Acquisition Proposals Change of Recommendation. (a) At all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Effective Time, except as expressly permitted by this Section 6.2, the Company shall not, and none of its Subsidiaries nor any of the directors, officers and employees of it or its Subsidiaries shall, and the Company shall use its reasonable best efforts to instruct and cause its and its Subsidiaries’ investment bankers, attorneys, accountants and other advisors or representatives (such directors, officers, employees, investment bankers, attorneys, accountants and other advisors or representatives, collectively, “Representatives”) not to, directly or indirectly: (i) initiate, solicit, propose, knowingly encourage or knowingly facilitate any inquiry or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal (other than discussions solely to clarify such proposal or offer); (ii) engage in, continue or otherwise participate in any discussions with or negotiations relating to any Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to an Acquisition Proposal (other than to state that the terms of this provision prohibit such discussions); (iii) provide any information to any Person in connection with any Acquisition Proposal or any proposal or offer that would reasonably be expected to lead to an Acquisition Proposal; or (iv) otherwise knowingly facilitate any effort or attempt to make an Acquisition Proposal. (b) Notwithstanding anything to the contrary in Section 6.2(a), prior to the time, but not after, the Requisite Company Vote is obtained in response to an unsolicited, bona fide written Acquisition Proposal, the Company may: (i) provide information in response to a request therefor (including non-public information regarding the Company or any of its Subsidiaries) to the Person who made such Acquisition Proposal, provided that such information has previously been made available to, or is made available to, Parent prior to or concurrently with the time such information is made available to such Person and that, prior to furnishing any such information, the Company receives from the Person making such Acquisition Proposal an executed confidentiality agreement with terms not less restrictive to the other party than the terms in the Confidentiality Agreement are on Parent (it being understood that such confidentiality agreement need not prohibit the making or amending of an Acquisition Proposal to the extent such Acquisition Proposal is made directly to the Company); provided, however, that if the Person making such Acquisition Proposal is a competitor of the Company, the Company shall not provide any commercially sensitive non-public information to such Person in connection with any actions permitted by this Section 6.2(b) other than in accordance with customary “clean room” or other similar procedures designed to limit the disclosure of competitively sensitive information; and (ii) participate in any discussions or negotiations with any such Person regarding such Acquisition Proposal; in each case, if, and only if, prior to taking any action described in clause (i) or (ii) above, the Company Board determines in good faith after consultation with outside legal counsel that (A) based on the information then available and after consultation with its independent financial advisor that such Acquisition Proposal either constitutes a Superior Proposal or would reasonably be expected to result in a Superior Proposal and (B) such action is reasonably necessary in order for the directors to comply with their fiduciary duties under applicable Law. (c) The Company shall promptly (and, in any event, within 24 hours) give notice to Parent if (i) any inquiries, proposals or offers with respect to an Acquisition Proposal are received by, (ii) any information is requested in connection with any Acquisition Proposal from, or (iii) any discussions or negotiations with respect to an Acquisition Proposal are sought to be initiated or continued with, it or any of its Representatives, setting forth in such notice the name of such Person and the material terms and conditions of any proposals or offers (including, if applicable, complete copies of any written requests, proposals or offers, including proposed agreements) and thereafter shall keep Parent reasonably informed, on a current basis (and, in any event, within 24 hours), of the status and terms of any such proposals or offers (including any amendments thereto) and the status of any such discussions or negotiations, including any change in its intentions as previously notified.
Appears in 2 contracts
Samples: Merger Agreement (B. Riley Financial, Inc.), Merger Agreement (FBR & Co.)
Acquisition Proposals Change of Recommendation. (a) At all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Effective Time, except as expressly permitted by this Section 6.2, the The Company shall not, and none agrees that neither it nor any of its Subsidiaries nor any of the their respective officers, directors, officers employees and employees of it or its Subsidiaries Affiliates shall, and the Company that it shall direct and use its reasonable best efforts to instruct and cause its and its Subsidiaries’ investment bankersagents and representatives, attorneysincluding any financial advisor, accountants and other advisors attorney or representatives accountant retained by it or acting on its behalf (such officers, directors, officers, employees, investment bankersAffiliates, attorneysagents, accountants and other advisors representatives, financial advisors, attorneys or representativesaccountants, collectively, “Representatives”) not to, directly or indirectly:
, (i) initiate, solicit, propose, knowingly encourage or knowingly otherwise facilitate any inquiry inquiries or the making of any proposal or offer that constitutes, or would reasonably be expected with respect to lead to, an Acquisition Proposal (other than discussions solely to clarify such proposal or offer);
Proposal, (ii) engage in, continue or otherwise participate in any negotiations concerning, or provide any confidential information or data to, or have any discussions with or negotiations with, any Person relating to any Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to an Acquisition Proposal (other than to state that the terms of this provision prohibit such discussions);
or (iii) provide any information to any Person in connection with any Acquisition Proposal or any proposal or offer that would reasonably be expected to lead to an Acquisition Proposal; or
(iv) otherwise knowingly facilitate any effort or attempt to make or implement an Acquisition Proposal.
; provided, however, that nothing contained in this Agreement shall prevent the Company or the Company Board from (bA) Notwithstanding anything complying with Rule 14d-9 and Rule 14d-2 under the Exchange Act with respect to an Acquisition Proposal; provided, that such rules will in no way eliminate or modify the contrary in Section 6.2(a), prior effect that any action pursuant to the timesuch rules would otherwise have under this Agreement; (B) at any time prior, but not after, the Requisite Company Vote Shareholder Approval is obtained in response to an unsolicitedobtained, bona fide written Acquisition Proposal, the Company may:
(i) provide providing information in response to a request therefor (including non-public information regarding the Company or any of its Subsidiaries) to the by a Person who has made such an unsolicited bona fide written Acquisition Proposal, provided that such information has previously been made available to, or is made available to, Parent prior to or concurrently with the time such information is made available to such Person and that, prior to furnishing any such information, Proposal if the Company receives from the Person making so requesting such Acquisition Proposal information an executed confidentiality agreement with on terms not less restrictive in the aggregate to the other party Party than the terms those contained in the Confidentiality Agreement are on Parent Agreement; or (it being understood that such confidentiality agreement need not prohibit the making C) engaging in any negotiations or amending of discussions with any Person who has made an unsolicited bona fide written Acquisition Proposal if and only to the extent such Acquisition Proposal is made directly to the Company); providedthat, however, that if the Person making such Acquisition Proposal is a competitor of the Company, the Company shall not provide any commercially sensitive non-public information to such Person in connection with any actions permitted by this Section 6.2(b) other than in accordance with customary “clean room” or other similar procedures designed to limit the disclosure of competitively sensitive information; and
(ii) participate in any discussions or negotiations with any such Person regarding such Acquisition Proposal; in each case, if, and only if, prior such case referred to taking any action described in clause (iB) or (iiC) above, the Company Board determines in good faith (after consultation with outside legal counsel counsel) that (A1) based on the information then available and after consultation with its independent financial advisor that such Acquisition Proposal either constitutes a Superior Proposal or would is reasonably be expected likely to result in a Superior Proposal and (B2) the failure to take such action is reasonably necessary in order for would more likely than not violate the directors to comply with their directors’ fiduciary duties under applicable Law.
(c) Law and the Company LLC Agreement. The Company shall agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposals. The Company agrees that it will take the necessary steps to promptly (andinform the individuals referred to in the first sentence hereof of the obligations undertaken in this Section 6.2(a). The Company agrees that it will notify Parent promptly, but in no event later than the next succeeding Business Day, if any event, within 24 hours) give notice to Parent if (i) any such inquiries, proposals or offers with respect to an Acquisition Proposal are received by, (ii) any such information is requested in connection with any Acquisition Proposal from, or (iii) any such discussions or negotiations with respect to an Acquisition Proposal are sought to be initiated or continued with, it or any of its Representatives, setting forth indicating, in connection with such notice notice, the name of such Person and the material terms and conditions of any proposals proposal or offers (including, if applicable, complete copies of any written requests, proposals or offers, including proposed agreements) offer and thereafter shall keep Parent reasonably informed, on a current basis (and, in any event, within 24 hours)basis, of the status and terms of any such proposals or offers (including any amendments thereto) and the status of any such discussions or negotiations.
(b) The Company Board and each committee thereof shall not:
(i) except as expressly permitted by, and after compliance with, Section 6.2(c) hereof, withdraw, qualify or modify (or publicly propose or resolve to withdraw, qualify or modify), in a manner adverse to Parent, the Company Recommendation (a “Change of Recommendation”); or
(ii) cause or permit the Company to enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (other than a confidentiality agreement referred to in Section 6.2(a) entered into in compliance with Section 6.2(a)) (an “Alternative Acquisition Agreement”) relating to any Acquisition Proposal made to the Company.
(c) Notwithstanding anything to the contrary set forth in this Agreement, prior to the time, but not after, the Company Shareholder Approval contemplated by this Agreement is obtained, the Company Board may withdraw or adversely modify the Company Recommendation and the Special Transaction Committee may recommend to the Company Board that it withdraw or adversely modify the Company Recommendation (i) in connection with approving, recommending or otherwise declaring advisable any Superior Proposal made to the Company after the date of this Agreement or (ii) upon the occurrence of an Intervening Event, in each case, if the Company Board (upon recommendation of the Special Transaction Committee) determines in good faith, after consultation with outside counsel, that the failure to take such action would more likely than not result in a violation of the directors’ fiduciary duties under applicable Law and the Company LLC Agreement; provided, however, that no such Change of Recommendation may be made until after (i) at least three (3) Business Days following Parent’s receipt of notice from the Company advising that the Company Board intends to take such action and the basis therefor, including all necessary information under Section 6.2(a) and (ii) the Company has negotiated in good faith to permit Parent to modify this Agreement during such three (3) Business Day period. In determining whether to make a Change of Recommendation, the Company Board shall take into account any change changes to the terms of this Agreement proposed by Parent and any other information provided by Parent in its intentions as previously notifiedresponse to such notice, in each case, within the time periods specified immediately above.
(d) Any material amendment to any Acquisition Proposal will be deemed to be a new Acquisition Proposal for purposes of this Section 6.2, including with respect to the notice period referred to in this Section 6.2.
(e) For the purposes of this Agreement:
Appears in 2 contracts
Samples: Merger Agreement (JMP Group LLC), Merger Agreement (JMP Group LLC)
Acquisition Proposals Change of Recommendation. (a) At all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Effective Time, except No Solicitation or Negotiation. Except as expressly permitted by this Section 6.2, the Company shall not, and none of shall cause its Subsidiaries nor any of and the directors, directors and officers and employees of it or and its Subsidiaries shallnot to, and the Company shall instruct and use its reasonable best efforts to instruct and cause its and its Subsidiaries’ employees, investment bankers, attorneys, accountants and other advisors or representatives (such directors, officers, employees, investment bankers, attorneys, accountants and other advisors or representatives, collectively, “Representatives”) not to, directly or indirectly:
(i) initiate, solicit, propose, knowingly encourage or knowingly facilitate any inquiry or the making inquiry, proposal, indication of any proposal interest or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal (other than discussions solely to clarify such proposal or offer)Proposal;
(ii) engage in, continue or otherwise participate in any discussions with or negotiations relating to any Acquisition Proposal or any inquiry, proposal, indication of interest or offer that would reasonably be expected to lead to an Acquisition Proposal (other than to state the extent to which the terms of this provision prohibit such discussions);
(iii) provide any non-public information to any Person in connection with any Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to an Acquisition Proposal (other than to state that the terms of this provision prohibit such discussions);
(iii) provide any information to any Person in connection with any Acquisition Proposal or any proposal or offer that would reasonably be expected to lead to an Acquisition Proposal; or
(iv) otherwise knowingly facilitate subject to this Section 6.2, waive, terminate, modify or fail to enforce any effort “standstill” or attempt confidentiality obligation of any Person (other than any party hereto) with respect to make the Company or any of its Subsidiaries entered into in connection with an Acquisition Proposal.
(b) Notwithstanding anything to the contrary in Section 6.2(a), prior to the time, but not after, the Requisite Company Vote is obtained obtained, in response to an unsolicited, a bona fide written Acquisition ProposalProposal not solicited in violation of this Section 6.2, the Company may:
(i) provide information in response to a request therefor (including non-public information regarding the Company or any of its Subsidiaries) to the Person who made such Acquisition Proposal, provided that in the event such information has not previously been made available toto Parent, or is made available tothe Company shall, Parent prior to or concurrently with the time promptly (and, in any event, within 24 hours), provide such information is made available to such Person Parent and that, prior to furnishing any such information, the Company receives from the Person making such Acquisition Proposal an executed confidentiality agreement with terms not less restrictive in the aggregate to the other party than the terms in the Confidentiality Agreement are on Parent (it being understood that at such confidentiality agreement need not prohibit the making or amending of an Acquisition Proposal to the extent such Acquisition Proposal is made directly to the Company)time; provided, howeverthat the Company shall not enter into any Confidentiality Agreement with any Person subsequent to the date of this Agreement which prohibits the Company from providing any information to Parent in accordance with this Section 6.2 or otherwise prohibits the Company from complying with its obligations under this Agreement; provided, further, that if the Person making such Acquisition Proposal is a competitor of the Company, the Company shall not provide any commercially sensitive non-public information to any Person pursuant to any confidentiality agreement entered into prior to the date of this Agreement unless such Person in connection with agrees prior to receipt of such information to waive any actions permitted by this Section 6.2(b) other than provision that would prohibit the Company from providing any information to Parent in accordance with customary “clean room” this Section 6.2 or other similar procedures designed to limit otherwise prohibit the disclosure of competitively sensitive informationCompany from complying with its obligations under this Agreement; and
(ii) engage in or participate in any discussions or and/or negotiations with any such Person regarding such Acquisition Proposal; in each case, if, and only if, prior to taking any action described in clause clauses (i) or (ii) above, the Company Board determines in good faith after consultation with outside legal counsel that that, (A) based on the information then available and after consultation with its independent outside financial advisor that advisors, such Acquisition Proposal either constitutes a Superior Proposal or would could reasonably be expected to result in a Superior Proposal or a transaction that did not result from a breach of the Company’s obligations set forth in this Section 6.2 that is more favorable to the Company’s shareholders from a financial point of view than the Merger that could reasonably be expected to satisfy the criteria in clause (B) of the definition of “Superior Proposal” and (B) ), in each such case, the failure to take such action is reasonably necessary in order for would be inconsistent with the directors to comply with their directors’ fiduciary duties under applicable Law.
(c) The Company shall promptly (and, in any event, within 24 hours) give written notice to Parent if the Company or any of its Subsidiaries receives (i) any inquiriesinquiry, proposals proposal, indication of interest or offers offer with respect to an Acquisition Proposal are received byProposal, (ii) any request by any Person or group for information is requested in connection with or with respect to any Acquisition Proposal fromProposal, or (iii) any request by any Person or group for discussions or negotiations negotiations, or to initiate or continue discussions or negotiations, with respect to an Acquisition Proposal are sought to be initiated or continued with, it or any of its RepresentativesProposal, setting forth in such notice the name of such Person or group and the material terms and conditions of any proposals or offers such Acquisition Proposals (including, if applicable, complete copies of any written requestsrequest, proposals inquiry, proposal, indication of interest or offersoffer, including proposed agreementsagreements and any other written communications) and thereafter shall keep Parent reasonably informed, on a reasonably current basis (and, in any event, within 24 hours), of changes in the status and terms of any such proposals or offers (including any amendments thereto) and any changes to the status of any such discussions or negotiations, including any change in its intentions as previously notified.
(d) For purposes of this Agreement:
Appears in 1 contract
Samples: Merger Agreement
Acquisition Proposals Change of Recommendation. (a) At all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Effective Time, except as expressly permitted by this Section 6.2, the Company and Parent each shall not, and none of its respective Subsidiaries nor any of the directors, its respective directors and officers and employees of it or its Subsidiaries shall, and the Company and Parent shall use its reasonable best efforts to each instruct and cause its and its Subsidiaries’ investment bankers, attorneys, accountants and other advisors or representatives (such directors, officers, employees, investment bankers, attorneys, accountants and other advisors or representatives, collectively, “Representatives”) not to, directly or indirectly:
(i) initiate, solicit, propose, knowingly encourage or take any action to knowingly facilitate any inquiry or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal (other than discussions solely to clarify such proposal or offer)Proposal;
(ii) engage in, continue or otherwise participate in any discussions with or negotiations relating to any Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to an Acquisition Proposal (other than to state that the terms of this provision prohibit such discussions);; or
(iii) provide any non-public information to any Person in connection with any Acquisition Proposal or any proposal or offer that would reasonably be expected to lead to an Acquisition Proposal; or
(iv) otherwise knowingly facilitate any effort or attempt to make an Acquisition Proposal.
(b) Notwithstanding anything to the contrary in Section 6.2(a) or Section 6.2(g), prior to the time, but not after, in the case of the Company, the Requisite Company Vote is obtained or, in the case of Parent, the Requisite Parent Vote is obtained, in response to an unsolicited, bona fide written Acquisition ProposalProposal (that did not result from such Party’s breach of Section 6.2(a) in any material respect), the Company (including its Subsidiaries and their respective directors, officers and Representatives) or Parent (including its Subsidiaries and their respective directors, officers and Representatives), as applicable, may:
(i) contact such Person or group of Persons solely to clarify the terms and conditions thereof;
(ii) provide information in response to a general or specific request therefor (including non-public information regarding the Company it or any of its Subsidiaries) to the Person who made such Acquisition Proposal, provided that such non-public information has previously been made available to, or is made available to, Parent or the Company, as applicable, prior to or concurrently with the time such non-public information is made available to such Person and that, prior to furnishing any such non-public information, the Company or Parent, as applicable, receives from the Person making such Acquisition Proposal an executed confidentiality agreement with terms not less restrictive in the aggregate to the other party Party than the terms in the Confidentiality Agreement are on Parent or the Company, as applicable (it being understood that such confidentiality agreement need not prohibit the making or amending of an Acquisition Proposal to the extent such Acquisition Proposal is made directly to the CompanyProposal); provided, however, that if the Person making such Acquisition Proposal is a competitor of the Company, the Company shall not provide any commercially sensitive non-public information to such Person in connection with any actions permitted by this Section 6.2(b) other than in accordance with customary “clean room” or other similar procedures designed to limit the disclosure of competitively sensitive information; and
(iiiii) engage or participate in any discussions or negotiations with any such Person regarding such Acquisition Proposal; in each case, if, and only if, prior to taking any action described in clause (iii) or (iiiii) above, the Company Board or the Parent Board, as applicable, determines in good faith after consultation with outside legal counsel that (A) based on the information then available and after consultation with its independent financial advisor advisor, that such Acquisition Proposal either constitutes a Superior Proposal or would could reasonably be expected to result in a Superior Proposal and (B) the failure to take such action is reasonably necessary in order for could be inconsistent with the directors to comply with their directors’ fiduciary duties under applicable Law.
(c) The Company and Parent each shall promptly (and, in any event, within 24 hours) give notice to Parent the other Party if (i) any inquiries, proposals or offers with respect to constituting an Acquisition Proposal are received byby the Company or Parent (as applicable), (ii) any initial request for information is requested in connection with any Acquisition Proposal fromreceived by the Company or Parent (as applicable), or (iii) any initial request for discussions or negotiations with respect to an Acquisition Proposal are sought to be initiated is received by the Company or continued withParent, it or any of its Representativesas applicable, setting forth in such notice the name of such Person and the material terms and conditions of any proposals or offers (including, if applicable, complete copies of any written requests, proposals or offers, including proposed agreements) ), and thereafter shall keep Parent the other Party reasonably informed, on a reasonably current basis (and, in any event, within 24 hours), of the status and material terms of any such proposals or offers (including any amendments thereto) and the status of any such discussions or negotiations, including any material change in its intentions as previously notified.
(d) Except as permitted by Section 6.2(e) and Section 6.2(f), the Parent Board (including any committee thereof) or the Company Board (including any committee thereof), as applicable, shall not:
(i) withhold, withdraw, qualify or modify (or publicly propose or resolve to withhold, withdraw, qualify or modify) the Company Recommendation or the Parent Recommendation, as applicable, with respect to the Merger in a manner adverse to Parent or the Company, as applicable; or
(ii) approve, adopt or recommend, or publicly declare advisable or publicly propose to enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other agreement (other than a confidentiality agreement referred to in Section 6.2(b) entered into in compliance with Section 6.2(b)) relating to any Acquisition Proposal (an “Alternative Acquisition Agreement”, and any of the actions set forth in the foregoing clause (i) and this clause (ii), a “Change of Recommendation”).
(e) Notwithstanding anything to the contrary set forth in this Agreement, prior to the time, in the case of the Company, the Requisite Company Vote is obtained or, in the case of Parent, the Requisite Parent Vote is obtained, the Company Board or the Parent Board, as applicable, may effect a Change of Recommendation if the Company Board or the Parent Board, as applicable, determines in good faith, after consultation with outside counsel and its financial advisor and in compliance with this Section 6.2, that, as a result of a Superior Proposal or an Intervening Event, failure to take such action could be inconsistent with the directors’ fiduciary duties under applicable Law; provided, however, that a Change of Recommendation in response to a Superior Proposal or Intervening Event, as applicable, may not be made unless and until the Company or Parent, as applicable, has given Parent or the Company, as applicable, written notice of such action four Business Days in advance, such notice to comply in form, substance and delivery with the provisions of Section 6.2(c) and Section 9.6 of this Agreement, setting forth in writing that the Company Board or the Parent Board, as applicable, intends to consider whether to take such action and the basis therefor. After giving such notice and prior to effecting such Change of Recommendation in connection with a Superior Proposal or Intervening Event, as applicable, the Company or Parent, as applicable, shall afford the other Party the opportunity to negotiate during such four Business Day period with Parent or the Company, as applicable (to the extent Parent or the Company, as applicable, wishes to negotiate) to enable such Party to propose revisions to the terms of this Agreement as would permit the Company Board or the Parent Board, as applicable, not to effect a Change of Recommendation in connection with a Superior Proposal or Intervening Event, as applicable. At the end of such four Business Day period, prior to taking action to effect a Change of Recommendation in response to a Superior Proposal or an Intervening Event, as applicable, the Company Board or Parent Board, as applicable, shall take into account any changes to the terms of this Agreement proposed by Parent or the Company, as applicable, in writing in response to such notice, and shall have determined in good faith, after consultation with its outside legal counsel, that the Superior Proposal or Intervening Event, as applicable, would continue to constitute a Superior Proposal or Intervening Event, as applicable, if the changes to the terms of this Agreement offered in writing (if any) were to be given effect and that the failure to take such action could be inconsistent with the directors’ fiduciary duties under applicable Law. Any material amendment to any Acquisition Proposal (including any change in the amount or form of consideration) will be deemed to be a new Acquisition Proposal for purposes of Section 6.2(c) and this Section 6.2(e), except that references to four Business Days shall be deemed to be references to three Business Days (provided that the initial notice period provided for above shall not be less than four Business Days).
(f) Nothing contained in this Section 6.2 shall prohibit the Company or Parent, or any of their respective Subsidiaries or Representatives, from complying with their respective disclosure obligations under applicable Law; provided, however, that if such disclosure has the substantive effect of withdrawing or adversely modifying the Company Recommendation or the Parent Recommendation, as applicable, such disclosure shall be deemed to be a Change of Recommendation and Parent or the Company, as applicable, shall have the option to terminate this Agreement as set forth in Section 8.1(f) or Section 8.1(g), as applicable; it being understood that a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act or any statement that the Company has received a proposal and is considering such proposal shall not be deemed to be a Change of Recommendation.
(g) Further to Section 6.2(a), the Company and Parent shall each promptly end any existing discussions and negotiations conducted heretofore with any Person with respect to any Acquisition Proposal, or proposal or transaction that would reasonably be expected to lead to an Acquisition Proposal. Further, the Company and Parent shall each promptly terminate any physical and electronic data access previously granted to such Persons and request that any such Persons promptly return or destroy all confidential information concerning the Company and its Subsidiaries or Parent and its Subsidiaries, as applicable.
(h) During the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Effective Time, each of the Company and Parent shall not terminate, amend, modify or waive any provision of any confidentiality, “standstill” or similar agreement to which it or any of its Subsidiaries is a party and shall enforce, to the fullest extent permitted under applicable Law, the provisions of any such agreement, including by obtaining injunctions to prevent any breaches of such agreements and to enforce specifically the terms and provisions thereof; provided that if the Company Board or Parent Board determines in good faith, after consultation with its outside legal counsel that the failure to take such action would reasonably be likely to be inconsistent with the Company Board’s or Parent Board’s, as applicable, fiduciary duties under applicable Law, the Company or Parent, as applicable, may waive any such standstill provision solely to the extent necessary to permit a third party to make, on a confidential basis to the Company Board or Parent Board, as applicable, an Acquisition Proposal; provided that the waiving Party promptly advises the other Party that it is taking such action. Each Party represents and warrants to the other Parties that it has not taken any action that (i) would be prohibited by this Section 6.2(h) or (ii) but for the ability to take actions to avoid a potential breach of the Company Board’s or Parent Board’s, as applicable, fiduciary duties would have been prohibited by this Section 6.2(h), during the 60 days prior to the date of this Agreement.
Appears in 1 contract
Acquisition Proposals Change of Recommendation. (a) At all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Effective Time, except as expressly permitted by this Section 6.2, the Company shall not, and none of its Subsidiaries nor any of the directors, its and their respective directors and officers and employees of it or its Subsidiaries shall, and the Company shall use its reasonable best efforts to instruct and cause its and its Subsidiaries’ investment bankers, attorneys, accountants and other advisors or representatives (such directors, officers, employees, investment bankers, attorneys, accountants and other advisors or representatives, collectively, “Representatives”) not to, directly or indirectly:
(i) initiate, solicit, propose, knowingly encourage or take any action to knowingly facilitate any inquiry or the making of any proposal or offer that constitutes, or would could reasonably be expected to lead to, an Acquisition Proposal (other than discussions solely to clarify such proposal or offer)Proposal;
(ii) engage in, continue or otherwise participate in any discussions with or negotiations relating to any Acquisition Proposal or any inquiry, proposal or offer that would could reasonably be expected to lead to an Acquisition Proposal (other than to state that the terms of this provision prohibit such discussions);; or
(iii) provide any non-public information to any Person in connection with any Acquisition Proposal or any proposal or offer that would could reasonably be expected to lead to an Acquisition Proposal; or
(iv) otherwise knowingly facilitate any effort or attempt to make an Acquisition Proposal.
(b) Notwithstanding anything to the contrary in Section 6.2(a) or Section 6.2(g), prior to the time, but not after, the Requisite Company Vote is obtained obtained, in response to an unsolicited, bona fide written Acquisition ProposalProposal (that did not result from the Company’s breach of Section 6.2(a)), the Company (including its Subsidiaries and their respective directors, officers and Representatives) may:
(i) contact such Person or group of Persons solely to clarify the terms and conditions thereof;
(ii) provide information in response to a general or specific request therefor (including non-public information regarding the Company it or any of its Subsidiaries) to the Person who made such Acquisition Proposal, provided that such non-public information has previously been made available to, or is made available to, Parent prior to or concurrently with the time such non-public information is made available to such Person and that, prior to furnishing any such non-public information, the Company receives from the Person making such Acquisition Proposal an executed confidentiality agreement with terms not materially less restrictive restrictive, in the aggregate, to the other party Party than the terms in the Confidentiality Agreement are on Parent (it being understood that such confidentiality agreement need not prohibit the making or amending of an Acquisition Proposal to the extent such Acquisition Proposal is made directly to the CompanyProposal); provided, however, that if the Person making such Acquisition Proposal is a competitor of the Company, the Company shall not provide any commercially sensitive non-public information to such Person in connection with any actions permitted by this Section 6.2(b) other than in accordance with customary “clean room” or other similar procedures designed to limit the disclosure of competitively sensitive information; and
(iiiii) engage or participate in any discussions or negotiations with any such Person regarding such Acquisition Proposal; in each case, if, and only if, prior to taking any action described in clause (iii) or (iiiii) above, the Company Board determines in good faith after consultation with its financial advisor and outside legal counsel that (A) based on the information then available and after consultation with its independent financial advisor available, that (A) such Acquisition Proposal either constitutes a Superior Proposal or would could reasonably be expected to result in a Superior Proposal and (B) the failure to take such action is would reasonably necessary in order for be expected to be inconsistent with the directors to comply with directors’ exercise of their fiduciary duties under applicable Law.
(c) The Company shall promptly (and, in any event, within 24 hours) give notice to Parent if (i) any inquiries, proposals or offers with respect to constituting an Acquisition Proposal are received byby the Company (including any Acquisition Proposals that are outstanding and have not been withdrawn as of the date of this Agreement), (ii) any initial request for information is requested in connection with any Acquisition Proposal fromreceived by the Company, or (iii) any initial request for discussions or negotiations with respect to an Acquisition Proposal are sought to be initiated or continued with, it or any of its Representativesis received by the Company, setting forth in such notice the name of such Person and the material terms and conditions of any proposals or offers (including, if applicable, complete copies including a copy of any written requestsAcquisition Proposal and any material agreements or other documentation relating thereto), proposals or offers, including proposed agreements) and thereafter shall keep Parent the other Party reasonably informed, on a reasonably current basis (and, in any event, within 24 hours), ) of the status and material terms of any such proposals or offers (including any amendments thereto) and the status of any such discussions or negotiations, including any material change in its intentions as previously notified.
(d) Except as permitted by Section 6.2(e) and Section 6.2(f), the Parent Board (including any committee thereof) or the Company Board (including any committee thereof), as applicable, shall not, and Parent and the Company shall not permit their respective boards of directors to:
(i) withhold, withdraw, qualify or modify (or publicly propose or resolve to withhold, withdraw, qualify or modify) the Company Recommendation with respect to the Merger in a manner adverse to Parent (any of the actions set forth in the foregoing clause (i), a “Change of Recommendation”); or
(ii) approve, adopt or recommend, or publicly declare advisable or publicly propose to enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other agreement (other than a confidentiality agreement referred to in Section 6.2(b) entered into in compliance with Section 6.2(b)) relating to any Acquisition Proposal (an “Alternative Acquisition Agreement”).
(e) Notwithstanding anything to the contrary set forth in this Agreement, prior to the time the Requisite Company Vote is obtained, the Company Board may effect (i) a Change of Recommendation in response to the receipt of a Superior Proposal or (ii) a termination of this Agreement pursuant to Section 8.1(h) to enter into an Alternative Acquisition Agreement providing for a Superior Proposal (such termination, a “Fiduciary Termination”), in each case if and only if the Company Board determines in good faith, after consultation with outside counsel and its financial advisor and in compliance with this Section 6.2, that, as a result of a Superior Proposal, failure to take such action would reasonably be expected to be inconsistent with the directors’ exercise of their fiduciary duties under applicable Law; provided, however, that no Change of Recommendation or Fiduciary Termination may be effected unless and until the Company has given Parent written notice of such action four Business Days in advance, such notice to comply in form, substance and delivery with the provisions of Section 6.2(c) and Section 9.6 of this Agreement, setting forth in writing that the Company Board intends to take such action and the basis therefor. After giving such notice and prior to effecting such Change of Recommendation or such Fiduciary Termination, the Company shall afford Parent the opportunity to negotiate during such four Business Day period with the Company (to the extent Parent wishes to negotiate) to enable Parent to propose revisions to the terms of this Agreement as would permit the Company Board not to effect a Change of Recommendation or a Fiduciary Termination in connection with a Superior Proposal. At the end of such four Business Day period, prior to taking action to effect a Change of Recommendation or a Fiduciary Termination, the Company Board shall take into account any changes to the terms of this Agreement proposed by Parent in writing in response to such notice, and shall have determined in good faith, after consultation with its outside legal counsel, that the Superior Proposal would continue to constitute a Superior Proposal if the changes to the terms of this Agreement offered in writing (if any) were to be given effect and that the failure to take such action would reasonably be expected to be inconsistent with the directors’ exercise of their fiduciary duties under applicable Law. Any material amendment to any Acquisition Proposal (including any change in the amount or form of consideration) will be deemed to be a new Acquisition Proposal for purposes of Section 6.2(c) and this Section 6.2(e), except that references to four Business Days shall be deemed to be references to three Business Days.
(f) Nothing contained in this Section 6.2 shall prohibit the Company, Parent or any of their respective Subsidiaries or Representatives from complying with their respective disclosure obligations under applicable Law; provided, however, that if such disclosure has the substantive effect of withdrawing or adversely modifying the Company Recommendation, such disclosure shall be deemed to be a Change of Recommendation and Parent shall have the option to terminate this Agreement as set forth in Section 8.1(g); it being understood that a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act or any statement that a Party has received a proposal and is considering such proposal shall not be deemed to be a Change of Recommendation. For the avoidance of doubt, a factually accurate public statement that describes a Party’s receipt of an Acquisition Proposal and the operation of this Agreement with respect thereto shall not be deemed to be a Change of Recommendation of the Party issuing such statement.
(g) Further to Section 6.2(a), the Company shall promptly end any existing discussions and negotiations conducted heretofore with any Person with respect to any Acquisition Proposal, or proposal or transaction that would reasonably be expected to lead to an Acquisition Proposal. Further, the Company shall promptly terminate any physical and electronic data access previously granted to such Persons and request that any such Persons promptly return or destroy all confidential information concerning the Company and its Subsidiaries.
(h) During the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Effective Time, the Company shall not terminate, amend, modify or waive any provision of any confidentiality, “standstill” or similar agreement to which it or any of its Subsidiaries is a party and shall enforce, to the fullest extent permitted under applicable Law, the provisions of any such agreement, including by obtaining injunctions to prevent any breaches of such agreements and to enforce specifically the terms and provisions thereof; provided, that if the Company Board determines in good faith, after consultation with its outside legal counsel that the failure to take such action would reasonably be expected to be inconsistent with the Company Board’s fiduciary duties under applicable Law, the Company may waive any such standstill provision solely to the extent necessary to permit a third party to make, on a confidential basis to the Company Board, an Acquisition Proposal; provided, further, that the Company promptly (and, in any event, within 24 hours) advises Parent that it is taking such action. The Company represents and warrants to Parent that it has not taken any action that (i) would be prohibited by this Section 6.2(h) or (ii) but for the ability to take actions to avoid a potential breach of the Company Board’s fiduciary duties would have been prohibited by this Section 6.2(h), during the 60 days prior to the date of this Agreement.
(i) The approval by the Company Board for purposes of causing Section 203 of the DGCL and any other Takeover Statute to be inapplicable to the Merger and the other transactions contemplated by this Agreement shall be irrevocable and unconditional and no Change of Recommendation by the Company Board or any other action shall change such approval.
Appears in 1 contract
Acquisition Proposals Change of Recommendation. (a) At all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Effective Time, except as expressly permitted by this Section 6.2, the Company shall not, and none of its Subsidiaries nor any of the directors, its and their respective directors and officers and employees of it or its Subsidiaries shall, and the Company shall use its reasonable best efforts to instruct and cause its and its Subsidiaries’ investment bankers, attorneys, accountants and other advisors or representatives (such directors, officers, employees, investment bankers, attorneys, accountants and other advisors or representatives, collectively, “Representatives”) not to, directly or indirectly:
(i) initiate, solicit, propose, knowingly encourage or take any action to knowingly facilitate any inquiry or the making of any proposal or offer that constitutes, or would could reasonably be expected to lead to, an Acquisition Proposal (other than discussions solely to clarify such proposal or offer)Proposal;
(ii) engage in, continue or otherwise participate in any discussions with or negotiations relating to any Acquisition Proposal or any inquiry, proposal or offer that would could reasonably be expected to lead to an Acquisition Proposal (other than to state that the terms of this provision prohibit such discussions);; or
(iii) provide any non-public information to any Person in connection with any Acquisition Proposal or any proposal or offer that would could reasonably be expected to lead to an Acquisition Proposal; or
(iv) otherwise knowingly facilitate any effort or attempt to make an Acquisition Proposal.
(b) Notwithstanding anything to the contrary in Section 6.2(a) or Section 6.2(g), prior to the time, but not after, the Requisite Company Vote is obtained obtained, in response to an unsolicited, bona fide written Acquisition ProposalProposal (that did not result from the Company’s breach of Section 6.2(a)), the Company (including its Subsidiaries and their respective directors, officers and Representatives) may:
(i) contact such Person or group of Persons solely to clarify the terms and conditions thereof;
(ii) provide information in response to a general or specific request therefor (including non-public information regarding the Company it or any of its Subsidiaries) to the Person who made such Acquisition Proposal, provided that such non-public information has previously been made available to, or is made available to, Parent prior to or concurrently with the time such non-public information is made available to such Person and that, prior to furnishing any such non-public information, the Company receives from the Person making such Acquisition Proposal an executed confidentiality agreement with terms not materially less restrictive restrictive, in the aggregate, to the other party Party than the terms in the Confidentiality Agreement are on Parent (it being understood that such confidentiality agreement need not prohibit the making or amending of an Acquisition Proposal to the extent such Acquisition Proposal is made directly to the CompanyProposal); provided, however, that if the Person making such Acquisition Proposal is a competitor of the Company, the Company shall not provide any commercially sensitive non-public information to such Person in connection with any actions permitted by this Section 6.2(b) other than in accordance with customary “clean room” or other similar procedures designed to limit the disclosure of competitively sensitive information; and
(iiiii) engage or participate in any discussions or negotiations with any such Person regarding such Acquisition Proposal; in each case, if, and only if, prior to taking any action described in clause (iii) or (iiiii) above, the Company Board determines in good faith after consultation with its financial advisor and outside legal counsel that (A) based on the information then available and after consultation with its independent financial advisor available, that (A) such Acquisition Proposal either constitutes a Superior Proposal or would could reasonably be expected to result in a Superior Proposal and (B) such action is reasonably necessary in order for the directors to comply with their fiduciary duties under applicable Law.
(c) The Company shall promptly (and, in any event, within 24 hours) give notice to Parent if (i) any inquiries, proposals or offers with respect to an Acquisition Proposal are received by, (ii) any information is requested in connection with any Acquisition Proposal from, or (iii) any discussions or negotiations with respect to an Acquisition Proposal are sought to be initiated or continued with, it or any of its Representatives, setting forth in such notice the name of such Person and the material terms and conditions of any proposals or offers (including, if applicable, complete copies of any written requests, proposals or offers, including proposed agreements) and thereafter shall keep Parent reasonably informed, on a current basis (and, in any event, within 24 hours), of the status and terms of any such proposals or offers (including any amendments thereto) and the status of any such discussions or negotiations, including any change in its intentions as previously notified.
Appears in 1 contract
Samples: Merger Agreement
