any action to solicit, initiate or initiate facilitate or encourage the submission of any Acquisition Proposal, (ii) participate engage in any discussions or negotiations regarding, or furnish to any Person any non-public information with respect to, or take any other action knowingly to facilitate any inquiries or the making of any proposal that constitutes constitutes, or that would may be reasonably be expected to lead to to, any Acquisition Proposal, (iii) grant any waiver or release under any standstill or similar agreement with respect to any class of the Company's equity securities or (iv) enter into any agreement with respect to any Acquisition Proposal, other than in the manner contemplated by Section 6.3(d); provided, however, that if the Company receives an unsolicited Acquisition Proposal from a Third Party that the Company's Board of Directors or the Special Committee determines in good faith is or could reasonably be expected to lead to the delivery of a Superior Proposal from that Third Party, the Company may, subject to compliance with the other provisions of this Section 6.3, furnish information to, and engage in discussions and negotiations with, such Third Party with respect to its Acquisition Proposal ("Permitted Actions"). Notwithstanding the foregoing, the Board of Directors shall not may take any Permitted Actions unless actions described in the Company provides Acquiror with reasonable advance notice thereof.
foregoing clauses (b) Except as permitted by this Section 6.3(bi), neither the Board (ii), (iii), or (iv) in respect of Directors of the Companyany Person who makes a bona fide Acquisition Proposal, the Special Committee nor any committee thereof shall amend, withdraw, modify, change, condition or qualify in any manner adverse to Acquiror, the Company Recommendation but only if (it being understood and agreed that a communication by x) the Board of Directors of the Company or determines in good faith (after receipt of advice of its outside legal counsel) that it is required to take such actions in order to comply with its fiduciary duties under applicable law and (y) prior to furnishing any non-public information to such Person, such Person shall have entered into a confidentiality agreement with the Special Committee Company on terms no less favorable to the Company Stockholders pursuant than the Confidentiality Agreement between the Company and Parent dated as of January 5, 1999. The Company shall cease and cause to Rule 14d-9(f) of the Exchange Actbe terminated immediately all existing discussions or negotiations, if any, with any Persons conducted heretofore with respect to, or any similar communication that could be reasonably expected to the Company Stockholders in connection with the making or amendment of a tender offer or exchange offer, shall not be deemed to constitute a withdrawal, modification, amendment, condition or qualification of the Company Recommendation for all purposes of this Agreement, including this Section 6.3 and Section 10.1(e)). Notwithstanding the foregoing, in the event that the Board of Directors of the Company or the Special Committee takes the actions set forth in Section 6.3(e), the Board of Directors of the Company or the Special Committee may (i) withdraw or modify in any manner adverse to Acquiror, the Company Recommendation and (ii) approve or recommend, or propose to approve or recommendlead to, any Acquisition Proposal.
(cb) Unless the Company's Board of Directors or the Special Committee has previously withdrawn, or is concurrently therewith withdrawing, the Company Recommendation in accordance with this Section 6.36.3(d), neither the Company's Board of Directors nor any committee thereof shall recommend any Acquisition Proposal to the Company Stockholdersstockholders. Notwithstanding the foregoing, nothing contained in this Section 6.3(c6.3(b) or elsewhere in this Agreement shall prevent the Company's Board of Directors or the Special Committee from complying with Rule 14e-2 under the Exchange 1934 Act with respect to any Acquisition Proposal or making any disclosure required by or otherwise complying with applicable Lawlaw.
(dc) The Company shall notify Acquiror promptly Promptly (but in no event later than the next Business Day24 hours) after receipt by the Company or any Company Subsidiary (or any of their respective directors, officers, agents or advisors) of any Acquisition Proposal Proposal, any contacts concerning, or any request for non-public information relating to the Company or any of its Subsidiaries in connection with an Acquisition Proposal or for access to the properties, books or records of the Company or any of its Subsidiaries Company Subsidiary or any request for a waiver or release under any standstill or similar agreement, by any Person that informs the Board of Directors of the Company has made an Acquisition Proposal or such Subsidiary indicates that it is considering making, or has made making an Acquisition Proposal; provided, however, that prior to participating in any discussions or negotiations or furnishing any such information, the Company shall receive from notify Parent that a Person may be considering making an Acquisition Proposal, which notice shall state the identity of such Person an executed confidentiality agreement on terms that are not materially less favorable to and the Company than the Confidentiality Agreement. The notice shall indicate the material terms and conditions of the proposal or request and the identity of the Person making it, and the Company will promptly notify Acquiror of any material modification of or material amendment to any Acquisition Proposal (and the terms of such modification or amendment); provided, however, that, without limiting what changes may be material, any change in the consideration to be paid with respect to the Acquisition Proposal shall be deemed to be a material modification or a material amendmentproposal. The Company shall keep Acquiror informed, on a Parent reasonably current basis, of the status apprised of any negotiations, discussions and documents material developments with respect to such Acquisition Proposal or requestproposal.
(ed) HoldingPursuant to the terms of Section 10.1, Acquiror or the Company may terminate this Agreement, Agreement if (x) the Company's Board of Directors or the Special Committee, after consultation with its financial and legal advisors, shall have determined (i) authorized the Company, subject to approve or recommend an Acquisition Proposal after concluding that the Acquisition Proposal constitutes a Superior Proposal terms and (ii) conditions of this Agreement, to enter into a binding agreement concerning a transaction that constitutes a Superior Proposal, (y) the Acquisition Proposal; Company notifies Parent that it intends to enter into such agreement, specifying the material terms and conditions of such agreement, and (z) the Company pays Parent the fee contemplated by Section 10.3(b) provided, however, that the Company may not exercise its right to terminate under this Section 6.3(e), unless (1) the Company shall have provided to Acquiror at least three (3) Business Days' prior written notice that its Board of Directors or the Special Committee has authorized the termination and intends to so terminate this Agreement pursuant to this Section 6.3(e), specifying the material terms and conditions of the Acquisition Proposal, and (2) Acquiror does not makeif, within three (3) Business Days of delivery of the notice, receiving such notice Parent makes an offer such that a majority of the disinterested members of the Company's Board of Directors or of the Special Committee Company determines that the foregoing Acquisition such Superior Proposal is no longer constitutes a Superior Proposal. In connection with the forgoing, Proposal (it being understood that the Company agrees that it will shall not enter into an such binding agreement which binds the Company with respect to during such an Acquisition Proposal unless (x) the Company simultaneously delivers to Acquiror the notice contemplated by the foregoing proviso, (y) such agreement is not binding on the Company until three (3) Business Days after delivery of the notice set forth in this Section 6.3(e) and (z) the Company has the right under such agreement to unilaterally terminate such agreement prior to the termination of this Agreement without any payment or other liability or obligation of any kindDay period).
(f) The Company shall immediately cease, and shall cause any party acting on its behalf to cease, and cause to be terminated any existing discussions or negotiations with any Third Party conducted heretofore with respect to any of the foregoing and shall request any such parties in possession of confidential information about the Company or its Subsidiaries that was furnished by or on behalf of the Company or its Subsidiaries to return or destroy all such information in the possession of any such party or the agent or advisor of any such party.
Appears in 1 contract
Acquisition Proposals; Board Recommendation. (a) The Company agrees that it shall not, nor and the Company shall it permit any Company Subsidiary cause its Subsidiaries and its and their respective officers, directors, employees, attorneys, accountants, advisors, representatives and agents ("Representatives") not to, nor shall it authorize or knowingly permit any officer, director, employee, investment banker, attorney, accountant, agent or other advisor or representative of the Company or any Company Subsidiary, directly or indirectly, to (i) solicit or initiate the submission of or knowingly encourage any proposal that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (ii) participate or engage in any discussions or negotiations regardingwith, or furnish disclose or provide any non-public information relating to any Person any information with respect the Company or its Subsidiaries to, or take any other action knowingly to facilitate any inquiries or the making of any proposal that constitutes or that would reasonably be expected to lead afford access to any of the properties, books or records of the Company or its Subsidiaries to, any Person with respect to an Acquisition Proposal, (iii) enter into any agreement or agreement in principle with any Person with respect to an Acquisition Proposal, or (iv) grant any waiver or release under any standstill or similar agreement with respect to by any class of the Company's equity securities or (iv) enter into any agreement with respect to any Person who has made an Acquisition Proposal; , provided, however, that if the parties hereby expressly acknowledge and agree that, prior to obtaining the Company receives an unsolicited Acquisition Proposal from Shareholder Approval, the Company, its Subsidiaries and their respective Representatives may (without any or all such actions being deemed, individually or in the aggregate, a Third Party breach of this Agreement or any of the Ancillary Agreements) take any of the actions described in clauses (i) and (ii) of this subsection (a) if, in the case of clause (ii), prior to, or substantially concurrently with disclosing or providing any such non-public information, (A) such Person shall have entered into a confidentiality agreement with the Company on terms that are no less favorable to the Company than the Confidentiality Agreement and (B) the Company shall disclose or provide all such information to Acquiror; provided, further, that the Company, its Subsidiaries and their respective Representatives may only disclose or provide any non-public information as described in clause (ii) of this subsection (a) only in response to any Person that has made a bona fide written Acquisition Proposal.
(b) The Company shall promptly advise Parent and Acquiror, telephonically and in writing, of the Company's receipt of any Acquisition Proposal. The Company shall promptly provide Parent and Acquiror, in writing, with the terms and conditions of any such Acquisition Proposal, and the identity of the Person making the same. Immediately upon determination by the Board of Directors of the Company that an Acquisition Proposal constitutes a Superior Proposal, the Company shall deliver to Parent and Acquiror a written notice (a "Notice of Superior Proposal") advising them that the Board of Directors of the Company has so determined, specifying the terms and conditions of such Superior Proposal and the identity of the Person making such Superior Proposal, and providing Parent and Acquiror with a copy of the Superior Proposal.
(c) The Board of Directors of the Company has adopted a resolution recommending the approval of this Agreement and the Merger by the Company's Shareholders (the "Company Recommendation"), and, except as provided in the next sentence, the Board of Directors of the Company shall at all times recommend approval of this Agreement and the Merger by the Company Shareholders. The Board of Directors or the Special Committee determines of the Company shall be permitted to (i) withdraw or modify in good faith is a manner adverse to Parent and Acquiror (or could reasonably be expected not to lead continue to make) the delivery of Company Recommendation, (ii) approve or recommend a Superior Proposal from that Third PartyProposal, and/or (iii) cause the Company mayto enter into an agreement regarding such Superior Proposal if, subject to compliance with the other provisions but only if, (a) a majority of this Section 6.3, furnish information to, and engage in discussions and negotiations with, such Third Party with respect to its Acquisition Proposal ("Permitted Actions"). Notwithstanding the foregoing, the Board of Directors shall not take any Permitted Actions unless the Company provides Acquiror with reasonable advance notice thereof.
(b) Except as permitted by this Section 6.3(b), neither the Board of Directors of the Company, Company or the Special Committee nor any committee thereof shall amendhas reasonably determined in good faith, withdrawfollowing consultation with outside counsel, modify, change, condition or qualify that taking such action is required in any manner adverse to Acquiror, order for the Company Recommendation (it being understood and agreed that a communication by members of the Board of Directors of the Company or the Special Committee to the Company Stockholders pursuant to Rule 14d-9(f) of the Exchange Act, or any similar communication comply with their fiduciary duties to the Company Stockholders in connection with the making or amendment of a tender offer or exchange offerShareholders under applicable law, shall not be deemed to constitute a withdrawal, modification, amendment, condition or qualification of the Company Recommendation for all purposes of this Agreement, including this Section 6.3 and Section 10.1(e)). Notwithstanding the foregoing, in the event that the Board of Directors of the Company or the Special Committee takes the actions set forth in Section 6.3(e), the Board of Directors of the Company or the Special Committee may (i) withdraw or modify in any manner adverse to Acquiror, the Company Recommendation and (ii) approve or recommend, or propose to approve or recommend, any Acquisition Proposal.
(c) Unless the Company's Board of Directors or the Special Committee has previously withdrawn, or is concurrently therewith withdrawing, the Company Recommendation in accordance with this Section 6.3, neither the Company's Board of Directors nor any committee thereof shall recommend any Acquisition Proposal to the Company Stockholders. Notwithstanding the foregoing, nothing contained in this Section 6.3(c) or elsewhere in this Agreement shall prevent the Company's Board of Directors or the Special Committee from complying with Rule 14e-2 under the Exchange Act with respect to any Acquisition Proposal or making any disclosure required by or otherwise complying with applicable Law.
(d) The Company shall notify Acquiror promptly (but in no event later than the next Business Day) after receipt by the Company of any Acquisition Proposal or any request for information relating to the Company or any of its Subsidiaries in connection with an Acquisition Proposal or for access to the properties, books or records of the Company or any of its Subsidiaries or any request for a waiver or release under any standstill or similar agreement, by any Person that informs the Board of Directors of the Company or such Subsidiary that it is considering making, or has made an Acquisition Proposal; provided, however, that prior to participating in any discussions or negotiations or furnishing any such information, the Company shall receive from such Person an executed confidentiality agreement on terms that are not materially less favorable to the Company than the Confidentiality Agreement. The notice shall indicate the terms and conditions of the proposal or request and the identity of the Person making it, and the Company will promptly notify Acquiror of any material modification of or material amendment to any Acquisition Proposal (and the terms of such modification or amendment); provided, however, that, without limiting what changes may be material, any change in the consideration to be paid with respect to the Acquisition Proposal shall be deemed to be a material modification or a material amendment. The Company shall keep Acquiror informed, on a reasonably current basis, of the status of any negotiations, discussions and documents with respect to such Acquisition Proposal or request.
(e) Holding, Acquiror or the Company may terminate this Agreement, if the Company's Board of Directors or the Special Committee, after consultation with its financial and legal advisors, shall have determined (i) to approve or recommend an Acquisition Proposal after concluding that the Acquisition Proposal constitutes a Superior Proposal and (ii) to enter into a binding agreement concerning the Acquisition Proposal; provided, however, that the Company may not exercise its right to terminate under this Section 6.3(e), unless (1b) the Company shall have provided to has given Parent and Acquiror at least three (3) Business Days' prior written notice that of its intention to take such action, (c) the Company has complied in all material respects with its obligations under this Section 6.2, and (d) the Company shall have terminated this Agreement in accordance with the provisions of Section 10.1(f) and shall have paid Parent the Parent Expense Reimbursement Amount in accordance with Section 10.2(b). For the avoidance of doubt, nothing in this Section 6.2 shall prohibit the Company or its Board of Directors or the Special Committee has authorized from taking and disclosing to the termination shareholders of the Company a position, or any information, with respect to an Acquisition Proposal by a Third Party to the extent required under applicable law (including Rule 14d-9 and intends to terminate Rule 14e-2 promulgated under the Exchange Act) or stock exchange regulation; provided that unless and until this Agreement pursuant to is terminated in accordance with Section 10.1 hereof, nothing in this Section 6.3(e), specifying sentence shall affect the material terms and conditions obligations of the Acquisition Proposal, Company and (2) Acquiror does not make, within three (3) Business Days of delivery of the notice, an offer such that a majority of the disinterested members of the Company's its Board of Directors or the Special Committee determines that the foregoing Acquisition Proposal no longer constitutes a Superior Proposal. In connection with the forgoing, the Company agrees that it will not enter into an agreement which binds the Company with respect to such an Acquisition Proposal unless (x) the Company simultaneously delivers to Acquiror the notice contemplated by the foregoing proviso, (y) such agreement is not binding on the Company until three (3) Business Days after delivery of the notice set forth in this Section 6.3(e) and (z) the Company has the right under such agreement to unilaterally terminate such agreement prior to the termination any other provision of this Agreement without any payment or other liability or obligation of any kindAgreement, including Section 8.2(b).
(f) The Company shall immediately cease, and shall cause any party acting on its behalf to cease, and cause to be terminated any existing discussions or negotiations with any Third Party conducted heretofore with respect to any of the foregoing and shall request any such parties in possession of confidential information about the Company or its Subsidiaries that was furnished by or on behalf of the Company or its Subsidiaries to return or destroy all such information in the possession of any such party or the agent or advisor of any such party.
Appears in 1 contract
Acquisition Proposals; Board Recommendation. (a) The Company agrees will, and will direct and use reasonable efforts to cause its directors, officers, employees, representatives and agents to, immediately cease any discussions or negotiations with any parties that it shall may be ongoing with respect to an Acquisition Proposal. The Company will not, nor shall will it permit any Company Subsidiary of its Subsidiaries to, nor shall will it authorize or knowingly permit any officerof its directors, directorofficers, employee, or employees or any investment banker, financial advisor, attorney, accountant, agent accountant or other advisor or representative of the Company retained by it or any Company Subsidiaryof its Subsidiaries to, directly or indirectly, to (i) solicit solicit, initiate or initiate knowingly encourage (including by way of furnishing confidential information), or take any other action knowingly to facilitate, any inquiries or the submission making of any proposal which constitutes, or may reasonably be expected to lead to, any Acquisition Proposal, Proposal or (ii) participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to, or take any other action knowingly to facilitate any inquiries or the making of any proposal that constitutes or that would reasonably be expected to lead to any Acquisition Proposal, (iii) grant any waiver or release under any standstill or similar agreement with respect to any class of the Company's equity securities or (iv) enter into any agreement with respect to regarding any Acquisition Proposal; provided, however, that if if, the Board of Directors of the Company receives an unsolicited Acquisition Proposal from a Third Party determines in good faith, after consultation with outside counsel, that it is necessary to do so in order to comply with its fiduciary duties to the Company's Board of Directors or the Special Committee determines in good faith is or could reasonably be expected to lead to the delivery of a Superior Proposal from that Third Partystockholders under applicable law, the Company may, in response to an Acquisition Proposal that was not solicited subsequent to the date hereof, and subject to compliance with the other provisions of this Section 6.37.3(c), (x) furnish information to, to any person pursuant to a customary confidentiality agreement (as determined by the Company after consultation with its outside counsel) and engage (y) participate in discussions and or negotiations with, regarding such Third Party with respect to its Acquisition Proposal ("Permitted Actions"). Notwithstanding the foregoing, the Board of Directors shall not take any Permitted Actions unless the Company provides Acquiror with reasonable advance notice thereofProposal.
(b) Except as permitted by set forth in this Section 6.3(b)7.3, neither the Board of Directors of the Company, the Special Committee Company nor any committee thereof shall amend, withdraw, will (i) withdraw or modify, changeor propose publicly to withdraw or modify, condition or qualify in any a manner adverse to Acquiror, the Company Recommendation (it being understood and agreed that a communication approval or recommendation by the such Board of Directors or such committee of the Company Merger or the Special Committee to the Company Stockholders pursuant to Rule 14d-9(f) of the Exchange Act, or any similar communication to the Company Stockholders in connection with the making or amendment of a tender offer or exchange offer, shall not be deemed to constitute a withdrawal, modification, amendment, condition or qualification of the Company Recommendation for all purposes of this Agreement, including this Section 6.3 and Section 10.1(e))(ii) approve or recommend, or propose publicly to approve or recommend, any Acquisition Proposal or (iii) cause the Company to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement (each, an "Acquisition Agreement") related to any Acquisition Proposal. Notwithstanding the foregoing, in the event that the Board of Directors of the Company or determines in good faith, after consultation with outside counsel, that it is necessary to do so in order to comply with its fiduciary duties to the Special Committee takes the actions set forth in Section 6.3(e)Company stockholders under applicable law, the Board of Directors of the Company or the Special Committee may (ix) withdraw or modify in any manner adverse to Acquiror, its approval or recommendation of the Company Recommendation Merger and this Agreement or (iiy) approve or recommendrecommend a Superior Proposal or (z) terminate this Agreement (and concurrently with or after such termination, or propose if it so chooses, cause the Company to approve or recommend, enter into any Acquisition Proposal.
(c) Unless the Company's Board of Directors or the Special Committee has previously withdrawn, or is concurrently therewith withdrawing, the Company Recommendation in accordance with this Section 6.3, neither the Company's Board of Directors nor any committee thereof shall recommend any Acquisition Proposal to the Company Stockholders. Notwithstanding the foregoing, nothing contained in this Section 6.3(c) or elsewhere in this Agreement shall prevent the Company's Board of Directors or the Special Committee from complying with Rule 14e-2 under the Exchange Act with respect to any Acquisition Proposal or making any disclosure required by or otherwise complying with applicable Law.
(d) The Company shall notify Acquiror promptly (Superior Proposal), but in no event later than the next Business Dayeach case only at a time that is following Acquiror's receipt of written notice (a "Notice of Superior Proposal") after receipt by the Company of any Acquisition Proposal or any request for information relating to the Company or any of its Subsidiaries in connection with an Acquisition Proposal or for access to the properties, books or records of the Company or any of its Subsidiaries or any request for a waiver or release under any standstill or similar agreement, by any Person advising Acquiror that informs the Board of Directors of the Company or such Subsidiary that it is considering making, or has made an Acquisition Proposal; provided, however, that prior to participating in any discussions or negotiations or furnishing any such information, the Company shall receive from such Person an executed confidentiality agreement on terms that are not materially less favorable to the Company than the Confidentiality Agreement. The notice shall indicate the terms and conditions of the proposal or request and the identity of the Person making it, and the Company will promptly notify Acquiror of any material modification of or material amendment to any Acquisition Proposal (and the terms of such modification or amendment); provided, however, that, without limiting what changes may be material, any change in the consideration to be paid with respect to the Acquisition Proposal shall be deemed to be a material modification or a material amendment. The Company shall keep Acquiror informed, on a reasonably current basis, of the status of any negotiations, discussions and documents with respect to such Acquisition Proposal or request.
(e) Holding, Acquiror or the Company may terminate this Agreement, if the Company's Board of Directors or the Special Committee, after consultation with its financial and legal advisors, shall have determined (i) to approve or recommend an Acquisition Proposal after concluding that the Acquisition Proposal constitutes received a Superior Proposal and (ii) to enter into a binding agreement concerning the Acquisition Proposal; provided, however, that the Company may not exercise its right to terminate under this Section 6.3(e), unless (1) the Company shall have provided to Acquiror at least three (3) Business Days' prior written notice that its Board of Directors or the Special Committee has authorized the termination and intends to terminate this Agreement pursuant to this Section 6.3(e), specifying the material terms and conditions of such Superior Proposal and identifying the person making such Superior Proposal.
(c) In addition to the obligations of the Company set forth in paragraphs (a) and (b) of this Section 7.3, the Company will promptly advise Acquiror orally and in writing of any request for confidential information in connection with an Acquisition Proposal or of any Acquisition Proposal, and (2) . The Company will keep Acquiror does not make, within three (3) Business Days of delivery reasonably informed of the noticestatus of and material information concerning (including amendments or proposed amendments) any Acquisition Proposal.
(d) Nothing contained in this Section 7.3 will prohibit the Company from making any disclosure to the Company stockholders if, an offer such that a majority in the good faith judgment of the disinterested members Board of Directors of the Company's , after consultation with outside counsel, failure so to disclose would be inconsistent with applicable law; provided, however, neither the Company nor its Board of Directors nor any committee thereof shall, except as permitted by Section 7.3(b), withdraw or the Special Committee determines that the foregoing Acquisition Proposal no longer constitutes a Superior Proposal. In connection with the forgoingmodify, the Company agrees that it will not enter into an agreement which binds the Company or propose publicly to withdraw or modify, its position with respect to such this Agreement or the Merger or approve or recommend, or propose publicly to approve or recommend, an Acquisition Proposal unless (x) the Company simultaneously delivers to Acquiror the notice contemplated by the foregoing proviso, (y) such agreement is not binding on the Company until three (3) Business Days after delivery of the notice set forth in this Section 6.3(e) and (z) the Company has the right under such agreement to unilaterally terminate such agreement prior to the termination of this Agreement without any payment or other liability or obligation of any kindProposal.
(f) The Company shall immediately cease, and shall cause any party acting on its behalf to cease, and cause to be terminated any existing discussions or negotiations with any Third Party conducted heretofore with respect to any of the foregoing and shall request any such parties in possession of confidential information about the Company or its Subsidiaries that was furnished by or on behalf of the Company or its Subsidiaries to return or destroy all such information in the possession of any such party or the agent or advisor of any such party.
Appears in 1 contract
Acquisition Proposals; Board Recommendation. (a) The Company agrees Sellers shall, and shall cause their respective Subsidiaries to, and shall direct and use commercially reasonable efforts to cause their respective directors, officers, employees, advisors, agents and other representatives (collectively, the “Representatives”) to, immediately cease any discussions or negotiations with any parties that it may be ongoing with respect to an Acquisition Proposal or any other proposal or offer to acquire any or all of the Purchased Assets, other than the sale of inventory or obsolete equipment in the ordinary course of business. From the date hereof until the Final Closing Date, except as provided in this Section 7.9 and subject to compliance herewith, Sellers shall not, nor and shall it permit any Company Subsidiary cause their respective Subsidiaries not to, nor and shall it authorize or knowingly permit any officer, director, employee, investment banker, attorney, accountant, agent or other advisor or representative of the Company or any Company Subsidiarydirect and use commercially reasonable efforts to cause their respective Representatives not to, directly or indirectly, to indirectly (i) solicit solicit, initiate, encourage or initiate the submission of take any other action to facilitate any proposal, inquiry or request that constitutes, or may reasonably be expected to lead to, an Acquisition Proposal or an Alternative Proposal, (ii) participate or engage in any discussions or negotiations regardingwith, or furnish disclose or provide any non-public information relating to any Person any information with respect FMRX to, or take any other action knowingly to facilitate any inquiries or the making of any proposal that constitutes or that would reasonably be expected to lead afford access to any of the properties, books or records of FMRX to, any Person in connection with an Acquisition Proposal or an Alternative Proposal, (iii) grant approve, endorse or recommend any waiver Acquisition Proposal or release under any standstill or similar agreement with respect to any class of the Company's equity securities or Alternative Proposal, (iv) enter into any letter of intent, agreement or agreement in principle with respect any Person that has made an Acquisition Proposal or an Alternative Proposal or (v) waive, amend, modify or grant any release under any employee non-solicitation, standstill or similar agreement or confidentiality agreement to which FMRX or any Acquisition Proposalof its Subsidiaries is a party; provided, however, that if prior to obtaining the Company receives FMRX Stockholder Approval, Sellers, their respective Subsidiaries and respective Representatives may take any of the actions described in clause (ii) of this Section 7.9(a) in respect of a Person that makes an unsolicited Acquisition Proposal from subsequent to the date hereof if, but only if, (x) such Person has entered into a Third Party confidentiality agreement with FMRX on terms that are substantially similar to the Company's terms of the Confidentiality Agreement, dated October 13, 2006, between FMRX and Buyer (the “Confidentiality Agreement”), (y) a majority of the Board of Directors or the Special Committee determines of FMRX has determined in good faith faith, following consultation with outside counsel including counsel expert in Nevada law, that (A) such Acquisition Proposal constitutes, or is or could reasonably be expected likely to lead to the delivery of result in, a Superior Proposal from that Third Partyand (B) the failure of the Board of Directors of FMRX to do so would be reasonably likely to result in a breach of the directors’ fiduciary obligations to FMRX’s stockholders under applicable Requirements of Law, and (z) the Company mayAcquisition Proposal was received and developed without any intentional breach, subject to compliance with or any material violation, of the other provisions of this Section 6.3, furnish information to, and engage in discussions and negotiations with, such Third Party with respect to its Acquisition Proposal ("Permitted Actions"7.9(a). Notwithstanding the foregoing, the Board of Directors shall not take any Permitted Actions unless the Company provides Acquiror with reasonable advance notice thereof.
(b) FMRX shall advise Buyer, telephonically and in writing, of any Sellers’ receipt of any Acquisition Proposal, Alternative Proposal or any request for Confidential Information in connection with a possible Acquisition Proposal or Alternative Proposal, and the identity of the Person making any such proposal or request, in any case within two (2) business days of any Sellers’ receipt thereof. FMRX shall include in such written notice the material terms and conditions of any such Acquisition Proposal. FMRX will keep Buyer reasonably and promptly informed of the status of, and material information concerning (including amendments, modifications or proposed amendments or modifications), any Acquisition Proposal. If the Board of Directors of FMRX determines that an Acquisition Proposal constitutes a Superior Proposal, FMRX shall deliver to Buyer a written notice advising Buyer that the Board of Directors of FMRX has so determined, specifying in detail the terms and conditions of such Superior Proposal.
(c) The Board of Directors of FMRX has adopted a resolution recommending the adoption and approval of this Agreement and the transactions contemplated hereby by the stockholders of FMRX (the “FMRX Recommendation”). Except as permitted by set forth in this Section 6.3(b7.9(c), neither the Board of Directors of the Company, the Special Committee FMRX nor any committee thereof shall may (i) amend, withdraw, modify, change, qualify or condition, or propose publicly to amend, withdraw, modify, change, qualify or condition or qualify in any a manner adverse to AcquirorBuyer, the Company FMRX Recommendation (it being understood and agreed that a communication by the Board “Change of Directors of the Company or the Special Committee to the Company Stockholders pursuant to Rule 14d-9(f) of the Exchange Act, or any similar communication to the Company Stockholders in connection with the making or amendment of a tender offer or exchange offer, shall not be deemed to constitute a withdrawal, modification, amendment, condition or qualification of the Company Recommendation for all purposes of this Agreement, including this Section 6.3 and Section 10.1(e)). Notwithstanding the foregoing, in the event that the Board of Directors of the Company or the Special Committee takes the actions set forth in Section 6.3(eRecommendation”), the Board of Directors of the Company or the Special Committee may (i) withdraw or modify in any manner adverse to Acquiror, the Company Recommendation and (ii) approve or recommend, or propose publicly to approve or recommend, any Acquisition Proposal.
Proposal or Alternative Proposal or (ciii) Unless the Company's Board of Directors cause or the Special Committee has previously withdrawn, or is concurrently therewith withdrawing, the Company Recommendation in accordance with this Section 6.3, neither the Company's Board of Directors nor any committee thereof shall recommend permit FMRX to accept any Acquisition Proposal or Alternative Proposal or enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement (each, an “Alternative Agreement”) related to the Company Stockholdersany Acquisition Proposal or Alternative Proposal. Notwithstanding the foregoing, nothing contained in this Section 6.3(c) or elsewhere in this Agreement shall prevent the Company's Board of Directors or event that, prior to obtaining the Special Committee from complying with Rule 14e-2 under the Exchange Act with respect to any Acquisition Proposal or making any disclosure required by or otherwise complying with applicable Law.
(d) The Company shall notify Acquiror promptly (but in no event later than the next Business Day) after receipt by the Company of any Acquisition Proposal or any request for information relating to the Company or any of its Subsidiaries in connection with an Acquisition Proposal or for access to the propertiesFMRX Stockholder Approval, books or records of the Company or any of its Subsidiaries or any request for a waiver or release under any standstill or similar agreement, by any Person that informs the Board of Directors of the Company or such Subsidiary that it is considering making, or has made an Acquisition Proposal; provided, however, that prior to participating FMRX determines in any discussions or negotiations or furnishing any such information, the Company shall receive from such Person an executed confidentiality agreement on terms that are not materially less favorable to the Company than the Confidentiality Agreement. The notice shall indicate the terms and conditions of the proposal or request and the identity of the Person making it, and the Company will promptly notify Acquiror of any material modification of or material amendment to any Acquisition Proposal (and the terms of such modification or amendment); provided, however, that, without limiting what changes may be material, any change in the consideration to be paid with respect to the Acquisition Proposal shall be deemed to be a material modification or a material amendment. The Company shall keep Acquiror informed, on a reasonably current basis, of the status of any negotiations, discussions and documents with respect to such Acquisition Proposal or request.
(e) Holding, Acquiror or the Company may terminate this Agreement, if the Company's Board of Directors or the Special Committeegood faith, after consultation with its financial and FMRX’s outside legal advisorscounsel, shall have determined that the failure of the Board of Directors of FMRX to do so would be reasonably likely to result in a breach of the directors’ exercise of their fiduciary obligations to FMRX’s stockholders under applicable Requirements of Law, the Board of Directors of FMRX may (ix) to make a Change of Recommendation, (y) approve or recommend an Acquisition Proposal after concluding that the Acquisition Proposal constitutes a Superior Proposal and or (iiz) terminate this Agreement in order to accept a Superior Proposal or enter into an Alternative Agreement with respect to a binding agreement concerning the Acquisition Superior Proposal; provided, however, that the Company may not exercise its right to terminate under this Section 6.3(e), unless but in each case (1) the Company shall have provided to Acquiror only at least three (3) Business Days' prior a time that follows Buyer’s receipt of written notice (a “Notice of Superior Proposal”) advising Buyer that its the Board of Directors or the Special Committee of FMRX has authorized the termination and intends to terminate this Agreement pursuant to this Section 6.3(e)received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal and identifying the Acquisition Proposal, Person making such Superior Proposal and (2) Acquiror does not make, within three after having provided Buyer five (35) Business Days of delivery of the notice, an offer such days prior written notice that a majority of the disinterested members of the Company's FMRX or its Board of Directors intends to recommend such Superior Proposal to its stockholders or the Special Committee determines that the foregoing Acquisition Proposal no longer constitutes terminate this Agreement in order to accept a Superior Proposal. In connection with the forgoing, the Company agrees that it will not Proposal or enter into an agreement which binds the Company Alternative Agreement with respect to such an Acquisition Superior Proposal, and having negotiated in good faith with Buyer to revise the Buyer’s offer such that the Superior Proposal unless (x) no longer qualifies as a Superior Proposal, and in the Company simultaneously delivers to Acquiror the notice contemplated by the foregoing proviso, (y) such agreement is not binding on the Company until three (3) Business Days after delivery case of the notice set forth in this Section 6.3(e) and clause (z) above, making the Company has payment required by Section 10.3(c), provided, that if in response to a Superior Proposal (a “Pending Proposal”), Buyer revises its offer (the right under “Revised Buyer Proposal”) such agreement that the Pending Proposal no longer qualifies as a Superior Proposal, and subsequent thereto any Seller receives any revisions or amendments to unilaterally terminate the Pending Proposal which causes such agreement Pending Proposal to constitute a Superior Proposal, the Sellers shall promptly give notice of such revision or amendment and shall again negotiate in good faith with Buyer (to revise the Revised Buyer Proposal such that the Superior Proposal no longer qualifies as a Superior Proposal) for two (2) business days prior to the termination FMRX’s, Familymeds’ or Arrow’s Board of Directors recommending such Superior Proposal to its stockholders or Sellers terminating this Agreement without any payment in order to accept a Superior Proposal or enter into an Alternative Agreement with respect to such Superior Proposal. For the avoidance of doubt, the parties acknowledge that the five (5) day period specified above shall apply to each and every Superior Proposal other liability than a Superior Proposal resulting from a revision or obligation of any kindamendment to a Pending Proposal in response to a Revised Buyer Proposal, in which case the two (2) business day period specified above shall apply.
(fd) The Company Nothing contained in this Agreement shall immediately ceaseprohibit FMRX or its Board of Directors from (i) disclosing to its stockholders a position contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act, or from issuing a “stop, look and shall cause listen” statement pending disclosure of its position thereunder, or (ii) making any party acting on disclosure to its behalf to ceasestockholders if the Board of Directors determines in good faith, and cause to be terminated any existing discussions or negotiations after consultation with any Third Party conducted heretofore with respect to any FMRX’s outside legal counsel, that the failure of the foregoing and shall request any Board of Directors of FMRX to make such parties disclosure would be reasonably likely to result in possession of confidential information about the Company or its Subsidiaries that was furnished by or on behalf a breach of the Company or its Subsidiaries directors’ exercise of their fiduciary obligations to return or destroy FMRX’s stockholders under applicable Requirements of Law. Subject to Section 7.9, FMRX shall take all such information in lawful acts to obtain the possession of any such party or the agent or advisor of any such partyFMRX Stockholder Approval.
Appears in 1 contract
Acquisition Proposals; Board Recommendation. (a) The Company agrees that it shall not, nor shall it permit any Company Subsidiary to, nor shall it authorize or knowingly permit any officer, director, employee, investment banker, attorney, accountant, agent or other advisor or representative of the Company or any Company Subsidiary, directly or indirectly, to (i) solicit or initiate the submission of any Acquisition Proposal, (ii) participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to, or take any other action knowingly to facilitate any inquiries or the making of any proposal that constitutes or that would reasonably be expected to lead to any Acquisition Proposal, (iii) grant any waiver or release under any standstill or similar agreement with respect to any class of the Company's equity securities or (iv) enter into any agreement with respect to any Acquisition Proposal, other than in the manner contemplated by Section 6.3(d); provided, however, that if the Company may take any action(s) described in any of the foregoing clauses in respect of a Person, if it receives from such Person an unsolicited bona fide written Acquisition Proposal from a Third Party that the Company's Board of Directors or the Special Committee determines in good faith (after consultation with an investment bank of nationally recognized reputation) is or could reasonably be expected likely to lead to the delivery of a Superior Proposal from and if the Company's Board of Directors determines in good faith, after consultation with outside legal counsel to the Company, that Third Partyit is obligated to take such action(s) in order to comply with its fiduciary duties under applicable law; provided, further, that, the Company may, subject shall have provided the notice contemplated by Section 6.3(c) and shall comply with Section 6.3(d). The Company shall cease and cause to compliance be terminated immediately all existing discussions or negotiations with the other provisions of this Section 6.3, furnish information any Persons conducted heretofore with respect to, and engage in discussions and negotiations with, such Third Party with respect or that could be reasonably expected to its Acquisition Proposal ("Permitted Actions"). Notwithstanding the foregoing, the Board of Directors shall not take any Permitted Actions unless the Company provides Acquiror with reasonable advance notice thereof.
(b) Except as permitted by this Section 6.3(b), neither the Board of Directors of the Company, the Special Committee nor any committee thereof shall amend, withdraw, modify, change, condition or qualify in any manner adverse to Acquiror, the Company Recommendation (it being understood and agreed that a communication by the Board of Directors of the Company or the Special Committee to the Company Stockholders pursuant to Rule 14d-9(f) of the Exchange Act, or any similar communication to the Company Stockholders in connection with the making or amendment of a tender offer or exchange offer, shall not be deemed to constitute a withdrawal, modification, amendment, condition or qualification of the Company Recommendation for all purposes of this Agreement, including this Section 6.3 and Section 10.1(e)). Notwithstanding the foregoing, in the event that the Board of Directors of the Company or the Special Committee takes the actions set forth in Section 6.3(e), the Board of Directors of the Company or the Special Committee may (i) withdraw or modify in any manner adverse to Acquiror, the Company Recommendation and (ii) approve or recommend, or propose to approve or recommendlead to, any Acquisition Proposal.
(cb) Unless the Company's Board of Directors or the Special Committee has previously withdrawn, or is concurrently therewith withdrawing, the Company Recommendation in accordance with this Section 6.36.2, neither the Company's Board of Directors nor any committee thereof shall recommend any Acquisition Proposal to the Company Stockholdersshareholders. Notwithstanding the foregoing, nothing contained in this Section 6.3(c6.3(b) or elsewhere in this Agreement shall prevent the Company's Board of Directors or the Special Committee from complying with Rule 14e-2 under the Exchange 1934 Act with respect to any Acquisition Proposal or making any disclosure required by or otherwise complying with applicable Lawlaw.
(dc) The Company shall notify Acquiror promptly (but in no event later than the next second Business Day) after receipt by the Company or any Company Subsidiary (or any of their respective directors, officers, agents or advisors) of any Acquisition Proposal or any request for nonpublic information relating to the Company or any of its Subsidiaries in connection with an Acquisition Proposal or for access to the properties, books or records of the Company or any of its Subsidiaries or any request for a waiver or release under any standstill or similar agreement, by any Person person that informs the Board of Directors of the Company or such Subsidiary that it is considering making, or has made an Acquisition Proposal; provided, however, that prior to participating in any discussions or negotiations or furnishing any such information, the Company shall receive from such Person an executed confidentiality agreement on terms that are not materially less favorable to the Company than the Confidentiality Agreement. The notice shall indicate the identity of the offeror and the terms and conditions of the proposal or request and the identity of the Person making it, and the Company will promptly notify Acquiror of any material modification of or material amendment to any Acquisition Proposal (and the terms of such modification or amendment); provided, however, that, without limiting what changes may be material, any change in the consideration to be paid with respect to the Acquisition Proposal shall be deemed to be a material modification or a material amendmentrequest. The Company shall keep Acquiror informed, on a reasonably current basis, of the status (including amendments or proposed amendments) of any negotiations, discussions and documents with respect to such Acquisition Proposal or request.
(ed) HoldingPursuant to the terms of Section 10.1, either Acquiror or the Company may terminate this Agreement, if the Company's Board of Directors or the Special Committee, after consultation with its financial and legal advisors, shall have determined (i) to approve or recommend an Acquisition Proposal after concluding that the Acquisition Proposal constitutes a Superior Proposal and (ii) to enter into a binding agreement concerning the Acquisition Proposal; provided, however, that the Company may not exercise its right to terminate this Agreement under this Section 6.3(e6.3(d) and Section 10.1(c)(ii), unless (1i) the Company shall have provided to Acquiror at least three (3) five Business Days' prior written notice that its Board of Directors or the Special Committee has authorized the termination and intends to terminate this Agreement pursuant to this Section 6.3(e6.3(d) and Section 10.1(c)(ii), specifying the material terms and conditions of the Acquisition Proposal, and (2ii) Acquiror does not make, within three (3) five Business Days of delivery of receiving the notice, an offer such that a majority of the disinterested members of the Company's Board of Directors or the Special Committee determines that (x) the foregoing Acquisition Proposal no longer constitutes a Superior ProposalProposal or (y) its fiduciary duties no longer require it to take such action(s) and (iii) on or prior to such termination, the Company shall have paid to Acquiror the Termination Fee (as defined in Section 10.3(b)); provided, further, that Acquiror may exercise its right to terminate under this Section 6.3(d) and Section 10.1(d)(iii) within five Business Days after receiving the notice contemplated by this Section 6.3(d). In connection with the forgoingforegoing, the Company agrees that it will (A) not enter into an a binding agreement which binds the Company with respect to such an Acquisition Proposal unless (x) the Company simultaneously delivers to Acquiror the notice contemplated by the foregoing proviso, (y) such agreement is not binding on the Company until three (3) Business Days after delivery of the notice set forth in this Section 6.3(e) and (z) the Company has the right under such agreement to unilaterally terminate such agreement prior to the termination of this Agreement without in accordance with its terms and (B) notify the Acquiror promptly, if its intention to enter into such an agreement shall change at any payment or other liability or obligation of any kindtime after such notification.
(f) The Company shall immediately cease, and shall cause any party acting on its behalf to cease, and cause to be terminated any existing discussions or negotiations with any Third Party conducted heretofore with respect to any of the foregoing and shall request any such parties in possession of confidential information about the Company or its Subsidiaries that was furnished by or on behalf of the Company or its Subsidiaries to return or destroy all such information in the possession of any such party or the agent or advisor of any such party.
Appears in 1 contract
Acquisition Proposals; Board Recommendation. (a) The Company Tuscarora agrees that it shall not, nor shall it permit any Company Tuscarora Subsidiary to, nor shall it authorize or knowingly permit any officer, director, employee, investment banker, attorney, accountant, agent or other advisor or representative of the Company Tuscarora or any Company Tuscarora Subsidiary, directly or indirectly, to (i) solicit or initiate initiate, the making or submission of any Acquisition Proposal, (ii) participate in any discussions or negotiations regarding, or furnish to any Person any information with respect toto any solicitation or initiation of an Acquisition Proposal, or take any other action knowingly to facilitate solicit or initiate any inquiries or the making of any proposal that constitutes constitutes, or that would may be reasonably be expected to lead to to, any Acquisition Proposal, (iii) grant any waiver or release under any standstill or similar agreement with respect to any class of the CompanyTuscarora's equity securities or amend the Rights Agreement or take any action with respect to, or make any determination under, the Rights Agreement, including a redemption of the Rights in order to facilitate any Acquisition Proposal, (iv) enter into any agreement with respect approve or recommend, or propose publicly to approve or recommend, any Acquisition Proposal; provided, however, that if the Company receives an unsolicited Acquisition Proposal from a Third Party that the Company's Board of Directors or the Special Committee determines in good faith is or could reasonably be expected to lead to the delivery of a Superior Proposal from that Third Party, the Company may, subject to compliance with the other provisions of this Section 6.3, furnish information to, and engage in discussions and negotiations with, such Third Party with respect to its Acquisition Proposal ("Permitted Actions"). Notwithstanding the foregoing, the Board of Directors shall not take any Permitted Actions unless the Company provides Acquiror with reasonable advance notice thereof.
(b) Except as permitted by this Section 6.3(b), neither the Board of Directors of the Company, the Special Committee nor any committee thereof shall amend, withdraw, modify, change, condition or qualify in any manner adverse to Acquiror, the Company Recommendation (it being understood and agreed that a communication by the Board of Directors of the Company or the Special Committee to the Company Stockholders pursuant to Rule 14d-9(f) of the Exchange Act, or any similar communication to the Company Stockholders in connection with the making or amendment of a tender offer or exchange offer, shall not be deemed to constitute a withdrawal, modification, amendment, condition or qualification of the Company Recommendation for all purposes of this Agreement, including this Section 6.3 and Section 10.1(e)). Notwithstanding the foregoing, in the event that the Board of Directors of the Company or the Special Committee takes the actions set forth in Section 6.3(e), the Board of Directors of the Company or the Special Committee may (i) withdraw or modify in any manner adverse to Acquiror, the Company Recommendation and (iiv) approve or recommend, or propose to approve or recommend, or execute or enter into, any agreement with respect to any Acquisition Proposal.
, other than in the manner contemplated by Section 6.03(d); provided, however, that Tuscarora may take any action(s) described in the foregoing clauses (ci), (ii), (iii), (iv), or (v) Unless in respect of any Person, in response to an unsolicited bona fide written Acquisition Proposal from a Person reasonably believed to have the Companyfinancial and other capability to consummate an Acquisition Proposal if Tuscarora's Board of Directors determines in good faith either (y) that an Acquisition Proposal could reasonably result in a Superior Proposal or (z) based upon the Special Committee advice of its outside legal counsel that it is otherwise required to take such action(s) in order to comply with its duties as directors under Applicable Law; provided, further, that, prior to Tuscarora taking any such action(s) in respect of such Person, such Person shall have entered into a confidentiality agreement with Tuscarora on customary terms provided that if such confidentiality agreement contains provisions that are less restrictive than the comparable provision, or omits restrictive provisions, contained in the Confidentiality Agreement, then the Confidentiality Agreement will be deemed to be amended to contain only such less restrictive provisions or to omit such restrictive provisions, as the case may be, and Tuscarora shall provide the notice contemplated by Section 6.03(c). Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding sentence by any officer, director, employee, investment banker, attorney, accountant, agent or other advisor or representative of Tuscarora or any Tuscarora Subsidiary, whether or not such individual is purporting to act on behalf of Tuscarora or any Tuscarora Subsidiary or otherwise, shall be deemed to be a breach of this Section 6.03 by Tuscarora. Subject to Tuscarora's right to consider certain
(b) Unless Tuscarora's Board of Directors has previously withdrawn, or is concurrently therewith withdrawing, the Company Tuscarora Recommendation in accordance with this Section 6.36.02, neither the CompanyTuscarora's Board of Directors nor any committee thereof shall recommend any Acquisition Proposal to the Company StockholdersTuscarora shareholders. Notwithstanding the foregoing, nothing contained in this Section 6.3(c6.03(b) or elsewhere in this Agreement shall prevent the CompanyTuscarora's Board of Directors or the Special Committee from complying with Rule 14e-2 under the Exchange 1934 Act with respect to any Acquisition Proposal or making any disclosure required by or otherwise complying with applicable Applicable Law.
(dc) The Company Tuscarora shall notify Acquiror SCA Packaging promptly (but in no event later than the next Business Dayone business day) after receipt by the Company Tuscarora or any Tuscarora Subsidiary (or any of their respective directors, officers, agents or advisors), of any Acquisition Proposal or any negotiations, discussions or contacts concerning, or any request for nonpublic information relating to the Company or any of its Subsidiaries in connection with an Acquisition Proposal or for access to the properties, books or records of the Company Tuscarora or any of its Subsidiaries Tuscarora Subsidiary or any request for a waiver or release under any standstill or similar agreement, by any Person that informs the Board of Directors of the Company or such Subsidiary that it is considering making, or has made an Acquisition Proposal; provided, however, that prior . Such notice to participating SCA Packaging shall be made orally and in any discussions or negotiations or furnishing any such information, the Company shall receive from such Person an executed confidentiality agreement on terms that are not materially less favorable to the Company than the Confidentiality Agreement. The notice writing and shall indicate the identity of the offeror and the terms and conditions of the proposal such proposal, inquiry, contact or request and the identity of the Person making it, and the Company will promptly notify Acquiror of any material modification of or material amendment to any Acquisition Proposal (and the terms of such modification or amendment); provided, however, that, without limiting what changes may be material, any change in the consideration to be paid with respect to the Acquisition Proposal shall be deemed to be a material modification or a material amendmentrequest. The Company Tuscarora shall keep Acquiror SCA Packaging informed, on a reasonably current basis, of the status and details (including amendments or proposed amendments) of any negotiations, discussions and documents with respect to such Acquisition Proposal or requestrequest and the status of any negotiations or discussions.
(ed) HoldingPursuant to the terms of Section 10.01(c)(ii) and Section 10.01(d)(ii) respectively, Acquiror either SCA Packaging or the Company Tuscarora may terminate this Agreement, Agreement at any time prior to the Tuscarora Shareholder Approval if the CompanyTuscarora's Board of Directors or the Special Committee, after consultation with its financial and legal advisors, shall have determined determined, (i) to approve or recommend an Acquisition Proposal after concluding that the such Acquisition Proposal (y) constitutes a Superior Proposal or (z) is one that its duties as directors under Applicable Law require it to approve or recommend (as determined in good faith based upon the advice of its outside legal counsel) and (ii) to enter into a binding agreement concerning the such Acquisition Proposal; provided, however, provided that the Company Tuscarora may not exercise its right to terminate under this Section 6.3(e), 6.03(d) and Section 10.01(c)(ii) (and may not enter into a binding written agreement with respect to such an Acquisition Proposal) unless (1) the Company Tuscarora shall have provided to Acquiror SCA Packaging at least three (3) five Business Days' prior written notice that its Board of Directors or the Special Committee has authorized the termination and intends to terminate this Agreement pursuant to this Section 6.3(e6.03(d) and Section 10.01(c)(ii), specifying the material terms and conditions of such Acquisition Proposal and providing the Acquisition Proposalmost current version of the agreement relating thereto, if any, and (2) Acquiror SCA Packaging does not make, within three (3) five Business Days of delivery of the receiving such notice, an offer such that a majority of the disinterested members of the CompanyTuscarora's Board of Directors or the Special Committee determines that (A) the foregoing Acquisition Proposal no longer constitutes a Superior ProposalProposal or (B) its duties as directors no longer require it to take such action(s); provided, further, that SCA Packaging may exercise its right to terminate under this Section 6.03(d) and Section 10.01(d)(ii) at any time after receiving the notice contemplated by this Section 6.03(d). In connection with the forgoingforegoing, the Company Tuscarora agrees that it will (x) not enter into an a binding agreement which binds the Company with respect to such an Acquisition Proposal unless (x) until at least the Company simultaneously delivers to Acquiror sixth Business Day after it has provided the notice contemplated by the foregoing provisoto SCA Packaging required hereby, (y) such agreement is not binding on the Company until three (3) Business Days after delivery of the notice set forth negotiate in this Section 6.3(e) good faith with SCA Packaging, and consider in good faith any offer made by SCA Packaging, during that period and (z) the Company has the right under notify SCA Packaging promptly if its intention to enter into such an agreement to unilaterally terminate shall change at any time after such agreement prior to the termination of this Agreement without any payment or other liability or obligation of any kindnotification.
(f) The Company shall immediately cease, and shall cause any party acting on its behalf to cease, and cause to be terminated any existing discussions or negotiations with any Third Party conducted heretofore with respect to any of the foregoing and shall request any such parties in possession of confidential information about the Company or its Subsidiaries that was furnished by or on behalf of the Company or its Subsidiaries to return or destroy all such information in the possession of any such party or the agent or advisor of any such party.
Appears in 1 contract
Acquisition Proposals; Board Recommendation. (a) The Company shall, and shall cause its Subsidiaries, and its and their officers, directors, employees, financial advisers, attorneys, accountants and other advisers, representatives and agents (collectively, "Representatives") to cease and cause to be terminated immediately any discussions or negotiations with any parties that may be ongoing with respect to, or that could reasonably be expected to lead to, an Acquisition Proposal. The Company agrees that it shall not, nor shall it permit any Company Subsidiary of its Subsidiaries to, nor shall it authorize or knowingly permit any officer, director, employee, investment banker, attorney, accountant, agent or other advisor or representative of the Company or any Company Subsidiaryits Representatives, directly or indirectly, to (i) solicit solicit, initiate, facilitate or initiate encourage (including by way of furnishing information) the submission submission, making or announcement of any Acquisition Proposal, (ii) participate initiate or engage in any discussions or negotiations regarding, or furnish or disclose to any Person any information with respect to, or take any other action knowingly to facilitate or in furtherance of any inquiries or the submission, making or announcement of any proposal that constitutes constitutes, or that would may be reasonably be expected to lead to to, any Acquisition Proposal, (iii) grant any waiver or release under any standstill or similar agreement with respect to any class of the Company's equity securities or (iv) enter into any agreement with respect to any Acquisition Proposal; provided, however, that if the Company receives an unsolicited Acquisition Proposal from a Third Party that the Company's Board of Directors or the Special Committee determines in good faith is or could reasonably be expected to lead to the delivery of a Superior Proposal from that Third Party, the Company may, subject to compliance with the other provisions of this Section 6.3, furnish information to, and engage in discussions and negotiations with, such Third Party with respect to its Acquisition Proposal ("Permitted Actions"). Notwithstanding the foregoing, the Board of Directors shall not take any Permitted Actions unless the Company provides Acquiror with reasonable advance notice thereof.agreement,
(b) Except as permitted by this Section 6.3(b), neither the Board of Directors of the Company, the Special Committee nor any committee thereof shall amend, withdraw, modify, change, condition or qualify in any manner adverse to Acquiror, the Company Recommendation (it being understood and agreed that a communication by the Board of Directors of the Company or the Special Committee to the Company Stockholders pursuant to Rule 14d-9(f) of the Exchange Act, or any similar communication to the Company Stockholders in connection with the making or amendment of a tender offer or exchange offer, shall not be deemed to constitute a withdrawal, modification, amendment, condition or qualification of the Company Recommendation for all purposes of this Agreement, including this Section 6.3 and Section 10.1(e)). Notwithstanding the foregoing, in the event that the Board of Directors of the Company or the Special Committee takes the actions set forth in Section 6.3(e), the Board of Directors of the Company or the Special Committee may (i) withdraw or modify in any manner adverse to Acquiror, the Company Recommendation and (ii) approve or recommend, or propose to approve or recommend, any Acquisition Proposal.
(c) Unless the Company's Board of Directors or the Special Committee has previously withheld, withdrawn, or is concurrently therewith withdrawing, the Company Recommendation in accordance with this Section 6.3Recommendation, neither the Company's Board of Directors nor any committee thereof shall recommend any Acquisition Proposal to the Company StockholdersCompany's shareholders. Notwithstanding the foregoing, nothing contained in this Section 6.3(c6.3(b) or elsewhere in this Agreement shall prevent the Company's Board of Directors or the Special Committee from complying with Rule 14e-2 under the Exchange Act with respect to any Acquisition Proposal or making any disclosure required by or otherwise complying with applicable Law.
(dc) The Company shall notify Acquiror promptly (but in no event later than Within one day following the next Business Day) after date of receipt by the Company of any Acquisition Proposal or any request for information relating to the Company or any of its Subsidiaries in connection with an (or any of their respective directors, officers, agents or advisers) of any Acquisition Proposal Proposal, any inquiry or contacts concerning, or any request for information or for access to the properties, books or records of the Company or any of its Subsidiaries or any request for a waiver or release under any standstill or similar agreement, by any Person that informs the Board of Directors of the Company has made an Acquisition Proposal or such Subsidiary indicates that it is considering making, or has made making an Acquisition Proposal; provided, however, that prior to participating in any discussions or negotiations or furnishing any such information, the Company shall receive from (i) notify Parent that a Person has made or may be considering making an Acquisition Proposal, (ii) notify Parent of the identity of such Person an executed confidentiality agreement on terms that are not materially less favorable to the Company than the Confidentiality Agreement. The notice shall indicate and of the terms and conditions of such Acquisition Proposal, inquiry, contact, or request, and (iii) provide copies of any written materials received by the proposal or request and the identity Company in respect of the Person making itforegoing. The Company agrees that it shall keep Parent reasonably informed of the status and details (including amendments or proposed amendments) of any such Acquisition Proposal, inquiry, contact or request, and keep Parent reasonably informed as to the material details of any information requested of or provided by the Company will promptly notify Acquiror and as to the material details of all discussions -42- 47 or negotiations with respect to any material modification of such request, Acquisition Proposal or material amendment inquiry. The Company agrees that it shall simultaneously provide to Parent any non-public information concerning the Company provided to any other Person or group in connection with any Acquisition Proposal which was not previously provided to Parent.
(d) Upon notice and in accordance with the terms of such modification or amendment); providedSection 9.1 hereof, however, that, without limiting what changes may be material, any change in the consideration to be paid with respect to the Acquisition Proposal shall be deemed to be a material modification or a material amendment. The Company shall keep Acquiror informed, on a reasonably current basis, of the status of any negotiations, discussions and documents with respect to such Acquisition Proposal or request.
(e) Holding, Acquiror or the Company may terminate this Agreement, Agreement at any time before the Company Shareholder Approval is obtained if (i) the Company's Board of Directors or the Special Committee, after consultation with its financial and legal advisors, shall have determined (i) authorized the Company, subject to approve or recommend an Acquisition Proposal after concluding that the Acquisition Proposal constitutes a Superior Proposal terms and (ii) conditions of this Agreement, to enter into a binding agreement concerning the Acquisition a transaction that constitutes a Superior Proposal; provided, however, that the Company may not exercise its right to terminate under this Section 6.3(e), unless (1ii) the Company shall have provided to Acquiror at least three (3) Business Days' prior written notice notifies Parent that its Board of Directors or the Special Committee has authorized the termination and it intends to terminate this Agreement pursuant to this Section 6.3(e)enter into such agreement, specifying the material terms and conditions of the Acquisition Proposal, such agreement and (2) Acquiror does not make, within three (3) provides Parent with four Business Days (during which period of delivery four Business Days the Company shall refrain from entering into such Agreement) to propose and agree to enter into a modification of the noticethis Agreement, an offer such that a majority of the disinterested members of (iii) the Company's Board of Directors or has duly considered any proposals that Parent may make during the Special Committee four Business Day period described in (ii) above and the Company has fully cooperated with Parent during such four Business Day period (including, without limitation, by complying with Section 6.3(c) of this Agreement) and the Company, after consideration of any proposals made by Parent, determines in good faith that the foregoing Acquisition Proposal no longer constitutes remains a Superior Proposal. In connection with , (iv) Parent has received the forgoingTermination Fee (as hereinafter defined) contemplated by Section 9.3(b), the Company agrees that it will not enter into an agreement which binds the Company with respect to such an Acquisition Proposal unless and (xv) the Company simultaneously delivers intends, in good faith, to Acquiror the notice contemplated by the foregoing proviso, (y) such agreement is not binding on the Company until three (3) Business Days after delivery of the notice set forth in this Section 6.3(e) and (z) the Company has the right under such enter into a definitive agreement to unilaterally terminate effect the Superior Proposal immediately following such agreement prior to the termination of this Agreement without any payment or other liability or obligation of any kindtermination.
(f) The Company shall immediately cease, and shall cause any party acting on its behalf to cease, and cause to be terminated any existing discussions or negotiations with any Third Party conducted heretofore with respect to any of the foregoing and shall request any such parties in possession of confidential information about the Company or its Subsidiaries that was furnished by or on behalf of the Company or its Subsidiaries to return or destroy all such information in the possession of any such party or the agent or advisor of any such party.
Appears in 1 contract
Acquisition Proposals; Board Recommendation. (a) The Company Target agrees that after the date hereof it shall not, nor shall it permit any Company the Target Subsidiary to, nor shall it authorize or knowingly permit any officer, director, employee, investment banker, attorney, accountant, agent or other advisor or representative of Target or the Company or any Company Target Subsidiary, directly or indirectly, to (i) solicit solicit, initiate or initiate knowingly facilitate or encourage the submission of any Acquisition Proposal, (ii) participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to, or take any other action knowingly to facilitate any inquiries or the making of any proposal that constitutes constitutes, or that would reasonably could be expected to lead to to, any Acquisition Proposal, (iii) grant any waiver or release under any standstill or similar agreement with respect to any class of the Company's equity securities of Target or (iv) enter into any agreement with respect to any Acquisition Proposal, other than in the manner contemplated by Section 5.03(c); provided, however, that if Target may take any action described in the Company receives foregoing clauses (i), (ii), (iii) or (iv) in respect of any Person, but only if: (x) such Person delivers an unsolicited Acquisition Proposal from a Third Party that that, in the Company's Board of Directors or the Special Committee determines in good faith judgment of the Target board of directors, either is a Superior Proposal or could reasonably be expected to lead to the delivery to Target of a Superior Proposal from that Third Party, within 75 days of delivery to Target of such Acquisition Proposal or if otherwise required in order to satisfy the Company may, subject to compliance with fiduciary duties of the other provisions Target board of directors as such duties would exist under applicable law in the absence of this Section 6.3, furnish information to, 5.03; and engage (y) prior to Target taking such action in discussions and negotiations withrespect of such Person, such Third Party Person shall have entered into a confidentiality agreement with Target in form and substance substantially similar to the Confidentiality Agreement; provided further that Target shall not enter into any binding agreement (other than such a confidentiality agreement) with respect to its any such Acquisition Proposal ("Permitted Actions"without first complying with Section 5.03(c) and terminating this Agreement pursuant to Section 9.01(c)(ii). Notwithstanding Buyer acknowledges that prior to the foregoingdate of this Agreement, Target has solicited or caused to be solicited by the Board Financial Advisor indications of Directors interest and proposals for an Acquisition Proposal. If, subsequent to the execution and delivery of this Agreement and prior to the termination of this Agreement in accordance with its terms, Target receives an inquiry or proposal from any Person relating to an Acquisition Proposal, Target shall advise Buyer of the receipt of such inquiry or proposal (and any change or modification thereto) promptly upon such receipt. Target shall also advise Buyer of the material terms and conditions of such inquiry or proposal and any subsequent change or modification thereto, but Target shall not take be required to disclose the identity or source of such inquiry or proposal or any Permitted Actions unless the Company provides Acquiror with reasonable advance notice thereofagent or representative acting on behalf of such Person.
(b) Except as permitted by this Section 6.3(b), neither the Board of Directors of the Company, the Special Committee nor any committee thereof shall amend, withdraw, modify, change, condition or qualify in any manner adverse to Acquiror, the Company Recommendation (it being understood and agreed that a communication by the Board of Directors of the Company or the Special Committee to the Company Stockholders pursuant to Rule 14d-9(f) of the Exchange Act, or any similar communication to the Company Stockholders in connection with the making or amendment of a tender offer or exchange offer, shall not be deemed to constitute a withdrawal, modification, amendment, condition or qualification of the Company Recommendation for all purposes of this Agreement, including this Section 6.3 and Section 10.1(e)). Notwithstanding the foregoing, in the event that the Board of Directors of the Company or the Special Committee takes the actions set forth in Section 6.3(e), the Board of Directors of the Company or the Special Committee may (i) withdraw or modify in any manner adverse to Acquiror, the Company Recommendation and (ii) approve or recommend, or propose to approve or recommend, any Acquisition Proposal.
(c) Unless the Company's Board board of Directors or the Special Committee directors of Target has previously amended, modified, withdrawn, conditioned or qualified or is concurrently therewith amending, modifying, withdrawing, conditioning or qualifying the Company Target Recommendation in accordance with this Section 6.35.02, neither the Company's Board board of Directors nor any committee thereof directors of Target shall not recommend any Acquisition Proposal to the Company StockholdersTarget stockholders. Notwithstanding the foregoing, nothing contained in this Section 6.3(c) 5.03 or elsewhere in this Agreement shall prevent the Company's Board board of Directors or the Special Committee directors of Target from complying with Rule 14e-2 under the Exchange Act with respect to any Acquisition Proposal or making any disclosure required by applicable law or otherwise complying with applicable Lawstock exchange rule or regulation.
(dc) The Company shall notify Acquiror promptly (but in no event later than the next Business Day) after receipt by the Company of any Acquisition Proposal or any request for information relating Pursuant to the Company or any of its Subsidiaries in connection with an Acquisition Proposal or for access to the properties, books or records of the Company or any of its Subsidiaries or any request for a waiver or release under any standstill or similar agreement, by any Person that informs the Board of Directors of the Company or such Subsidiary that it is considering making, or has made an Acquisition Proposal; provided, however, that prior to participating in any discussions or negotiations or furnishing any such information, the Company shall receive from such Person an executed confidentiality agreement on terms that are not materially less favorable to the Company than the Confidentiality Agreement. The notice shall indicate the terms and conditions of the proposal or request and the identity of the Person making it, and the Company will promptly notify Acquiror of any material modification of or material amendment to any Acquisition Proposal (and the terms of such modification or amendmentSection 9.01(c)(ii); provided, however, that, without limiting what changes may be material, any change in the consideration to be paid with respect to the Acquisition Proposal shall be deemed to be a material modification or a material amendment. The Company shall keep Acquiror informed, on a reasonably current basis, of the status of any negotiations, discussions and documents with respect to such Acquisition Proposal or request.
(e) Holding, Acquiror or the Company Target may terminate this Agreement, if Agreement in the Company's Board event of Directors or the Special Committee, after consultation with its financial and legal advisors, shall have determined (i) to approve or recommend an Acquisition Proposal after concluding that the Acquisition Proposal constitutes a Superior Proposal and (ii) or if otherwise required in order to enter into a binding agreement concerning satisfy the Acquisition Proposalfiduciary duties of the Target board of directors as such duties would exist under applicable law in the absence of this Section 5.03; provided, however, provided that the Company Target may not exercise its right to so terminate under this Section 6.3(e), unless (19.01(c)(ii) the Company shall have provided to Acquiror at least three (3) Business Days' prior written notice that its Board of Directors or the Special Committee has authorized the termination and intends to terminate this Agreement pursuant to this Section 6.3(e), specifying the material terms and conditions of the Acquisition Proposal, and (2) Acquiror does not make, within three (3) Business Days of delivery of the notice, an offer such that a majority of the disinterested members of the Company's Board of Directors or the Special Committee determines that the foregoing Acquisition Proposal no longer constitutes a Superior Proposal. In connection with the forgoing, the Company agrees that it will may not enter into an a binding agreement which binds (other than a confidentiality agreement as contemplated by clause (y) in the Company first sentence contained in Section 5.03(a)) with respect to such an Acquisition Proposal Superior Proposal, unless (x) prior to or concurrent with such termination Target shall have paid to Buyer the Company simultaneously delivers to Acquiror the notice Termination Fee as contemplated by the foregoing proviso, (y) such agreement is not binding on the Company until three (3) Business Days after delivery of the notice set forth in this Section 6.3(e) and (z) the Company has the right under such agreement to unilaterally terminate such agreement prior to the termination of this Agreement without any payment or other liability or obligation of any kind9.03.
(f) The Company shall immediately cease, and shall cause any party acting on its behalf to cease, and cause to be terminated any existing discussions or negotiations with any Third Party conducted heretofore with respect to any of the foregoing and shall request any such parties in possession of confidential information about the Company or its Subsidiaries that was furnished by or on behalf of the Company or its Subsidiaries to return or destroy all such information in the possession of any such party or the agent or advisor of any such party.
Appears in 1 contract
Acquisition Proposals; Board Recommendation. (a) The Company agrees that it shall not, nor shall it permit any Company Subsidiary to, nor shall it authorize or knowingly permit any officer, director, employee, investment banker, attorney, accountant, agent or other advisor or representative of the Company or any Company Subsidiary, directly or indirectly, to (i) solicit or initiate the submission of any Acquisition Proposal, (ii) participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to, or take any other action knowingly to facilitate any inquiries or the making of any proposal that constitutes or that would reasonably be expected to lead to any Acquisition Proposal, (iii) grant any waiver or release under any standstill or similar agreement with respect to any class of the Company's equity securities or (iv) enter into any agreement with respect to any Acquisition Proposal; provided, however, that if the Company receives an unsolicited Acquisition Proposal from a Third Party that the Company's Board of Directors or the Special Committee determines in good faith is or could reasonably be expected to lead to the delivery of a Superior Proposal from that Third Party, the Company may, subject to compliance with the other provisions of this Section 6.3, furnish information to, and engage in discussions and negotiations with, such Third Party with respect to its Acquisition Proposal ("Permitted Actions"). Notwithstanding the foregoing, the Board of Directors shall not take any Permitted Actions unless the Company provides Acquiror with reasonable advance notice thereof.
(b) Except as permitted by this Section 6.3(b), neither the Board of Directors of the Company, the Special Committee nor any committee thereof shall amend, withdraw, modify, change, condition or qualify in any manner adverse to Acquiror, the Company Recommendation (it being understood and agreed that a communication by the Board of Directors of the Company or the Special Committee to the Company Stockholders pursuant to Rule 14d-9(f) of the Exchange Act, or any similar communication to the Company Stockholders in connection with the making or amendment of a tender offer or exchange offer, shall not be deemed to constitute a withdrawal, modification, amendment, condition or qualification of the Company Recommendation for all purposes of this Agreement, including this Section 6.3 and Section 10.1(e)). Notwithstanding the foregoing, in the event that the Board of Directors of the Company or the Special Committee takes the actions set forth in Section 6.3(e), the Board of Directors of the Company or the Special Committee may (i) withdraw or modify in any manner adverse to Acquiror, the Company Recommendation and (ii) approve or recommend, or propose to approve or recommend, any Acquisition Proposal.
(c) Unless the Company's Board of Directors or the Special Committee has previously withdrawn, or is concurrently therewith withdrawing, the Company Recommendation in accordance with this Section 6.3, neither the Company's Board of Directors nor any committee thereof shall recommend any Acquisition Proposal to the Company Stockholders. Notwithstanding the -38- foregoing, nothing contained in this Section 6.3(c) or elsewhere in this Agreement shall prevent the Company's Board of Directors or the Special Committee from complying with Rule 14e-2 under the Exchange Act with respect to any Acquisition Proposal or making any disclosure required by or otherwise complying with applicable Law.
(d) The Company shall notify Acquiror promptly (but in no event later than the next Business Day) after receipt by the Company of any Acquisition Proposal or any request for information relating to the Company or any of its Subsidiaries in connection with an Acquisition Proposal or for access to the properties, books or records of the Company or any of its Subsidiaries or any request for a waiver or release under any standstill or similar agreement, by any Person that informs the Board of Directors of the Company or such Subsidiary that it is considering making, or has made an Acquisition Proposal; provided, however, that prior to participating in any discussions or negotiations or furnishing any such information, the Company shall receive from such Person an executed confidentiality agreement on terms that are not materially less favorable to the Company than the Confidentiality Agreement. The notice shall indicate the terms and conditions of the proposal or request and the identity of the Person making it, and the Company will promptly notify Acquiror of any material modification of or material amendment to any Acquisition Proposal (and the terms of such modification or amendment); provided, however, that, without limiting what changes may be material, any change in the consideration to be paid with respect to the Acquisition Proposal shall be deemed to be a material modification or a material amendment. The Company shall keep Acquiror informed, on a reasonably current basis, of the status of any negotiations, discussions and documents with respect to such Acquisition Proposal or request.
(e) Holding, Acquiror or the Company may terminate this Agreement, if the Company's Board of Directors or the Special Committee, after consultation with its financial and legal advisors, shall have determined (i) to approve or recommend an Acquisition Proposal after concluding that the Acquisition Proposal constitutes a Superior Proposal and (ii) to enter into a binding agreement concerning the Acquisition Proposal; provided, however, that the Company may not exercise its right to terminate under this Section 6.3(e), unless (1) the Company shall have provided to Acquiror at least three (3) Business Days' prior written notice that its Board of Directors or the Special Committee has authorized the termination and intends to terminate this Agreement pursuant to this Section 6.3(e), specifying the material terms and conditions of the Acquisition Proposal, and (2) Acquiror does not make, within three (3) Business Days of delivery of the notice, an offer such that a majority of the disinterested members of the Company's Board of Directors or the Special Committee determines that the foregoing Acquisition Proposal no longer constitutes a Superior Proposal. In connection with the forgoing, the Company agrees that it will not enter into an agreement which binds the Company with respect to such an Acquisition Proposal unless (x) the Company simultaneously delivers to Acquiror the notice contemplated by the foregoing proviso, (y) such agreement is not binding on the Company until three (3) Business Days after delivery of the notice set forth in this Section 6.3(e) and (z) the Company has the right under such agreement to unilaterally terminate such agreement prior to the termination of this Agreement without any payment or other liability or obligation of any kindkind prior to the termination of this Agreement.
(f) The Company shall immediately cease, and shall cause any party acting on its behalf to cease, and cause to be terminated any existing discussions or negotiations with any Third Party conducted heretofore with respect to any of the foregoing and shall request any such parties in possession of confidential information about the Company or its Subsidiaries that was furnished by or on behalf of the Company or its Subsidiaries to return or destroy all such information in the possession of any such party or the agent or advisor of any such party.
Appears in 1 contract
Acquisition Proposals; Board Recommendation. (a) The Company DHT agrees that it shall not, nor shall it permit any Company Subsidiary to, nor shall it authorize or knowingly permit any officer, director, employee, investment banker, attorney, accountant, agent or other advisor or representative of the Company or any Company SubsidiaryDHT, directly or indirectly, to (i) solicit solicit, initiate or initiate knowingly facilitate or encourage the submission of any Acquisition ProposalProposal for DHT, (ii) participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to, or take any other action knowingly to facilitate any inquiries or the making of any proposal that constitutes or that would reasonably be expected to lead to any an Acquisition ProposalProposal for DHT, (iii) grant any waiver or release under any standstill or similar agreement with respect to any class of the Company's DHT equity securities or (iv) enter into any agreement with respect to any Acquisition ProposalProposal for DHT; provided, however, that if if, at any time prior to receipt of the Company receives an unsolicited Acquisition Proposal from a Third Party that the CompanyDHT Shareholder Approval, DHT's Board of Directors or the Special Committee reasonably determines in good faith is or faith, after receipt of written advice from outside counsel and independent financial advisor of DHT, that failing to take such action could reasonably be expected to be a breach of its fiduciary duties to DHT's shareholders under applicable law, DHT may, in response to an Acquisition Proposal for DHT made after the date of this Agreement which was not solicited by DHT or its representatives or agents and which did not otherwise result from a breach of this Section 6.2, and which is reasonably likely to lead to the delivery of a Superior Proposal from that Third PartyProposal, the Company may, and subject to compliance with the other provisions of this Section 6.3, 6.2(c) (x) furnish information to, and engage in discussions and negotiations with, such Third Party with respect to DHT to any person pursuant to a customary confidentiality agreement including customary standstill provisions (as determined by DHT after consultation with its outside counsel) and (y) participate in negotiations regarding such Acquisition Proposal ("Permitted Actions"). Notwithstanding the foregoing, the Board of Directors shall not take any Permitted Actions unless the Company provides Acquiror with reasonable advance notice thereoffor DHT.
(b) Except as permitted by this Section 6.3(b), neither Neither the Board of Directors of the Company, the Special Committee DHT nor any committee thereof shall amend(i) withdraw, or propose publicly to withdraw, in a manner adverse to Cerner, the approval or recommendation by such Board of Directors or such committee of the Merger or this Agreement, (ii) subject to Section 6.2(d), modify, changeor propose publicly to modify, condition or qualify in any a manner adverse to AcquirorCerner, the Company Recommendation (it being understood and agreed that a communication approval or recommendation by the such Board of Directors or such committee of the Company Merger or the Special Committee to the Company Stockholders pursuant to Rule 14d-9(f) of the Exchange Act, or any similar communication to the Company Stockholders in connection with the making or amendment of a tender offer or exchange offer, shall not be deemed to constitute a withdrawal, modification, amendment, condition or qualification of the Company Recommendation for all purposes of this Agreement, including this Section 6.3 and Section 10.1(e)). Notwithstanding the foregoing(iii) approve or recommend, in the event that the Board of Directors of the Company or the Special Committee takes the actions set forth in Section 6.3(e)propose publicly to approve or recommend, the Board of Directors of the Company any Acquisition Proposal for DHT or the Special Committee may (i) withdraw or modify in any manner adverse to Acquiror, the Company Recommendation and (iiiv) approve or recommend, or propose to approve or recommend, or execute or enter into, any Acquisition Proposal.
(c) Unless letter of intent, agreement in principle, merger agreement, acquisition agreement, option agreement or other similar agreement or propose publicly or agree to do any of the Company's Board of Directors or the Special Committee has previously withdrawn, or is concurrently therewith withdrawing, the Company Recommendation in accordance with this Section 6.3, neither the Company's Board of Directors nor any committee thereof shall recommend foregoing related to any Acquisition Proposal to the Company Stockholdersfor DHT. Notwithstanding the foregoing, nothing contained in this Section 6.3(c) or elsewhere in this Agreement shall prevent the Company's Board if at any time prior to receipt of Directors or the Special Committee from complying with Rule 14e-2 under the Exchange Act with respect to any Acquisition Proposal or making any disclosure required by or otherwise complying with applicable Law.
(d) The Company shall notify Acquiror promptly (but in no event later than the next Business Day) after receipt by the Company of any Acquisition Proposal or any request for information relating to the Company or any of its Subsidiaries in connection with an Acquisition Proposal or for access to the properties, books or records of the Company or any of its Subsidiaries or any request for a waiver or release under any standstill or similar agreement, by any Person that informs DHT Shareholder Approval the Board of Directors of the Company or such Subsidiary DHT determines in good faith, after receipt of written opinions from outside counsel and independent financial advisor of DHT, that it is considering makinghas received an Acquisition Proposal for DHT that constitutes a Superior Proposal which did not result from a breach of this Section 6.2 and that failure to do one of the following could reasonably be expected to be a breach of its fiduciary duties to DHT's shareholders under applicable Florida Law, the Board of Directors of DHT may (subject to this and the following sentences) (x) withdraw or modify its approval or recommendation of the Merger and this Agreement, (y) approve or recommend the Superior Proposal (as defined below), or has made an Acquisition Proposal; provided(z) terminate this Agreement and concurrently with or after such termination, howeverif it so chooses, that prior cause DHT to participating in any discussions or negotiations or furnishing any such information, the Company shall receive from such Person an executed confidentiality agreement on terms that are not materially less favorable to the Company than the Confidentiality Agreement. The notice shall indicate the terms and conditions of the proposal or request and the identity of the Person making it, and the Company will promptly notify Acquiror of any material modification of or material amendment to enter into any Acquisition Proposal (and the terms of such modification or amendment); provided, however, that, without limiting what changes may be material, any change in the consideration to be paid Agreement with respect to the Acquisition Proposal shall be deemed to be a material modification or a material amendment. The Company shall keep Acquiror informedSuperior Proposal, on a reasonably current basis, but in each of the status cases set forth in clause (x), (y) or (z), only at a time prior to receipt of any negotiations, discussions the DHT Shareholder Approval and documents with respect to such Acquisition Proposal or request.
(e) Holding, Acquiror or only at a time that is after the Company may terminate this Agreement, if tenth business day following Cerner's receipt of written notice advising Cerner that the Company's Board of Directors or the Special Committee, after consultation with its financial and legal advisors, shall have determined (i) to approve or recommend an Acquisition Proposal after concluding that the Acquisition Proposal constitutes of DHT has received a Superior Proposal and (ii) to enter into a binding agreement concerning the Acquisition Proposal; provided, however, that the Company may not exercise its right to terminate under this Section 6.3(e), unless (1) the Company shall have provided to Acquiror at least three (3) Business Days' prior written notice that its Board of Directors or the Special Committee has authorized the termination and intends to terminate this Agreement pursuant to this Section 6.3(e), specifying the material terms and conditions of such Superior Proposal and identifying the Acquisition person making such Superior Proposal; provided, and (2) Acquiror does not make, within three (3) Business Days of delivery that in each of the notice, an offer such that a majority of the disinterested members of the Company's Board of Directors or the Special Committee determines that the foregoing Acquisition Proposal no longer constitutes a Superior Proposal. In connection with the forgoing, the Company agrees that it will not enter into an agreement which binds the Company with respect to such an Acquisition Proposal unless cases set forth in clause (x) the Company simultaneously delivers to Acquiror the notice contemplated by the foregoing proviso), (y) or (z), DHT shall pay to Cerner the fee provided for in Section 9.3(a) of this Agreement prior to the Board of Directors of DHT taking any of the actions described in such agreement is clauses; provided, however, that if the Board of Directors of DHT determines in good faith that DHT's financial inability to pay the fee provided for in Section 9.3(a) of this Agreement prior to the Board of Directors of DHT taking any of the actions described in such clauses could reasonably be expected to result in a breach of its fiduciary duties to DHT's shareholders under applicable Florida Law, then DHT shall not binding be required to pay Cerner the fee provided for in Section 9.3(a) prior to taking the actions described in such clauses, but shall deliver to Cerner prior to taking such actions a promissory note, in a form reasonably acceptable to Cerner, in the original principal amount of Two Million Dollars ($2,000,000.00), payable on the Company until three earlier of (31) Business Days six (6) months after delivery the date of the notice promissory note, or (2) the date upon which the transactions contemplated by a Superior Proposal are consummated. Any such withdrawal or modification of the recommendation of the Merger and this Agreement and the transactions contemplated hereby shall not change the approval of the Board of Directors of DHT for purposes of causing Section 607.0902 of the Florida Law to be inapplicable to the Merger and this Agreement and the transactions contemplated hereby. For all purposes of this Agreement, a "Superior Proposal" means any bona fide proposal made by a third party to acquire, directly or indirectly, for consideration consisting of cash and/or securities, 100% of the DHT Securities then outstanding (whether pursuant to a tender or exchange offer, merger, consolidation, share exchange, or other business combination) or all or substantially all the assets of DHT and otherwise on terms which the Board of Directors of DHT determines in its good faith judgment (based on a written opinion of DHT's financial advisor) to be materially more favorable to DHT and its shareholders than the Merger (taking into account any changes to the financial and other contractual terms of this Agreement proposed by Cerner in response to such proposal, the Person making the proposal, any legal or regulatory considerations and all other relevant financial and strategic considerations, including the timing of the consummation of such transactions) and for which financing, to the extent required, is then committed or which, in the good faith judgment of the Board of Directors of DHT, is reasonably capable of being obtained by such third party.
(c) In addition to the obligations of DHT set forth in this Section 6.3(e6.2(a) and (z) the Company has the right under such agreement to unilaterally terminate such agreement prior to the termination of this Agreement without any payment or other liability or obligation Agreement, DHT shall immediately advise Cerner orally and in writing of any kindrequest for information or of any Acquisition Proposal for DHT, the material terms and conditions of such request or Acquisition Proposal for DHT and the identity of the person making such request or Acquisition Proposal for DHT. DHT will keep Cerner fully informed of the status and details (including amendments or proposed amendments) of any such request or Acquisition Proposal for DHT.
(fd) The Company shall immediately ceaseNothing contained in this Section 6.2, and subject to the payment of a termination fee if and to the extent required by Section 9.3(a), shall cause prohibit DHT from taking and disclosing to its shareholders a position contemplated by Rule 14d-9 and 14e-2(a) promulgated under the Exchange Act or from making any party acting on disclosure to DHT's shareholders if, in the good faith judgment of the Board of Directors of DHT, after consultation with outside counsel, failure so to disclose would be inconsistent with its behalf fiduciary duties to ceaseDHT's shareholders under applicable Law; provided, and cause however, neither DHT nor its Board of Directors nor any committee thereof shall, except as permitted by Section 6.2(b), withdraw or modify, or propose publicly to be terminated any existing discussions withdraw or negotiations with any Third Party conducted heretofore modify, its position with respect to any of the foregoing and shall request any such parties in possession of confidential information about the Company Merger or its Subsidiaries that was furnished by this Agreement or on behalf of the Company approve or its Subsidiaries recommend, or propose publicly to return approve or destroy all such information in the possession of any such party or the agent or advisor of any such partyrecommend, an Acquisition Proposal for DHT.
Appears in 1 contract
Sources: Merger Agreement (Maxwell Bret R)
Acquisition Proposals; Board Recommendation. (a) The Company Each of ▇▇▇▇▇▇▇ and Cardiac agrees that it shall not, nor shall it permit any Company Subsidiary of its Subsidiaries to, nor shall it authorize or knowingly permit any officer, director, employee, investment banker, attorney, accountant, agent or other advisor or representative of the Company such party or any Company Subsidiaryof its Subsidiaries, directly or indirectly, to (i) solicit take any action to solicit, initiate or initiate facilitate or encourage the submission of any Acquisition Proposal, (ii) participate engage in any discussions or negotiations regarding, or furnish to any Person any non-public information with respect to, or take any other action knowingly to facilitate any inquiries or the making of any proposal that constitutes constitutes, or that would may be reasonably be expected to lead to to, any Acquisition Proposal, (iii) grant any waiver or release under any standstill or similar agreement with respect to any class of the Companysuch party's equity securities or (iv) other than in the manner contemplated by Section 7.4(d), enter into any agreement with respect to any Acquisition Proposal; provided, however, that if each of ▇▇▇▇▇▇▇ and Cardiac may take any actions described in the Company receives foregoing clauses (i), (ii), (iii), or (iv) in respect of any Person who makes an unsolicited Acquisition Proposal from a Third Party that the CompanyProposal, but only if (x) such party's Board of Directors or the Special Committee Directors, after consultation with its investment advisors and outside legal counsel, determines in its good faith is judgment that either (A) such Acquisition Proposal constitutes a Superior Proposal and provides written notice of termination of this Agreement in accordance with Section 7.4(d) and Section 10.1, or (B) such Acquisition Proposal could reasonably be expected to lead result in a Superior Proposal, and (y) prior to furnishing any non-public information to such Person, such Person shall have entered into a confidentiality agreement with ▇▇▇▇▇▇▇ or Cardiac, as the case may be, on terms no less favorable to the delivery of a Superior Proposal from that Third Party, such party than the Company may, subject to compliance with the other provisions of this Section 6.3, furnish information to, and engage in discussions and negotiations with, such Third Party with respect to its Acquisition Proposal ("Permitted Actions"). Notwithstanding the foregoing, the Board of Directors shall not take any Permitted Actions unless the Company provides Acquiror with reasonable advance notice thereof.
(b) Except as permitted by this Section 6.3(b), neither the Board of Directors terms of the CompanyMutual Non-Disclosure Agreement, the Special Committee nor dated July 7, 2004, between ▇▇▇▇▇▇▇ and Cardiac, agreeing to keep confidential any committee thereof shall amend, withdraw, modify, change, condition or qualify in any manner adverse to Acquiror, the Company Recommendation (it being understood and agreed that a communication by the Board of Directors of the Company or the Special Committee non-public information received. In addition to the Company Stockholders pursuant to Rule 14d-9(f) of the Exchange Act, or any similar communication to the Company Stockholders in connection with the making or amendment of a tender offer or exchange offer, shall not be deemed to constitute a withdrawal, modification, amendment, condition or qualification of the Company Recommendation for all purposes of this Agreement, including this Section 6.3 and Section 10.1(e)). Notwithstanding the foregoing, in the event that the Board of Directors of the Company or the Special Committee takes the actions set forth in Section 6.3(e)foregoing requirements, the Board of Directors of such party shall be prohibited from taking such actions with respect to an Acquisition Proposal unless the Company or Board of Directors determines, after consulting with its outside legal counsel, that the Special Committee may failure to do so would be inconsistent with its fiduciary duties under the DGCL. In addition to the foregoing, such party shall (i) withdraw provide the other party with at least forty-eight (48) hours prior notice (or modify in such lesser prior notice as provided to the members of such party's Board of Directors) of any manner adverse meeting of such party's Board of Directors at which such party's Board of Directors is reasonably expected to Acquiror, the Company Recommendation consider an Acquisition Proposal and (ii) approve or recommend, or propose provide the other party with the same prior written notice of a meeting of such party's Board of Directors at which such party's Board of Directors is reasonably expected to approve or recommend, any Acquisition recommend a Superior Proposal to its stockholders as is provided to such party's Board of Directors together with a copy of the definitive documentation relating to such Superior Proposal.
(cb) Unless the Company's Board of Directors or the Special Committee has previously withdrawn, or is concurrently therewith withdrawing, the Company Recommendation in accordance with Until this Agreement shall have been terminated pursuant to Section 6.37.4(d), neither the Companyparty's Board of Directors nor any committee thereof shall recommend any Acquisition Proposal to the Company Stockholderssuch party's stockholders. Notwithstanding the foregoing, nothing contained in this Section 6.3(c7.4(b) or elsewhere in this Agreement shall prevent the Companyeither party's Board of Directors or the Special Committee from (i) complying with Rule 14d-9 and Rule 14e-2 under the Exchange Act with respect to any Acquisition Proposal or making any disclosure required by applicable Law or otherwise complying (ii) withdrawing the ▇▇▇▇▇▇▇ Recommendation or Cardiac Recommendation, as the case may be, if, after consulting with applicable Lawits outside legal counsel, the failure to do so would be inconsistent with its fiduciary duties under the DGCL.
(dc) The Company shall notify Acquiror promptly Promptly (but in no event later than the next Business Dayforty-eight (48) hours) after receipt by the Company of any Acquisition Proposal or any request for information relating to the Company either party or any of its Subsidiaries in connection with an (or any of their respective directors, officers, agents or advisors) of any Acquisition Proposal Proposal, any request for non-public information or for access to the properties, books or records of the Company such party or any of its Subsidiaries or any request for a waiver or release under any standstill or similar agreement, by any Person that informs the Board of Directors of the Company has made an Acquisition Proposal or such Subsidiary indicates that it is considering making, or has made making an Acquisition Proposal; provided, howeversuch party shall notify the other party (x) that a Person may be considering making an Acquisition Proposal, that prior to participating in any discussions or negotiations or furnishing and (y) of the identity of such Person and, if an Acquisition Proposal is made, of the material terms of such Acquisition Proposal. Each party shall keep the other party reasonably informed of the status and material terms of any such informationAcquisition Proposal.
(d) Upon notice and in accordance with the terms of Section 10.1, and subject to Section 10.4(c), either party may terminate this Agreement at any time before the Company ▇▇▇▇▇▇▇ Stockholder Approval or Cardiac Stockholder Approval, as applicable, is obtained if (i) such party's Board of Directors shall receive from have authorized such Person an executed confidentiality agreement on terms that are not materially less favorable party, subject to the Company than the Confidentiality Agreement. The notice shall indicate the terms and conditions of the proposal or request and the identity of the Person making it, and the Company will promptly notify Acquiror of any material modification of or material amendment to any Acquisition Proposal (and the terms of such modification or amendment); provided, however, that, without limiting what changes may be material, any change in the consideration to be paid with respect to the Acquisition Proposal shall be deemed to be a material modification or a material amendment. The Company shall keep Acquiror informed, on a reasonably current basis, of the status of any negotiations, discussions and documents with respect to such Acquisition Proposal or request.
(e) Holding, Acquiror or the Company may terminate this Agreement, if the Company's Board of Directors or the Special Committee, after consultation with its financial and legal advisors, shall have determined (i) to approve or recommend an Acquisition Proposal after concluding that the Acquisition Proposal constitutes a Superior Proposal and (ii) to enter into a binding agreement concerning a transaction that constitutes a Superior Proposal, (ii) such party notifies the Acquisition Proposal; provided, however, other party that the Company may not exercise its right to terminate under this Section 6.3(e), unless (1) the Company shall have provided to Acquiror at least three (3) Business Days' prior written notice that its Board of Directors or the Special Committee has authorized the termination and it intends to terminate this Agreement pursuant to this Section 6.3(e)enter into such agreement, specifying the material terms and conditions of the Acquisition Proposalsuch agreement, and (2iii) Acquiror does not make, within three (3) five Business Days of delivery receiving the notice described in (ii) above, the other party fails to propose and agree to enter into a modification of the noticethis Agreement or, an offer after proposing to enter into a modification to this Agreement within such that a majority of the disinterested members of the Companyfive Business Day period, such party's Board of Directors or the Special Committee determines by a majority vote in its good faith judgment, after consultation with its investment advisors and outside legal counsel, that the foregoing such Acquisition Proposal no longer constitutes previously determined to constitute a Superior Proposal continues to be a Superior Proposal. In connection with the forgoing, the Company agrees that it will not enter into an agreement which binds the Company with respect to such an Acquisition Proposal unless (x) the Company simultaneously delivers to Acquiror the notice contemplated by the foregoing proviso, (y) such agreement is not binding on the Company until three (3) Business Days after delivery of the notice set forth in this Section 6.3(e) and (z) the Company has the right under such agreement to unilaterally terminate such agreement prior to the termination of this Agreement without any payment or other liability or obligation of any kind.
(f) The Company shall immediately cease, and shall cause any party acting on its behalf to cease, and cause to be terminated any existing discussions or negotiations with any Third Party conducted heretofore with respect to any of the foregoing and shall request any such parties in possession of confidential information about the Company or its Subsidiaries that was furnished by or on behalf of the Company or its Subsidiaries to return or destroy all such information in the possession of any such party or the agent or advisor of any such party.
Appears in 1 contract
Acquisition Proposals; Board Recommendation. (a) The Company DHT agrees that it shall not, nor shall it permit any Company Subsidiary to, nor shall it authorize or knowingly permit any officer, director, employee, investment banker, attorney, accountant, agent or other advisor or representative of the Company or any Company SubsidiaryDHT, directly or indirectly, to (i) solicit solicit, initiate or initiate knowingly facilitate or encourage the submission of any Acquisition ProposalProposal for DHT, (ii) participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to, or take any other action knowingly to facilitate any inquiries or the making of any proposal that constitutes or that would reasonably be expected to lead to any an Acquisition ProposalProposal for DHT, (iii) grant any waiver or release under any standstill or similar agreement with respect to any class of the Company's DHT equity securities or (iv) enter into any agreement with respect to any Acquisition ProposalProposal for DHT; provided, however, that if if, at any time prior to receipt of the Company receives an unsolicited Acquisition Proposal from a Third Party that the CompanyDHT Shareholder Approval, DHT's Board of Directors or the Special Committee reasonably determines in good faith is or faith, after receipt of written advice from outside counsel and independent financial advisor of DHT, that failing to take such action could reasonably be expected to be a breach of its fiduciary duties to DHT's shareholders under applicable law, DHT may, in response to an Acquisition Proposal for DHT made after the date of this Agreement which was not solicited by DHT or its representatives or agents and which did not otherwise result from a breach of this Section 6.2, and which is reasonably likely to lead to the delivery of a Superior Proposal from that Third PartyProposal, the Company may, and subject to compliance with the other provisions of this Section 6.3, 6.2(c) (x) furnish information to, and engage in discussions and negotiations with, such Third Party with respect to DHT to any person pursuant to a customary confidentiality agreement including customary standstill provisions (as determined by DHT after consultation with its outside counsel) and (y) participate in negotiations regarding such Acquisition Proposal ("Permitted Actions"). Notwithstanding the foregoing, the Board of Directors shall not take any Permitted Actions unless the Company provides Acquiror with reasonable advance notice thereoffor DHT.
(b) Except as permitted by this Section 6.3(b), neither Neither the Board of Directors of the Company, the Special Committee DHT nor any committee thereof shall amend(i) withdraw, or propose publicly to withdraw, in a manner adverse to Cerner, the approval or recommendation by such Board of Directors or such committee of the Merger or this Agreement, (ii) subject to Section 6.2(d), modify, changeor propose publicly to modify, condition or qualify in any a manner adverse to AcquirorCerner, the Company Recommendation (it being understood and agreed that a communication approval or recommendation by the such Board of Directors or such committee of the Company Merger or the Special Committee to the Company Stockholders pursuant to Rule 14d-9(f) of the Exchange Act, or any similar communication to the Company Stockholders in connection with the making or amendment of a tender offer or exchange offer, shall not be deemed to constitute a withdrawal, modification, amendment, condition or qualification of the Company Recommendation for all purposes of this Agreement, including this Section 6.3 and Section 10.1(e)). Notwithstanding the foregoing(iii) approve or recommend, in the event that the Board of Directors of the Company or the Special Committee takes the actions set forth in Section 6.3(e)propose publicly to approve or recommend, the Board of Directors of the Company any Acquisition Proposal for DHT or the Special Committee may (i) withdraw or modify in any manner adverse to Acquiror, the Company Recommendation and (iiiv) approve or recommend, or propose to approve or recommend, or execute or enter into, any Acquisition Proposal.
(c) Unless the Company's Board letter of Directors intent, agreement in principle, merger agreement, acquisition agreement, option agreement or the Special Committee has previously withdrawn, other similar agreement or is concurrently therewith withdrawing, the Company Recommendation in accordance with this Section 6.3, neither the Company's Board of Directors nor any committee thereof shall recommend any Acquisition Proposal propose publicly or agree to the Company Stockholders. Notwithstanding the foregoing, nothing contained in this Section 6.3(c) or elsewhere in this Agreement shall prevent the Company's Board of Directors or the Special Committee from complying with Rule 14e-2 under the Exchange Act with respect to any Acquisition Proposal or making any disclosure required by or otherwise complying with applicable Law.
(d) The Company shall notify Acquiror promptly (but in no event later than the next Business Day) after receipt by the Company of any Acquisition Proposal or any request for information relating to the Company or do any of its Subsidiaries in connection with an Acquisition Proposal or for access to the properties, books or records of the Company or any of its Subsidiaries or any request for a waiver or release under any standstill or similar agreement, by any Person that informs the Board of Directors of the Company or such Subsidiary that it is considering making, or has made an Acquisition Proposal; provided, however, that prior to participating in any discussions or negotiations or furnishing any such information, the Company shall receive from such Person an executed confidentiality agreement on terms that are not materially less favorable to the Company than the Confidentiality Agreement. The notice shall indicate the terms and conditions of the proposal or request and the identity of the Person making it, and the Company will promptly notify Acquiror of any material modification of or material amendment to any Acquisition Proposal (and the terms of such modification or amendment); provided, however, that, without limiting what changes may be material, any change in the consideration to be paid with respect to the Acquisition Proposal shall be deemed to be a material modification or a material amendment. The Company shall keep Acquiror informed, on a reasonably current basis, of the status of any negotiations, discussions and documents with respect to such Acquisition Proposal or request.
(e) Holding, Acquiror or the Company may terminate this Agreement, if the Company's Board of Directors or the Special Committee, after consultation with its financial and legal advisors, shall have determined (i) to approve or recommend an Acquisition Proposal after concluding that the Acquisition Proposal constitutes a Superior Proposal and (ii) to enter into a binding agreement concerning the Acquisition Proposal; provided, however, that the Company may not exercise its right to terminate under this Section 6.3(e), unless (1) the Company shall have provided to Acquiror at least three (3) Business Days' prior written notice that its Board of Directors or the Special Committee has authorized the termination and intends to terminate this Agreement pursuant to this Section 6.3(e), specifying the material terms and conditions of the Acquisition Proposal, and (2) Acquiror does not make, within three (3) Business Days of delivery of the notice, an offer such that a majority of the disinterested members of the Company's Board of Directors or the Special Committee determines that the foregoing Acquisition Proposal no longer constitutes a Superior Proposal. In connection with the forgoing, the Company agrees that it will not enter into an agreement which binds the Company with respect to such an Acquisition Proposal unless (x) the Company simultaneously delivers to Acquiror the notice contemplated by the foregoing proviso, (y) such agreement is not binding on the Company until three (3) Business Days after delivery of the notice set forth in this Section 6.3(e) and (z) the Company has the right under such agreement to unilaterally terminate such agreement prior to the termination of this Agreement without any payment or other liability or obligation of any kind.
(f) The Company shall immediately cease, and shall cause any party acting on its behalf to cease, and cause to be terminated any existing discussions or negotiations with any Third Party conducted heretofore with respect to any of the foregoing and shall request any such parties in possession of confidential information about the Company or its Subsidiaries that was furnished by or on behalf of the Company or its Subsidiaries to return or destroy all such information in the possession of any such party or the agent or advisor of any such party.the
Appears in 1 contract
Sources: Merger Agreement (Dynamic Healthcare Technologies Inc)
Acquisition Proposals; Board Recommendation. (a) The Company agrees that it shall not, nor shall it permit any Company Subsidiary of its Subsidiaries to, nor shall it authorize or knowingly permit any officer, director, employee, investment banker, attorney, accountant, agent or other advisor or representative of the Company or any Company Subsidiaryof its Subsidiaries, directly or indirectly, to (i) solicit take any action to solicit, initiate or initiate facilitate or encourage the submission of any Acquisition Proposal, (ii) participate engage in any discussions or negotiations regarding, or furnish to any Person any non-public information with respect to, or take any other action knowingly to facilitate any inquiries or the making of any proposal that constitutes constitutes, or that would may be reasonably be expected to lead to to, any Acquisition Proposal, (iii) grant any waiver or release under any standstill or similar agreement with respect to any class of the Company's equity securities or (iv) other than in the manner contemplated by Section 6.3(d), enter into any agreement with respect to any Acquisition Proposal; provided, however, that if the Company receives an unsolicited Acquisition Proposal from a Third Party that the Company's Board of Directors or the Special Committee determines in good faith is or could reasonably be expected to lead to the delivery of a Superior Proposal from that Third Party, the Company may, subject to compliance with the other provisions of this Section 6.3, furnish information to, and engage in discussions and negotiations with, such Third Party with respect to its Acquisition Proposal ("Permitted Actions"). Notwithstanding the foregoing, the Board of Directors shall not may take any Permitted Actions unless actions described in the Company provides Acquiror with reasonable advance notice thereof.
foregoing clauses (b) Except as permitted by this Section 6.3(bi), neither the Board (ii), (iii), or (iv) in respect of Directors of the Companyany Person who makes an Acquisition Proposal, the Special Committee nor any committee thereof shall amend, withdraw, modify, change, condition or qualify in any manner adverse to Acquiror, the Company Recommendation but only if (it being understood and agreed that a communication by x) the Board of Directors of the Company by a majority vote determines in its good faith judgment that either (A) such Acquisition Proposal constitutes a Superior Proposal and provides written notice of termination of this Agreement in accordance with Section 6.3(d) and Section 10.1, or (B) such Acquisition Proposal could reasonably be expected to result in a Superior Proposal, and (y) prior to furnishing any non-public information to such Person, such Person shall have entered into a confidentiality agreement with the Special Committee Company on terms no less favorable to the Company Stockholders pursuant to Rule 14d-9(f) of than the Exchange Act, or any similar communication to Confidentiality Agreement between the Company Stockholders in connection with and Fidelity dated as of June 24, 1999 (the making or amendment of a tender offer or exchange offer, shall not be deemed to constitute a withdrawal, modification, amendment, condition or qualification of the Company Recommendation for all purposes of this "Confidentiality Agreement, including this Section 6.3 and Section 10.1(e")). Notwithstanding the foregoing, in the event that the Board of Directors of the Company or the Special Committee takes the actions set forth in Section 6.3(e), the Board of Directors of the Company or the Special Committee may (i) withdraw or modify in any manner adverse to Acquiror, the Company Recommendation and (ii) approve or recommend, or propose to approve or recommend, any Acquisition Proposal.
(cb) Unless the Company's Board of Directors or the Special Committee has previously withdrawn, or is concurrently therewith withdrawing, the Company Recommendation in accordance with this Section 6.3Recommendation, neither the Company's Board of Directors nor any committee thereof shall recommend any Acquisition Proposal to the Company Stockholdersstockholders. Notwithstanding the foregoing, nothing contained in this Section 6.3(c6.3(b) or elsewhere in this Agreement shall prevent the Company's Board of Directors or the Special Committee from complying with Rule 14e-2 under the Exchange Act with respect to any Acquisition Proposal or making any disclosure required by or otherwise complying with applicable Lawlaw.
(dc) The Company shall notify Acquiror promptly Promptly (but in no event later than the next Business Day48 hours) after receipt by the Company of any Acquisition Proposal or any request for information relating to the Company or any of its Subsidiaries in connection with an (or any of their respective directors, officers, agents or advisors) of any Acquisition Proposal Proposal, any contacts concerning, or any request for non-public information or for access to the properties, books or records of the Company or any of its Subsidiaries or any request for a waiver or release under any standstill or similar agreement, by any Person that informs the Board of Directors of the Company has made an Acquisition Proposal or such Subsidiary indicates that it is considering making, or has made making an Acquisition Proposal; provided, however, that prior to participating in any discussions or negotiations or furnishing any such information, the Company shall receive from such notify Fidelity (x) that a Person may be considering making an executed confidentiality agreement on terms that are not materially less favorable to the Company than the Confidentiality Agreement. The notice shall indicate the terms Acquisition Proposal, and conditions (y) of the proposal or request and the identity of the such Person making itand, and the Company will promptly notify Acquiror of any material modification of or material amendment to any if an Acquisition Proposal (and is made, of the material terms of such modification or amendment); provided, however, that, without limiting what changes may be material, any change in the consideration to be paid with respect to the Acquisition Proposal shall be deemed to be a material modification or a material amendmentProposal. The Company shall keep Acquiror informed, on a Fidelity reasonably current basis, informed of the status and material terms of any negotiations, discussions and documents with respect to such Acquisition Proposal or requestProposal.
(ed) HoldingUpon notice and in accordance with the terms of Section 10.1, Acquiror or the Company may terminate this Agreement, Agreement at any time before the Company Stockholder Approval is obtained if (w) the Company's Board of Directors or the Special Committee, after consultation with its financial and legal advisors, shall have determined (i) authorized the Company, subject to approve or recommend an Acquisition Proposal after concluding that the Acquisition Proposal constitutes a Superior Proposal terms and (ii) conditions of this Agreement, to enter into a binding agreement concerning the Acquisition a transaction that constitutes a Superior Proposal; provided, however, that the Company may not exercise its right to terminate under this Section 6.3(e), unless (1x) the Company shall have provided to Acquiror at least three (3) Business Days' prior written notice notifies Fidelity that its Board of Directors or the Special Committee has authorized the termination and it intends to terminate this Agreement pursuant to this Section 6.3(e)enter into such agreement, specifying the material terms and conditions of the Acquisition Proposal, and (2) Acquiror does not make, within three (3) Business Days of delivery of the notice, an offer such that a majority of the disinterested members of the Company's Board of Directors or the Special Committee determines that the foregoing Acquisition Proposal no longer constitutes a Superior Proposal. In connection with the forgoing, the Company agrees that it will not enter into an agreement which binds the Company with respect to such an Acquisition Proposal unless (x) the Company simultaneously delivers to Acquiror the notice contemplated by the foregoing provisoagreement, (y) within three Business Days of receiving the notice described in (x) above, Fidelity fails to propose and agree to enter into a modification of this Agreement such agreement is not binding on that the Board of Directors of the Company until three (3) Business Days after delivery of the notice set forth determines by a majority vote in this Section 6.3(e) its good faith judgment that such Superior Proposal is no longer a Superior Proposal and (z) the Company has pays Fidelity the right under such agreement to unilaterally terminate such agreement prior to the termination of this Agreement without any payment or other liability or obligation of any kindfee contemplated by Section 10.3(b).
(f) The Company shall immediately cease, and shall cause any party acting on its behalf to cease, and cause to be terminated any existing discussions or negotiations with any Third Party conducted heretofore with respect to any of the foregoing and shall request any such parties in possession of confidential information about the Company or its Subsidiaries that was furnished by or on behalf of the Company or its Subsidiaries to return or destroy all such information in the possession of any such party or the agent or advisor of any such party.
Appears in 1 contract
Sources: Merger Agreement (Fidelity National Financial Inc /De/)
Acquisition Proposals; Board Recommendation. (a) The Company ANFI agrees that it shall not, nor shall it permit any Company Subsidiary of its Subsidiaries to, nor shall it authorize or knowingly permit any officer, director, employee, investment banker, attorney, accountant, agent or other advisor or representative of the Company ANFI or any Company Subsidiaryof its Subsidiaries, directly or indirectly, to (i) solicit take any action to solicit, initiate or initiate facilitate or encourage the submission of any Acquisition Proposal, (ii) participate engage in any discussions or negotiations regarding, or furnish to any Person any non-public information with respect to, or take any other action knowingly to facilitate any inquiries or the making of any proposal that constitutes constitutes, or that would may be reasonably be expected to lead to to, any Acquisition Proposal, (iii) grant any waiver or release under any standstill or similar agreement with respect to any class of the CompanyANFI's equity securities or (iv) other than in the manner contemplated by Section 6.3(d), enter into any agreement with respect to any Acquisition Proposal; provided, however, that ANFI may take any actions described in the foregoing clauses (i), (ii), (iii), or (iv) in respect of any Person who makes an Acquisition Proposal, but only if (x) the Company receives an unsolicited Acquisition Proposal from a Third Party that the Company's Board of Directors or the Special Committee of ANFI by a majority vote determines in its good faith is judgment that either (A) such Acquisition Proposal constitutes a Superior Proposal and provides written notice of termination of this Agreement in accordance with Section 6.3(d) and Section 10.1, or (B) such Acquisition Proposal could reasonably be expected to lead to the delivery of result in a Superior Proposal from that Third Party, the Company may, subject to compliance with the other provisions of this Section 6.3, furnish information toProposal, and engage in discussions and negotiations with(y) prior to furnishing any non-public information to such Person, such Third Party Person shall have entered into a confidentiality agreement with respect ANFI agreeing to its Acquisition Proposal ("Permitted Actions"). Notwithstanding the foregoing, the Board of Directors shall not take keep confidential any Permitted Actions unless the Company provides Acquiror with reasonable advance notice thereofnon-public information received.
(b) Except as permitted by Until this Agreement shall have been terminated pursuant to Section 6.3(b6.3(d), neither the Board of Directors of the Company, the Special Committee nor any committee thereof shall amend, withdraw, modify, change, condition or qualify in any manner adverse to Acquiror, the Company Recommendation (it being understood and agreed that a communication by the Board of Directors of the Company or the Special Committee to the Company Stockholders pursuant to Rule 14d-9(f) of the Exchange Act, or any similar communication to the Company Stockholders in connection with the making or amendment of a tender offer or exchange offer, shall not be deemed to constitute a withdrawal, modification, amendment, condition or qualification of the Company Recommendation for all purposes of this Agreement, including this Section 6.3 and Section 10.1(e)). Notwithstanding the foregoing, in the event that the Board of Directors of the Company or the Special Committee takes the actions set forth in Section 6.3(e), the Board of Directors of the Company or the Special Committee may (i) withdraw or modify in any manner adverse to Acquiror, the Company Recommendation and (ii) approve or recommend, or propose to approve or recommend, any Acquisition Proposal.
(c) Unless the Company's Board of Directors or the Special Committee has previously withdrawn, or is concurrently therewith withdrawing, the Company Recommendation in accordance with this Section 6.3, neither the CompanyANFI's Board of Directors nor any committee thereof shall recommend any Acquisition Proposal to the Company StockholdersANFI's shareholders. Notwithstanding the foregoing, nothing contained in this Section 6.3(c6.3(b) or elsewhere in this Agreement shall prevent the CompanyANFI's Board of Directors or the Special Committee from complying with Rule 14e-2 under the Exchange Act with respect to any Acquisition Proposal or making any disclosure required by or otherwise complying with applicable Lawlaw.
(dc) The Company shall notify Acquiror promptly Promptly (but in no event later than the next Business Day48 hours) after receipt by the Company of any Acquisition Proposal or any request for information relating to the Company ANFI or any of its Subsidiaries in connection with an (or any of their respective directors, officers, agents or advisors) of any Acquisition Proposal Proposal, any request for non-public information or for access to the properties, books or records of the Company ANFI or any of its Subsidiaries or any request for a waiver or release under any standstill or similar agreement, by any Person that informs the Board of Directors of the Company has made an Acquisition Proposal or such Subsidiary indicates that it is considering making, or has made making an Acquisition Proposal; provided, howeverANFI shall notify FNF (x) that a Person may be considering making an Acquisition Proposal, that prior to participating in any discussions or negotiations or furnishing and (y) of the identity of such Person and, if an Acquisition Proposal is made, of the material terms of such Acquisition Proposal. ANFI shall keep FNF reasonably informed of the status and material terms of any such informationAcquisition Proposal.
(d) Upon notice and in accordance with the terms of Section 10.1, ANFI may terminate this Agreement at any time before the Company ANFI Shareholder Approval is obtained if (x) ANFI's Board of Directors shall receive from such Person an executed confidentiality agreement on terms that are not materially less favorable have authorized ANFI, subject to the Company than the Confidentiality Agreement. The notice shall indicate the terms and conditions of the proposal or request and the identity of the Person making it, and the Company will promptly notify Acquiror of any material modification of or material amendment to any Acquisition Proposal (and the terms of such modification or amendment); provided, however, that, without limiting what changes may be material, any change in the consideration to be paid with respect to the Acquisition Proposal shall be deemed to be a material modification or a material amendment. The Company shall keep Acquiror informed, on a reasonably current basis, of the status of any negotiations, discussions and documents with respect to such Acquisition Proposal or request.
(e) Holding, Acquiror or the Company may terminate this Agreement, if the Company's Board of Directors or the Special Committee, after consultation with its financial and legal advisors, shall have determined (i) to approve or recommend an Acquisition Proposal after concluding that the Acquisition Proposal constitutes a Superior Proposal and (ii) to enter into a binding agreement concerning the Acquisition a transaction that constitutes a Superior Proposal; provided, however, (y) ANFI notifies FNF that the Company may not exercise its right to terminate under this Section 6.3(e), unless (1) the Company shall have provided to Acquiror at least three (3) Business Days' prior written notice that its Board of Directors or the Special Committee has authorized the termination and it intends to terminate this Agreement pursuant to this Section 6.3(e)enter into such agreement, specifying the material terms and conditions of the Acquisition Proposalsuch agreement, and (2) Acquiror does not make, within three (3) Business Days of delivery of the notice, an offer such that a majority of the disinterested members of the Company's Board of Directors or the Special Committee determines that the foregoing Acquisition Proposal no longer constitutes a Superior Proposal. In connection with the forgoing, the Company agrees that it will not enter into an agreement which binds the Company with respect to such an Acquisition Proposal unless (x) the Company simultaneously delivers to Acquiror the notice contemplated by the foregoing proviso, (y) such agreement is not binding on the Company until three (3) Business Days after delivery of the notice set forth in this Section 6.3(e) and (z) within seven Business Days of receiving the Company has the right under such agreement notice described in (y) above, FNF fails to unilaterally terminate such agreement prior propose and agree to the termination enter into a modification of this Agreement without any payment or other liability or obligation such that the Board of any kindDirectors of ANFI determines by a majority vote in its good faith judgment that such Acquisition Proposal previously determined to constitute a Superior Proposal is no longer a Superior Proposal.
(f) The Company shall immediately cease, and shall cause any party acting on its behalf to cease, and cause to be terminated any existing discussions or negotiations with any Third Party conducted heretofore with respect to any of the foregoing and shall request any such parties in possession of confidential information about the Company or its Subsidiaries that was furnished by or on behalf of the Company or its Subsidiaries to return or destroy all such information in the possession of any such party or the agent or advisor of any such party.
Appears in 1 contract
Sources: Merger Agreement (Anfi Inc)
Acquisition Proposals; Board Recommendation. (a) The Company Each of ▇▇▇▇▇▇▇ and Cardiac agrees that it shall not, nor shall it permit any Company Subsidiary of its Subsidiaries to, nor shall it authorize or knowingly permit any officer, director, employee, investment banker, attorney, accountant, agent or other advisor or representative of the Company such party or any Company Subsidiaryof its Subsidiaries, directly or indirectly, to (i) solicit take any action to solicit, initiate or initiate facilitate or encourage the submission of any Acquisition Proposal, (ii) participate engage in any discussions or negotiations regarding, or furnish to any Person any non-public information with respect to, or take any other action knowingly to facilitate any inquiries or the making of any proposal that constitutes constitutes, or that would may be reasonably be expected to lead to to, any Acquisition Proposal, (iii) grant any waiver or release under any standstill or similar agreement with respect to any class of the Company's such party’s equity securities or (iv) other than in the manner contemplated by Section 7.4(d), enter into any agreement with respect to any Acquisition Proposal; provided, however, that if each of ▇▇▇▇▇▇▇ and Cardiac may take any actions described in the Company receives foregoing clauses (i), (ii), (iii), or (iv) in respect of any Person who makes an unsolicited Acquisition Proposal from a Third Party that the Company's Proposal, but only if (x) such party’s Board of Directors or the Special Committee Directors, after consultation with its investment advisors and outside legal counsel, determines in its good faith is judgment that either (A) such Acquisition Proposal constitutes a Superior Proposal and provides written notice of termination of this Agreement in accordance with Section 7.4(d) and Section 10.1, or (B) such Acquisition Proposal could reasonably be expected to lead result in a Superior Proposal, and (y) prior to furnishing any non-public information to such Person, such Person shall have entered into a confidentiality agreement with ▇▇▇▇▇▇▇ or Cardiac, as the case may be, on terms no less favorable to the delivery of a Superior Proposal from that Third Party, such party than the Company may, subject to compliance with the other provisions of this Section 6.3, furnish information to, and engage in discussions and negotiations with, such Third Party with respect to its Acquisition Proposal ("Permitted Actions"). Notwithstanding the foregoing, the Board of Directors shall not take any Permitted Actions unless the Company provides Acquiror with reasonable advance notice thereof.
(b) Except as permitted by this Section 6.3(b), neither the Board of Directors terms of the CompanyMutual Non-Disclosure Agreement, the Special Committee nor dated July 7, 2004, between ▇▇▇▇▇▇▇ and Cardiac, agreeing to keep confidential any committee thereof shall amend, withdraw, modify, change, condition or qualify in any manner adverse to Acquiror, the Company Recommendation (it being understood and agreed that a communication by the Board of Directors of the Company or the Special Committee non-public information received. In addition to the Company Stockholders pursuant to Rule 14d-9(f) of the Exchange Act, or any similar communication to the Company Stockholders in connection with the making or amendment of a tender offer or exchange offer, shall not be deemed to constitute a withdrawal, modification, amendment, condition or qualification of the Company Recommendation for all purposes of this Agreement, including this Section 6.3 and Section 10.1(e)). Notwithstanding the foregoing, in the event that the Board of Directors of the Company or the Special Committee takes the actions set forth in Section 6.3(e)foregoing requirements, the Board of Directors of such party shall be prohibited from taking such actions with respect to an Acquisition Proposal unless the Company or Board of Directors determines, after consulting with its outside legal counsel, that the Special Committee may failure to do so would be inconsistent with its fiduciary duties under the DGCL. In addition to the foregoing, such party shall (i) withdraw provide the other party with at least forty-eight (48) hours prior notice (or modify in such lesser prior notice as provided to the members of such party's Board of Directors) of any manner adverse meeting of such party's Board of Directors at which such party's Board of Directors is reasonably expected to Acquiror, the Company Recommendation consider an Acquisition Proposal and (ii) approve or recommend, or propose provide the other party with the same prior written notice of a meeting of such party's Board of Directors at which such party's Board of Directors is reasonably expected to approve or recommend, any Acquisition recommend a Superior Proposal to its stockholders as is provided to such party’s Board of Directors together with a copy of the definitive documentation relating to such Superior Proposal.
(cb) Unless the Company's Board of Directors or the Special Committee has previously withdrawn, or is concurrently therewith withdrawing, the Company Recommendation in accordance with Until this Agreement shall have been terminated pursuant to Section 6.37.4(d), neither the Company's party’s Board of Directors nor any committee thereof shall recommend any Acquisition Proposal to the Company Stockholderssuch party’s stockholders. Notwithstanding the foregoing, nothing contained in this Section 6.3(c7.4(b) or elsewhere in this Agreement shall prevent the Company's either party’s Board of Directors or the Special Committee from (i) complying with Rule 14d-9 and Rule 14e-2 under the Exchange Act with respect to any Acquisition Proposal or making any disclosure required by applicable Law or otherwise complying (ii) withdrawing the ▇▇▇▇▇▇▇ Recommendation or Cardiac Recommendation, as the case may be, if, after consulting with applicable Lawits outside legal counsel, the failure to do so would be inconsistent with its fiduciary duties under the DGCL.
(dc) The Company shall notify Acquiror promptly Promptly (but in no event later than the next Business Dayforty-eight (48) hours) after receipt by the Company of any Acquisition Proposal or any request for information relating to the Company either party or any of its Subsidiaries in connection with an (or any of their respective directors, officers, agents or advisors) of any Acquisition Proposal Proposal, any request for non-public information or for access to the properties, books or records of the Company such party or any of its Subsidiaries or any request for a waiver or release under any standstill or similar agreement, by any Person that informs the Board of Directors of the Company has made an Acquisition Proposal or such Subsidiary indicates that it is considering making, or has made making an Acquisition Proposal; provided, howeversuch party shall notify the other party (x) that a Person may be considering making an Acquisition Proposal, that prior to participating in any discussions or negotiations or furnishing and (y) of the identity of such Person and, if an Acquisition Proposal is made, of the material terms of such Acquisition Proposal. Each party shall keep the other party reasonably informed of the status and material terms of any such informationAcquisition Proposal.
(d) Upon notice and in accordance with the terms of Section 10.1, and subject to Section 10.4(c), either party may terminate this Agreement at any time before the Company ▇▇▇▇▇▇▇ Stockholder Approval or Cardiac Stockholder Approval, as applicable, is obtained if (i) such party’s Board of Directors shall receive from have authorized such Person an executed confidentiality agreement on terms that are not materially less favorable party, subject to the Company than the Confidentiality Agreement. The notice shall indicate the terms and conditions of the proposal or request and the identity of the Person making it, and the Company will promptly notify Acquiror of any material modification of or material amendment to any Acquisition Proposal (and the terms of such modification or amendment); provided, however, that, without limiting what changes may be material, any change in the consideration to be paid with respect to the Acquisition Proposal shall be deemed to be a material modification or a material amendment. The Company shall keep Acquiror informed, on a reasonably current basis, of the status of any negotiations, discussions and documents with respect to such Acquisition Proposal or request.
(e) Holding, Acquiror or the Company may terminate this Agreement, if the Company's Board of Directors or the Special Committee, after consultation with its financial and legal advisors, shall have determined (i) to approve or recommend an Acquisition Proposal after concluding that the Acquisition Proposal constitutes a Superior Proposal and (ii) to enter into a binding agreement concerning a transaction that constitutes a Superior Proposal, (ii) such party notifies the Acquisition Proposal; provided, however, other party that the Company may not exercise its right to terminate under this Section 6.3(e), unless (1) the Company shall have provided to Acquiror at least three (3) Business Days' prior written notice that its Board of Directors or the Special Committee has authorized the termination and it intends to terminate this Agreement pursuant to this Section 6.3(e)enter into such agreement, specifying the material terms and conditions of the Acquisition Proposalsuch agreement, and (2iii) Acquiror does not make, within three (3) five Business Days of delivery receiving the notice described in (ii) above, the other party fails to propose and agree to enter into a modification of the noticethis Agreement or, an offer after proposing to enter into a modification to this Agreement within such that a majority of the disinterested members of the Company's five Business Day period, such party’s Board of Directors or the Special Committee determines by a majority vote in its good faith judgment, after consultation with its investment advisors and outside legal counsel, that the foregoing such Acquisition Proposal no longer constitutes previously determined to constitute a Superior Proposal continues to be a Superior Proposal. In connection with the forgoing, the Company agrees that it will not enter into an agreement which binds the Company with respect to such an Acquisition Proposal unless (x) the Company simultaneously delivers to Acquiror the notice contemplated by the foregoing proviso, (y) such agreement is not binding on the Company until three (3) Business Days after delivery of the notice set forth in this Section 6.3(e) and (z) the Company has the right under such agreement to unilaterally terminate such agreement prior to the termination of this Agreement without any payment or other liability or obligation of any kind.
(f) The Company shall immediately cease, and shall cause any party acting on its behalf to cease, and cause to be terminated any existing discussions or negotiations with any Third Party conducted heretofore with respect to any of the foregoing and shall request any such parties in possession of confidential information about the Company or its Subsidiaries that was furnished by or on behalf of the Company or its Subsidiaries to return or destroy all such information in the possession of any such party or the agent or advisor of any such party.
Appears in 1 contract
Acquisition Proposals; Board Recommendation. (a) The Company agrees that it shall not, nor shall it permit any Company Subsidiary to, nor shall it authorize or knowingly permit any officer, director, employee, investment banker, attorney, accountant, agent or other advisor or representative of the Company or any Company Subsidiary, directly or indirectly, to (i) solicit solicit, initiate or initiate otherwise knowingly encourage the submission of any Acquisition Proposal, (ii) participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to, or take any other action knowingly to facilitate any inquiries or the making of any proposal that constitutes constitutes, or that would reasonably be expected to lead to to, any Acquisition Proposal, (iii) grant any waiver or release under any standstill or similar agreement with respect to any class or series of the Company's ’s equity securities to the extent such waiver or release would permit the other party or parties to such agreement to actually acquire such securities or approve any matter for purposes of Section 203 of the DGCL with respect to any Third Party (for the avoidance of doubt, a waiver or release under such agreement that solely permits a proposal or offer, including, without limitation, an Acquisition Proposal, would not violate this clause (iii)) or (iv) enter into any agreement with respect to any Acquisition Proposal; provided, however, that if the Company receives an unsolicited Acquisition Proposal from a Third Party that the Company's ’s Board of Directors or the Special Committee determines in good faith is or could reasonably be expected to lead to the delivery of a Superior Proposal from that Third Party, the Company may, subject to compliance with all the other provisions of this Section 6.3, furnish information to, to and engage in discussions and negotiations with, with such Third Party with respect to its Acquisition Proposal ("“Permitted Actions"). Notwithstanding ”) if and only to the foregoingextent that, the Board of Directors or the Special Committee, by majority vote, concludes in good faith, after consultation with outside financial advisors and legal advisors, that, as a result of such Acquisition Proposal, such Permitted Action is necessary for the Board of Directors or the Special Committee to act in a manner consistent with their respective fiduciary duties under applicable Law. The Board of Directors of the Company or the Special Committee shall not take provide Acquiror with prompt notice (but in no event later than the next day) of its engaging in any Permitted Actions unless the Company provides Acquiror with reasonable advance notice thereofActions.
(b) Except as permitted by this Section 6.3(b), neither the Board of Directors of the Company, Company nor the Special Committee nor or any other committee thereof shall amend, withdraw, modify, change, condition or qualify in any manner adverse to Acquiror, the Company Recommendation (it being understood and agreed that a communication by the Board of Directors of the Company or the Special Committee to the Company Stockholders pursuant to Rule 14d-9(f) of the Exchange Act, or any similar communication to the Company Stockholders in connection with the making or amendment of a tender offer or exchange offeroffer by any Person other than the Company or any Company Subsidiary, shall not be deemed to constitute a withdrawal, modification, amendment, condition or qualification of the Company Recommendation for all purposes of this Agreement, including this Section 6.3 and Section 10.1(e)6.3). Notwithstanding the foregoing, in the event that the Board of Directors of the Company or the Special Committee takes the actions set forth in Section 6.3(e), the Board of Directors of the Company or the Special Committee may withdraw or modify the Company Recommendation in a manner adverse to Acquiror if (i) withdraw the Company has complied in all material respects with this Section 6.3, (ii) the Company shall have notified Parent at least two Business Days in advance of its intention to effect such withdrawal or modify in any manner adverse to Acquiror, modification of the Company Recommendation and (iiiii) approve the Board of Directors or recommendthe Special Committee, by majority vote, concludes in good faith, after consultation with outside financial advisors and legal advisors, that such withdrawal or propose modification is necessary for the Board of Directors or the Special Committee to approve or recommend, any Acquisition Proposalact in a manner consistent with their respective fiduciary duties under applicable Law.
(c) Unless the Company's ’s Board of Directors or the Special Committee has previously withdrawn, or is concurrently therewith withdrawing, the Company Recommendation in accordance with this Section 6.3, neither the Company's ’s Board of Directors nor the Special Committee or any other committee thereof shall recommend any Acquisition Proposal to the Company Stockholders. Notwithstanding the foregoing, nothing Nothing contained in this Section 6.3(c) 6.3 or elsewhere in this Agreement shall (i) prevent the Company's ’s Board of Directors or the Special Committee from complying with Rule 14e-2 under the Exchange Act with respect to any Acquisition Proposal or making any disclosure required by applicable Law or otherwise complying with applicable Law.
(dii) The Company shall notify Acquiror promptly (but in no event later than prohibit accurate disclosure of factual information regarding the next Business Day) after receipt by business, financial condition or results of operations of the Company of any Acquisition Proposal Company, or any request for information relating to the Company or any of its Subsidiaries in connection with fact that an Acquisition Proposal or for access to the propertieshas been made, books or records of the Company or any of its Subsidiaries or any request for a waiver or release under any standstill or similar agreement, by any Person that informs the Board of Directors of the Company or such Subsidiary that it is considering making, or has made an Acquisition Proposal; provided, however, that prior to participating in any discussions or negotiations or furnishing any such information, the Company shall receive from such Person an executed confidentiality agreement on terms that are not materially less favorable to the Company than the Confidentiality Agreement. The notice shall indicate the terms and conditions of the proposal or request and the identity of the Person party making it, and the Company will promptly notify Acquiror of any material modification of or material amendment to any Acquisition Proposal (and the terms of such modification or amendment); provided, however, that, without limiting what changes may be material, any change in the consideration to be paid with respect to the Acquisition Proposal shall be deemed to be a material modification or a material amendment. The Company shall keep Acquiror informed, on a reasonably current basis, of the status of any negotiations, discussions and documents with respect to such Acquisition Proposal or request.
(e) Holding, Acquiror or the Company may terminate this Agreement, if the Company's Board of Directors or the Special Committee, after consultation with its financial and legal advisors, shall have determined (i) to approve or recommend an Acquisition Proposal after concluding that the Acquisition Proposal constitutes a Superior Proposal and (ii) to enter into a binding agreement concerning the Acquisition Proposal; provided, however, that the Company may not exercise its right to terminate under this Section 6.3(e), unless (1) the Company shall have provided to Acquiror at least three (3) Business Days' prior written notice that its Board of Directors or the Special Committee has authorized the termination and intends to terminate this Agreement pursuant to this Section 6.3(e), specifying the material terms and conditions of the Acquisition Proposal, and (2) Acquiror does not make, within three (3) Business Days of delivery of the notice, an offer such that a majority of the disinterested members of the Company's Board of Directors or the Special Committee determines that the foregoing Acquisition Proposal no longer constitutes a Superior Proposal. In connection with the forgoing, the Company agrees that it will not enter into an agreement which binds the Company with respect to such an Acquisition Proposal unless (x) the Company simultaneously delivers to Acquiror the notice contemplated by the foregoing proviso, (y) such agreement is not binding on the Company until three (3) Business Days after delivery of the notice set forth in this Section 6.3(e) and (z) the Company has the right under such agreement to unilaterally terminate such agreement prior to the termination of this Agreement without any payment extent such information, facts, identity or other liability or obligation of any kind.
(f) The Company shall immediately cease, and shall cause any party acting on its behalf to cease, and cause terms are required to be terminated any existing discussions or negotiations with any Third Party conducted heretofore with respect to any of the foregoing and shall request any such parties in possession of confidential information about the Company or its Subsidiaries that was furnished by or on behalf of the Company or its Subsidiaries to return or destroy all such information in the possession of any such party or the agent or advisor of any such partydisclosed under applicable Law.
Appears in 1 contract
Sources: Merger Agreement (Cbre Holding Inc)
Acquisition Proposals; Board Recommendation. (a) The Company shall, and shall cause its Subsidiaries, and its and their officers, directors, employees, financial advisers, attorneys, accountants and other advisers, representatives and agents (collectively, "Representatives") to cease and cause to be terminated immediately any discussions or negotiations with any parties that may be ongoing with respect to, or that could reasonably be expected to lead to, an Acquisition Proposal. The Company agrees that it shall not, nor shall it permit any Company Subsidiary of its Subsidiaries to, nor shall it authorize or knowingly permit any officer, director, employee, investment banker, attorney, accountant, agent or other advisor or representative of the Company or any Company Subsidiaryits Representatives, directly or indirectly, to (i) solicit solicit, initiate, facilitate or initiate encourage (including by way of furnishing information) the submission submission, making or announcement of any Acquisition Proposal, (ii) participate initiate or engage in any discussions or negotiations regarding, or furnish or disclose to any Person any information with respect to, or take any other action knowingly to facilitate or in furtherance of any inquiries or the submission, making or announcement of any proposal that constitutes constitutes, or that would may be reasonably be expected to lead to to, any Acquisition Proposal, (iii) grant any waiver or release under any standstill or similar agreement with respect to any class of the Company's equity securities or (iv) enter into any agreement agreement, arrangement or understanding with respect to any Acquisition ProposalProposal or enter into any agreement, arrangement or understanding requiring the Company to abandon, terminate or fail to consummate the Merger or any other transaction contemplated hereby; provided, however, that if at any time before the Company receives Shareholder Approval is obtained, solely in response to an unsolicited bona fide written Acquisition Proposal that did not result from a Third Party that the breach of this Section 6.3 and following delivery to Parent of notice of such Acquisition Proposal in compliance with its obligations under Section 6.3(c) hereof, the Company may (i) furnish information to the party making the Acquisition Proposal, (ii) in response to an unsolicited bona fide written Acquisition Proposal, initiate and/or engage in discussions or negotiations regarding the Acquisition Proposal and/or (iii) grant any waiver or release under any standstill or similar agreement with respect to any class of the Company's Board of Directors or the Special Committee determines in good faith is or could reasonably be expected to lead equity securities to the delivery of a Superior Proposal from that Third Partythird party making the Acquisition Proposal, the Company may, subject to compliance with the other provisions of this Section 6.3, furnish information to, and engage in discussions and negotiations with, such Third Party with respect to its Acquisition Proposal but only if ("Permitted Actions"). Notwithstanding the foregoing, the Board of Directors shall not take any Permitted Actions unless the Company provides Acquiror with reasonable advance notice thereof.
(bx) Except as permitted by this Section 6.3(b), neither the Board of Directors of the Company, the Special Committee nor any committee thereof shall amend, withdraw, modify, change, condition or qualify in any manner adverse to Acquiror, the Company Recommendation (it being understood and agreed that a communication by the Board of Directors of the Company or the Special Committee to the Company Stockholders pursuant to Rule 14d-9(freasonably determines in its good faith judgment (A) of the Exchange Actafter consulting with its outside legal counsel, or any similar communication to the Company Stockholders in connection with the making or amendment of a tender offer or exchange offer, shall not be deemed to constitute a withdrawal, modification, amendment, condition or qualification of the Company Recommendation that such action is necessary for all purposes of this Agreement, including this Section 6.3 and Section 10.1(e)). Notwithstanding the foregoing, in the event that the Board of Directors to comply with its fiduciary duties under applicable Law and (B) after consultation with a financial adviser of nationally recognized reputation, that such Acquisition Proposal constitutes, or is reasonably likely to result in, a Superior Proposal, and (y) prior to furnishing any information to such Person, such Person shall have entered into a confidentiality agreement with the Company or the Special Committee takes the actions set forth in Section 6.3(e), the Board of Directors of on terms no less favorable to the Company or than the Special Committee may (i) withdraw or modify in any manner adverse to Acquiror, Confidentiality Agreement between the Company Recommendation and Parent dated as of April 9, 2001 (ii) approve or recommend, or propose to approve or recommend, any Acquisition Proposalthe "Confidentiality Agreement").
(cb) Unless the Company's Board of Directors or the Special Committee has previously withheld, withdrawn, or is concurrently therewith withdrawing, the Company Recommendation in accordance with this Section 6.3Recommendation, neither the Company's Board of Directors nor any committee thereof shall recommend any Acquisition Proposal to the Company StockholdersCompany's shareholders. Notwithstanding the foregoing, nothing contained in this Section 6.3(c6.3(b) or elsewhere in this Agreement shall prevent the Company's Board of Directors or the Special Committee from complying with Rule 14e-2 under the Exchange Act with respect to any Acquisition Proposal or making any disclosure required by or otherwise complying with applicable Law.
(dc) The Company shall notify Acquiror promptly (but in no event later than Within one day following the next Business Day) after date of receipt by the Company of any Acquisition Proposal or any request for information relating to the Company or any of its Subsidiaries in connection with an (or any of their respective directors, officers, agents or advisers) of any Acquisition Proposal Proposal, any inquiry or contacts concerning, or any request for information or for access to the properties, books or records of the Company or any of its Subsidiaries or any request for a waiver or release under any standstill or similar agreement, by any Person that informs the Board of Directors of the Company has made an Acquisition Proposal or such Subsidiary indicates that it is considering making, or has made making an Acquisition Proposal; provided, however, that prior to participating in any discussions or negotiations or furnishing any such information, the Company shall receive from (i) notify Parent that a Person has made or may be considering making an Acquisition Proposal, (ii) notify Parent of the identity of such Person an executed confidentiality agreement on terms that are not materially less favorable to the Company than the Confidentiality Agreement. The notice shall indicate and of the terms and conditions of such Acquisition Proposal, inquiry, contact, or request, and (iii) provide copies of any written materials received by the proposal or request and the identity Company in respect of the Person making itforegoing. The Company agrees that it shall keep Parent reasonably informed of the status and details (including amendments or proposed amendments) of any such Acquisition Proposal, inquiry, contact or request, and keep Parent reasonably informed as to the material details of any information requested of or provided by the Company will promptly notify Acquiror and as to the material details of all discussions or negotiations with respect to any material modification of such request, Acquisition Proposal or material amendment inquiry. The Company agrees that it shall simultaneously provide to Parent any non-public information concerning the Company provided to any other Person or group in connection with any Acquisition Proposal which was not previously provided to Parent.
(d) Upon notice and in accordance with the terms of such modification or amendment); providedSection 9.1 hereof, however, that, without limiting what changes may be material, any change in the consideration to be paid with respect to the Acquisition Proposal shall be deemed to be a material modification or a material amendment. The Company shall keep Acquiror informed, on a reasonably current basis, of the status of any negotiations, discussions and documents with respect to such Acquisition Proposal or request.
(e) Holding, Acquiror or the Company may terminate this Agreement, Agreement at any time before the Company Shareholder Approval is obtained if (i) the Company's Board of Directors or the Special Committee, after consultation with its financial and legal advisors, shall have determined (i) authorized the Company, subject to approve or recommend an Acquisition Proposal after concluding that the Acquisition Proposal constitutes a Superior Proposal terms and (ii) conditions of this Agreement, to enter into a binding agreement concerning the Acquisition a transaction that constitutes a Superior Proposal; provided, however, that the Company may not exercise its right to terminate under this Section 6.3(e), unless (1ii) the Company shall have provided to Acquiror at least three (3) Business Days' prior written notice notifies Parent that its Board of Directors or the Special Committee has authorized the termination and it intends to terminate this Agreement pursuant to this Section 6.3(e)enter into such agreement, specifying the material terms and conditions of the Acquisition Proposal, such agreement and (2) Acquiror does not make, within three (3) provides Parent with four Business Days (during which period of delivery four Business Days the Company shall refrain from entering into such Agreement) to propose and agree to enter into a modification of the noticethis Agreement, an offer such that a majority of the disinterested members of (iii) the Company's Board of Directors or has duly considered any proposals that Parent may make during the Special Committee four Business Day period described in (ii) above and the Company has fully cooperated with Parent during such four Business Day period (including, without limitation, by complying with Section 6.3(c) of this Agreement) and the Company, after consideration of any proposals made by Parent, determines in good faith that the foregoing Acquisition Proposal no longer constitutes remains a Superior Proposal. In connection with , (iv) Parent has received the forgoingTermination Fee (as hereinafter defined) contemplated by Section 9.3(b), the Company agrees that it will not enter into an agreement which binds the Company with respect to such an Acquisition Proposal unless and (xv) the Company simultaneously delivers intends, in good faith, to Acquiror the notice contemplated by the foregoing proviso, (y) such agreement is not binding on the Company until three (3) Business Days after delivery of the notice set forth in this Section 6.3(e) and (z) the Company has the right under such enter into a definitive agreement to unilaterally terminate effect the Superior Proposal immediately following such agreement prior to the termination of this Agreement without any payment or other liability or obligation of any kindtermination.
(f) The Company shall immediately cease, and shall cause any party acting on its behalf to cease, and cause to be terminated any existing discussions or negotiations with any Third Party conducted heretofore with respect to any of the foregoing and shall request any such parties in possession of confidential information about the Company or its Subsidiaries that was furnished by or on behalf of the Company or its Subsidiaries to return or destroy all such information in the possession of any such party or the agent or advisor of any such party.
Appears in 1 contract
Acquisition Proposals; Board Recommendation. (a) The Company agrees will, and will direct and use reasonable efforts to cause its directors, officers, employees, representatives and agents to, immediately cease any discussions or negotiations with any parties that it shall may be ongoing with respect to an Acquisition Proposal. The Company will not, nor shall will it permit any Company Subsidiary of its Subsidiaries to, nor shall will it authorize or knowingly permit any officerof its directors, directorofficers, employee, or employees or any investment banker, financial advisor, attorney, accountant, agent accountant or other advisor or representative of the Company retained by it or any Company Subsidiaryof its Subsidiaries to, directly or indirectly, to (i) solicit solicit, initiate or initiate knowingly encourage (including by way of furnishing confidential information), or take any other action knowingly to facilitate, any inquiries or the submission making of any proposal which constitutes, or may reasonably be expected to lead to, any Acquisition Proposal, Proposal or (ii) participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to, or take any other action knowingly to facilitate any inquiries or the making of any proposal that constitutes or that would reasonably be expected to lead to any Acquisition Proposal, (iii) grant any waiver or release under any standstill or similar agreement with respect to any class of the Company's equity securities or (iv) enter into any agreement with respect to regarding any Acquisition Proposal; provided, however, that if if, the Board of Directors of the Company receives an unsolicited Acquisition Proposal from a Third Party determines in good faith, after consultation with outside counsel, that it is necessary to do so in order to comply with its fiduciary duties to the Company's Board of Directors or the Special Committee determines in good faith is or could reasonably be expected to lead to the delivery of a Superior Proposal from that Third Partystockholders under applicable law, the Company may, in response to an Acquisition Proposal that was not solicited subsequent to the date hereof, and subject to compliance with the other provisions of this Section 6.37.3(c), (x) furnish information to, to any person pursuant to a customary confidentiality agreement (as determined by the Company after consultation with its outside counsel) and engage (y) participate in discussions and or negotiations with, regarding such Third Party with respect to its Acquisition Proposal ("Permitted Actions"). Notwithstanding the foregoing, the Board of Directors shall not take any Permitted Actions unless the Company provides Acquiror with reasonable advance notice thereofProposal.
(b) Except as permitted by set forth in this Section 6.3(b)7.3, neither the Board of Directors of the Company, the Special Committee Company nor any committee thereof shall amend, withdraw, will (i) withdraw or modify, changeor propose publicly to withdraw or modify, condition or qualify in any a manner adverse to Acquiror, the Company Recommendation (it being understood and agreed that a communication approval or recommendation by the such Board of Directors or such committee of the Company Merger or the Special Committee to the Company Stockholders pursuant to Rule 14d-9(f) of the Exchange Act, or any similar communication to the Company Stockholders in connection with the making or amendment of a tender offer or exchange offer, shall not be deemed to constitute a withdrawal, modification, amendment, condition or qualification of the Company Recommendation for all purposes of this Agreement, including this Section 6.3 and Section 10.1(e)). Notwithstanding the foregoing, in the event that the Board of Directors of the Company or the Special Committee takes the actions set forth in Section 6.3(e), the Board of Directors of the Company or the Special Committee may (i) withdraw or modify in any manner adverse to Acquiror, the Company Recommendation and (ii) approve or recommend, or propose publicly to approve or recommend, any Acquisition Proposal or (iii) cause the Company to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement (each, an "Acquisition Agreement") related to any Acquisition Proposal. A-29
(c) In addition to the obligations of the Company set forth in paragraphs (a) and (b) of this Section 7.3, the Company will promptly advise Acquiror orally and in writing of any request for confidential information in connection with an Acquisition Proposal or of any Acquisition Proposal. The Company will keep Acquiror reasonably informed of the status of and material information concerning (including amendments or proposed amendments) any Acquisition Proposal.
(cd) Unless Nothing contained in this Section 7.3 will prohibit the Company's Company from making any disclosure to the Company stockholders if, in the good faith judgment of the Board of Directors or of the Special Committee has previously withdrawnCompany, or is concurrently therewith withdrawingafter consultation with outside counsel, the Company Recommendation in accordance failure so to disclose would be inconsistent with this Section 6.3applicable law; provided, however, neither the Company's Company nor its Board of Directors nor any committee thereof shall recommend any Acquisition Proposal shall, except as permit- ▇▇▇ by Section 7.3(b), withdraw or modify, or propose publicly to the Company Stockholders. Notwithstanding the foregoingwithdraw or modify, nothing contained in this Section 6.3(c) or elsewhere in this Agreement shall prevent the Company's Board of Directors or the Special Committee from complying with Rule 14e-2 under the Exchange Act its position with respect to any Acquisition Proposal this Agreement or making any disclosure required by the Merger or otherwise complying with applicable Law.
(d) The Company shall notify Acquiror promptly (but in no event later than the next Business Day) after receipt by the Company of any Acquisition Proposal approve or any request for information relating to the Company or any of its Subsidiaries in connection with an Acquisition Proposal or for access to the properties, books or records of the Company or any of its Subsidiaries or any request for a waiver or release under any standstill or similar agreement, by any Person that informs the Board of Directors of the Company or such Subsidiary that it is considering makingrecommend, or has made propose publicly to approve or recommend, an Acquisition Proposal; provided, however, that prior to participating in any discussions or negotiations or furnishing any such information, the Company shall receive from such Person an executed confidentiality agreement on terms that are not materially less favorable to the Company than the Confidentiality Agreement. The notice shall indicate the terms and conditions of the proposal or request and the identity of the Person making it, and the Company will promptly notify Acquiror of any material modification of or material amendment to any Acquisition Proposal (and the terms of such modification or amendment); provided, however, that, without limiting what changes may be material, any change in the consideration to be paid with respect to the Acquisition Proposal shall be deemed to be a material modification or a material amendment. The Company shall keep Acquiror informed, on a reasonably current basis, of the status of any negotiations, discussions and documents with respect to such Acquisition Proposal or request.
(e) Holding, Acquiror or the Company may terminate this Agreement, if the Company's Board of Directors or the Special Committee, after consultation with its financial and legal advisors, shall have determined (i) to approve or recommend an Acquisition Proposal after concluding that the Acquisition Proposal constitutes a Superior Proposal and (ii) to enter into a binding agreement concerning the Acquisition Proposal; provided, however, that the Company may not exercise its right to terminate under this Section 6.3(e), unless (1) the Company shall have provided to Acquiror at least three (3) Business Days' prior written notice that its Board of Directors or the Special Committee has authorized the termination and intends to terminate this Agreement pursuant to this Section 6.3(e), specifying the material terms and conditions of the Acquisition Proposal, and (2) Acquiror does not make, within three (3) Business Days of delivery of the notice, an offer such that a majority of the disinterested members of the Company's Board of Directors or the Special Committee determines that the foregoing Acquisition Proposal no longer constitutes a Superior Proposal. In connection with the forgoing, the Company agrees that it will not enter into an agreement which binds the Company with respect to such an Acquisition Proposal unless (x) the Company simultaneously delivers to Acquiror the notice contemplated by the foregoing proviso, (y) such agreement is not binding on the Company until three (3) Business Days after delivery of the notice set forth in this Section 6.3(e) and (z) the Company has the right under such agreement to unilaterally terminate such agreement prior to the termination of this Agreement without any payment or other liability or obligation of any kind.
(f) The Company shall immediately cease, and shall cause any party acting on its behalf to cease, and cause to be terminated any existing discussions or negotiations with any Third Party conducted heretofore with respect to any of the foregoing and shall request any such parties in possession of confidential information about the Company or its Subsidiaries that was furnished by or on behalf of the Company or its Subsidiaries to return or destroy all such information in the possession of any such party or the agent or advisor of any such party.
Appears in 1 contract
Acquisition Proposals; Board Recommendation. (a) The Company agrees that it shall notimmediately terminate, nor and shall it permit any Company Subsidiary toinstruct its and its Subsidiaries' officers, nor shall it authorize or knowingly permit any officerdirectors, directoremployees, employeeattorneys, investment bankeraccountants, attorneyadvisors, accountantrepresentatives and agents ("Representatives") to immediately terminate, agent or other advisor or representative of the Company or any Company Subsidiary, directly or indirectly, to (i) solicit or initiate the submission of any Acquisition Proposal, (ii) participate in any all existing discussions or negotiations regardingnegotiations, or furnish to if any, with any Person any information conducted heretofore with respect to, or take any other action knowingly to facilitate any inquiries or the making of any proposal that constitutes or that would reasonably be expected to lead to any to, an Acquisition Proposal, (iii) grant any waiver or release under any standstill or similar agreement with respect to any class of the Company's equity securities or (iv) enter into any agreement with respect to any Acquisition Proposal; provided, however, that if the Company receives an unsolicited Acquisition Proposal from a Third Party that the Company's Board of Directors or the Special Committee determines in good faith is or could reasonably be expected to lead to the delivery of a Superior Proposal from that Third Party, the Company may, subject to compliance with the other provisions of this Section 6.3, furnish information to, and engage in discussions and negotiations with, such Third Party with respect to its Acquisition Proposal ("Permitted Actions"). Notwithstanding the foregoing, the Board of Directors shall not take any Permitted Actions unless the Company provides Acquiror with reasonable advance notice thereof.
(b) Except as permitted by this Section 6.3(b), neither the Board of Directors of the Company, the Special Committee nor any committee thereof shall amend, withdraw, modify, change, condition or qualify in any manner adverse to Acquiror, the Company Recommendation (it being understood and agreed that a communication by the Board of Directors of the Company or the Special Committee to the Company Stockholders pursuant to Rule 14d-9(f) of the Exchange Act, or any similar communication to the Company Stockholders in connection with the making or amendment of a tender offer or exchange offer, shall not be deemed to constitute a withdrawal, modification, amendment, condition or qualification of the Company Recommendation for all purposes of this Agreement, including this Section 6.3 and Section 10.1(e)). Notwithstanding the foregoing, in the event that the Board of Directors of the Company or the Special Committee takes the actions set forth in Section 6.3(e), the Board of Directors of the Company or the Special Committee may (i) withdraw or modify in any manner adverse to Acquiror, the Company Recommendation and (ii) approve or recommend, or propose to approve or recommend, any Acquisition Proposal.
(c) Unless the Company's Board of Directors or the Special Committee has previously withdrawn, or is concurrently therewith withdrawing, the Company Recommendation in accordance with this Section 6.3, neither the Company's Board of Directors nor any committee thereof shall recommend any Acquisition Proposal to the Company Stockholders. Notwithstanding the foregoing, nothing contained in this Section 6.3(c) or elsewhere in this Agreement shall prevent the Company's Board of Directors or the Special Committee from complying with Rule 14e-2 under the Exchange Act with respect to any Acquisition Proposal or making any disclosure required by or otherwise complying with applicable Law.
(d) The Company shall notify Acquiror promptly (but in no event later than the next Business Day) after receipt by the Company of any Acquisition Proposal or any request for information relating to the Company or any of its Subsidiaries in connection demand that each Person which has heretofore executed a confidentiality agreement with an Acquisition Proposal or for access to the properties, books or records benefit of the Company or any of its Subsidiaries or any request for a waiver of its or release under any standstill or similar agreement, by any Person that informs the Board of Directors of the Company or such Subsidiary that it is considering making, or has made an Acquisition Proposal; provided, however, that prior to participating in any discussions or negotiations or furnishing any such information, the Company shall receive from such Person an executed confidentiality agreement on terms that are not materially less favorable to the Company than the Confidentiality Agreement. The notice shall indicate the terms and conditions of the proposal or request and the identity of the Person making it, and the Company will promptly notify Acquiror of any material modification of or material amendment to any Acquisition Proposal (and the terms of such modification or amendment); provided, however, that, without limiting what changes may be material, any change in the consideration to be paid with respect to the Acquisition Proposal shall be deemed to be a material modification or a material amendment. The Company shall keep Acquiror informed, on a reasonably current basis, of the status of any negotiations, discussions and documents their Representatives with respect to such Person's consideration of a possible Acquisition Proposal promptly return or request.
destroy (e) Holding, Acquiror or the Company may terminate this Agreement, if which destruction shall be certified in writing by such Person to the Company's Board of Directors or the Special Committee, after consultation with its financial and legal advisors, shall have determined (i) to approve or recommend an Acquisition Proposal after concluding that the Acquisition Proposal constitutes a Superior Proposal and (ii) to enter into a binding agreement concerning the Acquisition Proposal; provided, however, that the Company may not exercise its right to terminate under this Section 6.3(e), unless (1) the Company shall have provided to Acquiror at least three (3) Business Days' prior written notice that its Board of Directors or the Special Committee has authorized the termination and intends to terminate this Agreement pursuant to this Section 6.3(e), specifying the material terms and conditions of the Acquisition Proposal, and (2) Acquiror does not make, within three (3) Business Days of delivery of the notice, an offer such that a majority of the disinterested members of the Company's Board of Directors or the Special Committee determines that the foregoing Acquisition Proposal no longer constitutes a Superior Proposal. In connection with the forgoing, the Company agrees that it will not enter into an agreement which binds the Company with respect to such an Acquisition Proposal unless (x) the Company simultaneously delivers to Acquiror the notice contemplated by the foregoing proviso, (y) such agreement is not binding on the Company until three (3) Business Days after delivery of the notice set forth in this Section 6.3(e) and (z) the Company has the right under such agreement to unilaterally terminate such agreement prior to the termination of this Agreement without any payment or other liability or obligation of any kind.
(f) The Company shall immediately cease, and shall cause any party acting on its behalf to cease, and cause to be terminated any existing discussions or negotiations with any Third Party conducted heretofore with respect to any of the foregoing and shall request any such parties in possession of all confidential information about heretofore furnished by the Company or any of its Subsidiaries that was furnished or any of its or their Representatives to such Person or any of its or their Representatives in accordance with the terms of any confidentiality agreement with such Person. The term "Acquisition Proposal" means any offer or proposal (whether or not in writing) (other than an offer or proposal by or on behalf of Purchaser or its affiliates) for, or any indication of interest in: (i) a transaction or series of transactions pursuant to which any Person or group of Persons acquires or would acquire beneficial ownership of more than 5% of the outstanding voting power of the Company or any of its Subsidiaries Subsidiaries, whether from the Company or pursuant to return a tender offer, exchange offer or destroy otherwise; (ii) a merger, consolidation, business combination, reorganization, share exchange, sale of substantially all assets, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries; (iii) any transaction or series of transactions which would result in any Person (or group of Persons) other than Purchaser, Merger Sub or any of their affiliates (any such information in Person, a "Third Party") acquiring 5% or more of the possession fair market value of the assets (including the capital stock of any Subsidiary of the Company) of the Company and its Subsidiaries, taken as a whole, immediately prior to such party transaction (whether by purchase of assets, acquisition of stock of a Subsidiary of the Company or otherwise); or (iv) any combination of the agent or advisor of any such partyforegoing.
Appears in 1 contract
Acquisition Proposals; Board Recommendation. (a) The Company agrees that it shall notimmediately terminate, nor and shall it permit any Company Subsidiary tocause its Subsidiaries and its and their respective officers, nor shall it authorize or knowingly permit any officerdirectors, directoremployees, employeeattorneys, investment bankeraccountants, attorneyadvisors, accountant, agent or other advisor or representative of the Company or any Company Subsidiary, directly or indirectly, representatives and agents ("REPRESENTATIVES") to (i) solicit or initiate the submission of any Acquisition Proposal, (ii) participate in any immediately terminate all existing discussions or negotiations regardingnegotiations, or furnish to if any, with any Person any information conducted heretofore with respect to, or take any other action knowingly to facilitate any inquiries or the making of any proposal that constitutes or that would reasonably be expected to lead to any to, an Acquisition Proposal, (iii) grant any waiver or release under any standstill or similar agreement with respect to any class of the Company's equity securities or (iv) enter into any agreement with respect to any Acquisition Proposal; provided, however, that if the Company receives an unsolicited Acquisition Proposal from a Third Party that the Company's Board of Directors or the Special Committee determines in good faith is or could reasonably be expected to lead to the delivery of a Superior Proposal from that Third Party, the Company may, subject to compliance with the other provisions of this Section 6.3, furnish information to, and engage in discussions and negotiations with, such Third Party with respect to its Acquisition Proposal ("Permitted Actions"). Notwithstanding the foregoing, the Board of Directors shall not take any Permitted Actions unless the Company provides Acquiror with reasonable advance notice thereof.
(b) Except as permitted by this Section 6.3(b), neither the Board of Directors of the Company, the Special Committee nor any committee thereof shall amend, withdraw, modify, change, condition or qualify in any manner adverse to Acquiror, the Company Recommendation (it being understood and agreed that a communication by the Board of Directors of the Company or the Special Committee to the Company Stockholders pursuant to Rule 14d-9(f) of the Exchange Act, or any similar communication to the Company Stockholders in connection with the making or amendment of a tender offer or exchange offer, shall not be deemed to constitute a withdrawal, modification, amendment, condition or qualification of the Company Recommendation for all purposes of this Agreement, including this Section 6.3 and Section 10.1(e)). Notwithstanding the foregoing, in the event that the Board of Directors of the Company or the Special Committee takes the actions set forth in Section 6.3(e), the Board of Directors of the Company or the Special Committee may (i) withdraw or modify in any manner adverse to Acquiror, the Company Recommendation and (ii) approve or recommend, or propose to approve or recommend, any Acquisition Proposal.
(c) Unless the Company's Board of Directors or the Special Committee has previously withdrawn, or is concurrently therewith withdrawing, the Company Recommendation in accordance with this Section 6.3, neither the Company's Board of Directors nor any committee thereof shall recommend any Acquisition Proposal to the Company Stockholders. Notwithstanding the foregoing, nothing contained in this Section 6.3(c) or elsewhere in this Agreement shall prevent the Company's Board of Directors or the Special Committee from complying with Rule 14e-2 under the Exchange Act with respect to any Acquisition Proposal or making any disclosure required by or otherwise complying with applicable Law.
(d) The Company shall notify Acquiror promptly (but in no event later than immediately demand that each Person which has heretofore executed a confidentiality agreement with or for the next Business Day) after receipt by the Company benefit of any Acquisition Proposal or any request for information relating to the Company or any of its Subsidiaries or any of its or their Representatives with respect to such Person's consideration of a possible Acquisition Proposal to immediately return or destroy (which destruction shall be certified in connection with writing by such Person to the Company) all confidential information heretofore furnished by the Company or any of its Subsidiaries or any of its or their Representatives to such Person or any of its or their Representatives.
(b) From the date of this Agreement until the Effective Time, the Company shall not, and the Company shall cause its Subsidiaries and its and their Representatives not to, (i) solicit, initiate, encourage or take any other action to facilitate any proposal, inquiry or request that constitutes, or may reasonably be expected to lead to, an Acquisition Proposal Proposal, (ii) participate or for engage in discussions or negotiations with, or disclose or provide any non-public information relating to the Company or its Subsidiaries to, or afford access to any of the properties, books or records of the Company or its Subsidiaries to, any Person that has made an Acquisition Proposal or such a proposal, inquiry or request or any of such Person's Affiliates or Subsidiaries or any of its or their Representatives, (iii) except as provided in this Section 6.2 and subject to compliance herewith, enter into any agreement or agreement in principle with any Person that has made an Acquisition Proposal or such a proposal, inquiry or request or any of such Person's Affiliates or Subsidiaries or any request for a of its or their Representatives, or (iv) grant any waiver or release under under, or fail to enforce to the maximum extent possible, any standstill or similar agreement, agreement by any Person that informs the Board of Directors of the Company or such Subsidiary that it is considering making, or who has made an Acquisition ProposalProposal or such a proposal, inquiry or request; providedPROVIDED, howeverHOWEVER, that prior to participating in any discussions or negotiations or furnishing any such informationobtaining the Company Stockholder Approval, the Company shall receive from and its Representatives may take any of the actions described in clause (ii) of this subsection (b) in respect of a Person that has made an Acquisition Proposal if, but only if, (A) such Person has submitted an executed unsolicited written Acquisition Proposal which did not result from a violation by the Company of its obligations under this Section 6.2 or Section 8.2(b) and at such time the Company has fully complied with its obligations under this Section 6.2, and the Company is proceeding in good faith with respect to its obligations under Section 8.2(b), to the extent applicable, (B) such Person has entered into a confidentiality agreement with the Company on terms that are not materially no less favorable to the Company than the Confidentiality AgreementAgreement (as defined below), (C) such Acquisition Proposal constitutes a Superior Proposal, (D) a majority of the Board of Directors of the Company has reasonably determined in good faith, following consultation with outside counsel expert in Delaware law, that taking such action is required in order for the members of the Board of Directors of the Company to comply with their fiduciary duties imposed by Delaware law, and (E) prior to disclosing or providing any such non-public information, the Company shall disclose or provide all such information to Acquiror.
(c) The Company shall immediately advise Parent and Acquiror, telephonically and in writing, of the Company's receipt of any Acquisition Proposal or any proposal, inquiry or request related to, or that may reasonably be expected to lead to, or that contemplates the possibility of, any Acquisition Proposal. The notice Company shall indicate immediately provide Parent and Acquiror, in writing and in detail, with the terms and conditions of the proposal any such Acquisition Proposal, or request such proposal, inquiry or request, and the identity of the Person making itthe same, and the Company will promptly notify Acquiror copies of any material modification of or material amendment to any Acquisition Proposal (and the terms of written materials received from such modification or amendment); provided, however, that, without limiting what changes may be material, any change in the consideration to be paid with respect to the Acquisition Proposal shall be deemed to be a material modification or a material amendmentPerson. The Company shall keep continuously update Parent and Acquiror informed, on a reasonably current basis, the status and content of any discussions or negotiations regarding any Acquisition Proposal and shall immediately inform Parent and Acquiror of any change in any of the status price, form of consideration, structure, terms and conditions or other meaningful terms of any negotiations, discussions and documents with respect to such Acquisition Proposal or request.
(e) Holding, Acquiror or Proposal. Immediately upon determination by the Company may terminate this Agreement, if the Company's Board of Directors or of the Special Committee, after consultation with its financial and legal advisors, shall have determined (i) to approve or recommend Company that an Acquisition Proposal after concluding that the Acquisition Proposal constitutes a Superior Proposal, the Company shall deliver to Parent and Acquiror a written notice (a "NOTICE OF SUPERIOR PROPOSAL") advising them that the Board of Directors of the Company has so determined, specifying in detail the terms and conditions of such Superior Proposal and the identity of the Person making such Superior Proposal, and providing Parent and Acquiror with copies of all written materials received from such Person and not previously provided.
(d) The Board of Directors of the Company has adopted a resolution recommending the adoption and approval of this Agreement and the Merger by the Company's stockholders (the "COMPANY RECOMMENDATION"), and, except as provided in the next sentence, the Board of Directors of the Company shall at all times recommend approval of this Agreement and the Merger by the Company's stockholders. The Board of Directors of the Company shall be permitted to (i) withdraw or modify in a manner adverse to Parent and Acquiror (or not to continue to make) its recommendation to its stockholders with respect to a Superior Proposal or (ii) to enter into an agreement relating to a binding agreement concerning Superior Proposal if, but only if, (a) a majority of the Acquisition Proposal; providedBoard of Directors of the Company has reasonably determined in good faith, howeverfollowing consultation with outside counsel expert in Delaware law, that taking such action is required in order for the members of the Board of Directors of the Company may not exercise its right to terminate under this Section 6.3(e)comply with their fiduciary duties imposed by Delaware law, unless (1b) the Company shall have provided to has given Parent and Acquiror at least three four (34) Business Days' prior written notice that of its Board of Directors intention to withdraw or modify such recommendation or enter into such Agreement, the Special Committee has authorized the termination Company shall have negotiated in good faith with Parent and intends Acquiror to terminate revise this Agreement pursuant to this Section 6.3(e), specifying the material terms and conditions of the Acquisition Proposal, and (2if so requested by Parent or Acquiror) Acquiror does not make, within three (3) Business Days of delivery of the notice, an offer such that a majority of the disinterested members of the Company's Board of Directors or the Special Committee determines so that the foregoing Acquisition Superior Proposal of such Person no longer constitutes a Superior Proposal. In connection , and the Board of Directors of the Company has considered in good faith any proposed changes to this Agreement proposed by Parent or Acquiror (it being understood and agreed that any amendment to the financial or other material terms of such Superior Proposal shall require a new four (4) Business Day period to afford Parent and Acquiror to negotiate with the forgoing, the Company agrees that it will not enter into an agreement which binds the Company with respect to such an Acquisition Proposal unless (x) the Company simultaneously delivers to Acquiror the notice as contemplated by the foregoing provisoabove), (y) such agreement is not binding on the Company until three (3) Business Days after delivery of the notice set forth in this Section 6.3(e) and (zc) the Company has fully complied with its obligations under this Section 6.2, and (d) simultaneously with entering into any such agreement, the right under such agreement to unilaterally terminate such agreement prior to the termination of this Agreement without any payment or other liability or obligation of any kind.
(f) The Company shall immediately cease, and pay Parent the Termination Fee in accordance with Section 10.2. Nothing in this Section 6.2 shall cause any party acting on its behalf to cease, and cause to be terminated any existing discussions or negotiations with any Third Party conducted heretofore with respect to any of the foregoing and shall request any such parties in possession of confidential information about prohibit the Company or its Subsidiaries that was furnished by or on behalf Board of Directors from taking and disclosing to the stockholders of the Company or a position with respect to an Acquisition Proposal by a Third Party to the extent required under Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act; PROVIDED THAT unless and until this Agreement is terminated in accordance with Section 10.1 hereof, nothing in this sentence shall affect the obligations of the Company and its Subsidiaries to return or destroy all such information in the possession Board of Directors under any such party or the agent or advisor other provision of any such partythis Agreement, including Section 8.2(b).
Appears in 1 contract
Acquisition Proposals; Board Recommendation. (a) The Company agrees that it shall not, nor shall it permit any Company Subsidiary to, nor shall it authorize or knowingly permit any officer, director, employee, investment banker, attorney, accountant, agent or other advisor or representative of the Company or any Company Subsidiary, directly or indirectly, to (i) solicit solicit, initiate or initiate otherwise knowingly encourage the submission of any Acquisition Proposal, (ii) participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to, or take any other action knowingly to facilitate any inquiries or the making of any proposal that constitutes constitutes, or that would reasonably be expected to lead to to, any Acquisition Proposal, (iii) grant any waiver or release under any standstill or similar agreement with respect to any class or series of the Company's equity securities to the extent such waiver or release would permit the other party or parties to such agreement to actually acquire such securities or approve any matter for purposes of Section 203 of the DGCL with respect to any Third Party (for the avoidance of doubt, a waiver or release under such agreement that solely permits a proposal or offer, including, without limitation, an Acquisition Proposal, would not violate this clause (iii)) or (iv) enter into any agreement with respect to any Acquisition Proposal; provided, however, that if the Company receives an unsolicited Acquisition Proposal from a Third Party that the Company's Board of Directors or the Special Committee determines in good faith is or could reasonably be expected to lead to the delivery of a Superior Proposal from that Third Party, the Company may, subject to compliance with all the other provisions of this Section 6.3, furnish information to, to and engage in discussions and negotiations with, with such Third Party with respect to its Acquisition Proposal ("Permitted ActionsPERMITTED ACTIONS"). Notwithstanding ) if and only to the foregoingextent that, the Board of Directors or the Special Committee, by majority vote, concludes in good faith, after consultation with outside financial advisors and legal advisors, that, as a result of such Acquisition Proposal, such Permitted Action is necessary for the Board of Directors or the Special Committee to act in a manner consistent with their respective fiduciary duties under applicable Law. The Board of Directors of the Company or the Special Committee shall not take provide Acquiror with prompt notice (but in no event later than the next day) of its engaging in any Permitted Actions unless the Company provides Acquiror with reasonable advance notice thereofActions.
(b) Except as permitted by this Section 6.3(b), neither the Board of Directors of the Company, Company nor the Special Committee nor or any other committee thereof shall amend, withdraw, modify, change, condition or qualify in any manner adverse to Acquiror, the Company Recommendation (it being understood and agreed that a communication by the Board of Directors of the Company or the Special Committee to the Company Stockholders pursuant to Rule 14d-9(f) of the Exchange Act, or any similar communication to the Company Stockholders in connection with the making or amendment of a tender offer or exchange offeroffer by any Person other than the Company or any Company Subsidiary, shall not be deemed to constitute a withdrawal, modification, amendment, condition or qualification of the Company Recommendation for all purposes of this Agreement, including this Section 6.3 and Section 10.1(e)6.3). Notwithstanding the foregoing, in the event that the Board of Directors of the Company or the Special Committee takes the actions set forth in Section 6.3(e), the Board of Directors of the Company or the Special Committee may withdraw or modify the Company Recommendation in a manner adverse to Acquiror if (i) withdraw the Company has complied in all material respects with this Section 6.3, (ii) the Company shall have notified Parent at least two Business Days in advance of its intention to effect such withdrawal or modify in any manner adverse to Acquiror, modification of the Company Recommendation and (iiiii) approve the Board of Directors or recommendthe Special Committee, by majority vote, concludes in good faith, after consultation with outside financial advisors and legal advisors, that such withdrawal or propose modification is necessary for the Board of Directors or the Special Committee to approve or recommend, any Acquisition Proposalact in a manner consistent with their respective fiduciary duties under applicable Law.
(c) Unless the Company's Board of Directors or the Special Committee has previously withdrawn, or is concurrently therewith withdrawing, the Company Recommendation in accordance with this Section 6.3, neither the Company's Board of Directors nor the Special Committee or any other committee thereof shall recommend any Acquisition Proposal to the Company Stockholders. Notwithstanding the foregoing, nothing Nothing contained in this Section 6.3(c) 6.3 or elsewhere in this Agreement shall (i) prevent the Company's Board of Directors or the Special Committee from complying with Rule 14e-2 under the Exchange Act with respect to any Acquisition Proposal or making any disclosure required by applicable Law or otherwise complying with (ii) prohibit accurate disclosure of factual information regarding the business, financial condition or results of operations of the Company, or the fact that an Acquisition Proposal has been made, the identity of the party making such Acquisition Proposal or the material terms of such Acquisition Proposal to the extent such information, facts, identity or terms are required to be disclosed under applicable Law.
(d) Notwithstanding anything in this Section 6.3 to the contrary, at any time prior to obtaining the Company Stockholder Approval, the Board of Directors of the Company or the Special Committee may, in response to a Superior Proposal that was unsolicited and that did not otherwise result from a breach of this Section 6.3, cause the Company to terminate this Agreement pursuant to Section 10.1(c)(ii) and concurrently enter into an agreement regarding such Superior Proposal; provided, however, that the Company shall not terminate this Agreement pursuant to Section 10.1(c)(ii), and any purported termination pursuant to Section 10.1(c)(ii) shall be void and of no force or effect (and the Company may not enter into such agreement regarding such Superior Proposal), unless the Company shall have complied in all material respects with all the provisions of this Section 6.3, including the notification provisions in this Section 6.3, and with all applicable requirements of Sections 10.2(b) (including the payment of the Termination Fee (as defined in Section 10.2(b)) prior to or concurrently with such termination) in connection with such Superior Proposal; and provided further, however, that the Company shall not exercise its right to terminate this Agreement pursuant to Section 10.1(c)(ii) until after the second Business Day following Parent's receipt of written notice (a "NOTICE OF SUPERIOR PROPOSAL") from the Company advising Parent that the Board of Directors of the Company or the Special Committee has received a Superior Proposal, specifying the material terms and conditions of the Superior Proposal, identifying the person making such Superior Proposal and stating that the Board of Directors of the Company or the Special Committee intends to exercise its right to terminate this Agreement pursuant to Section 10.1(c)(ii) (it being understood and agreed that, prior to any such termination taking effect, any amendment to the price or any other material term of a Superior Proposal (such amended Superior Proposal, a "MODIFIED SUPERIOR PROPOSAL") shall require a new Notice of Superior Proposal and a new two Business Day period with respect to such Modified Superior Proposal).
(e) The Company shall notify Acquiror promptly (but in no event later than the next Business Day) after receipt by the Company of any Acquisition Proposal or any request for information relating to the Company or any of its Subsidiaries Company Subsidiary in connection with an Acquisition Proposal or for access to the properties, books or records of the Company or any of its Subsidiaries Company Subsidiary or any request for a waiver or release under any standstill or similar agreement, agreement by any Person that has made, or informs the Board of Directors or the Special Committee of the Company or such Company Subsidiary that it is considering making, or has made an Acquisition Proposal; provided, however, that prior to participating in any discussions or negotiations or furnishing any such information, the Company shall receive from such Person an executed confidentiality agreement on terms that are not materially less favorable to the Company than the Confidentiality Agreement, dated as of October 14, 2002 (the "CONFIDENTIALITY AGREEMENT"), between Holding and the Company. The notice shall indicate the material terms and conditions of the proposal or request and the identity of the Person making it, and the Company will promptly notify Acquiror of any material modification of or material amendment to any Acquisition Proposal (and the terms of such modification or amendment); provided, however, that, without limiting what changes may be material, any change in the form, amount, timing or other aspects of the consideration to be paid with respect to the Acquisition Proposal shall be deemed to be a material modification or a material amendment. The Company shall keep Acquiror informed, on a reasonably current basis, of the status of any negotiations, discussions and documents with respect to such Acquisition Proposal or request.
(e) Holding, Acquiror or the Company may terminate this Agreement, if the Company's Board of Directors or the Special Committee, after consultation with its financial and legal advisors, shall have determined (i) to approve or recommend an Acquisition Proposal after concluding that the Acquisition Proposal constitutes a Superior Proposal and (ii) to enter into a binding agreement concerning the Acquisition Proposal; provided, however, that the Company may not exercise its right to terminate under this Section 6.3(e), unless (1) the Company shall have provided to Acquiror at least three (3) Business Days' prior written notice that its Board of Directors or the Special Committee has authorized the termination and intends to terminate this Agreement pursuant to this Section 6.3(e), specifying the material terms and conditions of the Acquisition Proposal, and (2) Acquiror does not make, within three (3) Business Days of delivery of the notice, an offer such that a majority of the disinterested members of the Company's Board of Directors or the Special Committee determines that the foregoing Acquisition Proposal no longer constitutes a Superior Proposal. In connection with the forgoing, the Company agrees that it will not enter into an agreement which binds the Company with respect to such an Acquisition Proposal unless (x) the Company simultaneously delivers to Acquiror the notice contemplated by the foregoing proviso, (y) such agreement is not binding on the Company until three (3) Business Days after delivery of the notice set forth in this Section 6.3(e) and (z) the Company has the right under such agreement to unilaterally terminate such agreement prior to the termination of this Agreement without any payment or other liability or obligation of any kind.
(f) The Company shall immediately cease, and shall cause any party acting on its behalf to cease, and cause to be terminated any existing discussions or negotiations with any Third Party conducted heretofore with respect to any of the foregoing and shall request any such parties in possession of confidential information about the Company or its Subsidiaries that was furnished by or on behalf of the Company or its Subsidiaries to return or destroy all such information in the possession of any such party or the agent or advisor of any such party.material
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Sources: Merger Agreement (Insignia Financial Group Inc /De/)