Actions of the Company. (a) Schedule 14D-9. (i) On or as promptly as practicable after the Offer Commencement Date, the Company shall file with the SEC and, following or contemporaneously with the initial dissemination of the Offer Documents to holders of Company Common Stock to the extent required by applicable federal securities laws, disseminate to holders of Company Common Stock a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any amendments or supplements thereto, the “Schedule 14D-9”) that, subject to Section 6.3 shall (i) contain the unanimous recommendation of the Company Board that stockholders of the Company tender their shares of Company Common Stock pursuant to the Offer (the “Company Board Recommendation”), (ii) contain a notice of appraisal rights in compliance with Section 262(d) of the DGCL, (iii) set the Stockholder List Date as the record date for purposes of receiving the notice required by Section 262(d)(2) of the DGCL, and (iv) not contain any untrue statement of a material fact or omission of a material fact necessary in order to make the statements made therein, in light of the circumstances under which they are made, not misleading. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 (including any amendment or supplement thereto) prior to the filing thereof with the SEC or the dissemination thereof to holders of Company Common Stock, and the Company shall give reasonable and good faith consideration to any such comments made by Parent or its counsel. The Company shall promptly provide Parent and its counsel with a copy of any written comments (and a summary of any oral comments) received by the Company (or its counsel) from the SEC or its staff with respect to the Schedule 14D-9. The Company shall (A) respond promptly to any comments of the SEC or its staff with respect to the Schedule 14D-9, (B) give Parent and its counsel a reasonable opportunity (to the extent practicable) to review and comment on any response to such comments provided to the SEC or its staff and participate in the formulation of any response to such comments of the SEC or its staff, including the opportunity to participate in any discussions with the SEC or its staff concerning such comments, and (C) give reasonable and good faith consideration to any such comments made in respect of any such proposed responses. (ii) To the extent required by the applicable requirements of the Exchange Act and the listing requirements of Nasdaq, (i) each of Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Schedule 14D-9 if such information shall have become false or misleading in any material respect, and (ii) the Company shall take all steps necessary to promptly cause the Schedule 14D-9, as supplemented or amended to correct such information, to be filed with the SEC and to be disseminated to holders of Company Common Stock. Parent and Merger Sub shall promptly furnish to the Company all information concerning Parent or Merger Sub that may be reasonably requested by the Company in connection with any action contemplated by this Section 2.3(a)(ii).
Appears in 4 contracts
Samples: Merger Agreement (Harmony Biosciences Holdings, Inc.), Merger Agreement (Harmony Biosciences Holdings, Inc.), Merger Agreement (Zynerba Pharmaceuticals, Inc.)
Actions of the Company. (a) Schedule 14D-9.
(i) On or as promptly as practicable after the date the Offer Commencement DateDocuments are first filed with the SEC, the Company shall file with the SEC and, and (following or contemporaneously with the initial dissemination of the Offer Documents to holders of Company Common Stock and Company Series A Preferred Stock, and subject to the extent required by applicable federal securities laws, final sentence of Section 2.3(b)) disseminate to holders of Company Common Stock and Company Series A Preferred Stock a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any amendments or supplements thereto, the “Schedule 14D-9”) that, subject to Section 6.3 2.3(d), shall (i) contain the unanimous recommendation of the Company Board that stockholders of the Company tender their shares of Company Common Stock and Company Series A Preferred Stock pursuant to the Offer (the “Company Board Recommendation”), (ii) contain a notice of appraisal rights in compliance with Section 262(d) of the DGCL, (iii) set the Stockholder List Date as the record date for purposes of receiving the notice required by Section 262(d)(2) of the DGCL, and (iv) not contain any untrue statement of a material fact or omission of a material fact necessary in order to make the statements made therein, in light of the circumstances under which they are made, not misleading. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 (including any amendment or supplement thereto) prior to the filing thereof with the SEC or and/or the dissemination thereof to holders of Company Common Stock and Company Series A Preferred Stock; provided, and however, that the Company shall need not give reasonable Parent and good faith consideration its counsel such opportunity to review and comment in connection with any amendment or supplement to the Schedule 14D-9 that relates to any such comments made by Parent Acquisition Proposal or its counselany Change in Recommendation. The Company shall promptly provide Parent and its counsel with a copy or a description of any written comments (and a summary of any oral comments) received by the Company (or its counsel) from the SEC or its staff with respect to the Schedule 14D-9. The Company shall (A) respond promptly to any comments of the SEC or its staff with respect to the Schedule 14D-9, (B) 14D-9 and give Parent and its counsel a reasonable opportunity (to the extent practicable) to review and comment on any response to such comments provided to the SEC or its staff staff; provided, however, that the Company need not give Parent and participate in the formulation of any response to its counsel such comments of the SEC or its staff, including the opportunity to participate review and comment in connection with any discussions with the SEC such response or its staff concerning such comments, and (C) give reasonable and good faith consideration comments that relate to any such comments made Acquisition Proposal or any Change in respect of any such proposed responsesRecommendation.
(iib) To the extent required by the applicable requirements of the Exchange Act and the listing requirements of Nasdaqrules and regulations thereunder, (i) each of Parent, Merger Acquisition Sub and the Company shall promptly correct any information provided by it for use in the Schedule 14D-9 if such information shall have become false or misleading in any material respect, and (ii) the Company shall take all steps necessary to promptly cause the Schedule 14D-9, as supplemented or amended to correct such information, to be filed with the SEC and and, subject to the final sentence of this Section 2.3(b), to be disseminated to holders of Company Common Stock and Company Series A Preferred Stock. Parent and Merger Acquisition Sub shall promptly furnish to the Company all information concerning Parent or Merger Acquisition Sub that may be reasonably requested by the Company in connection with any action contemplated by this Section 2.3(a)(ii2.3(b). To the extent requested by the Company, Parent shall cause the Schedule 14D-9 and any supplement or amendment thereto to be mailed or otherwise disseminated to the holders of Company Common Stock and Company Series A Preferred Stock together with the Offer Documents disseminated to the holders of Company Common Stock and Company Series A Preferred Stock.
(c) Neither the Company Board nor any committee thereof shall, except as permitted by Section 2.3(d) or Section 6.2: (i) withdraw, modify, amend or qualify, in a manner adverse to Parent and Acquisition Sub, the Company Board Recommendation, (ii) approve, recommend or declare advisable any Acquisition Proposal, (iii) fail to include the Company Board Recommendation in the Schedule 14D-9, (iv) if any Acquisition Proposal (other than an Acquisition Proposal in the circumstances described in clause (v) below) has been made public, fail to reaffirm the Company Board Recommendation upon request of Parent within five (5) Business Days upon receipt of a request from Parent to do so; provided, that, Parent may make such request only once with respect to such Acquisition Proposal unless such Acquisition Proposal is subsequently materially modified in which case Parent may make such request once each time such material modification is made, (v) fail to recommend against any Acquisition Proposal that is a tender offer or exchange offer subject to Regulation 14D under the Exchange Act within ten (10) Business Days after the commencement of such tender offer or exchange offer, (vi) publicly propose or publicly announce an intention to take any of the foregoing actions (any action described in clause “(i)” or clause “(vi)” being referred to as a “Change in Recommendation”), or (vii) cause the Company to enter into any letter of intent, memorandum of understanding, agreement in principle or contract (other than a confidentiality agreement entered into in compliance with Section 6.2(a)) contemplating an Acquisition Proposal (any such contract, an “Alternative Acquisition Agreement”) or otherwise resolve or agree to do so.
(d) Notwithstanding anything to the contrary contained in this Agreement, at any time prior to the Acceptance Time, the Company Board may:
(i) make a Change in Recommendation in response to an Acquisition Proposal and/or cause the Company to terminate this Agreement pursuant to Section 8.1(f) to enter into an Alternative Acquisition Agreement concerning an Acquisition Proposal if (and prior to taking such action): (A) such Acquisition Proposal did not result from a material breach of Section 6.2(a); (B) the Company Board determines in good faith, after consultation with the Company’s outside legal counsel and its financial advisor, (1) that such Acquisition Proposal would, if this Agreement or the Offer were not amended or an alternative transaction with Parent were not entered into, constitute a Superior Proposal and (2) that in light of such Acquisition Proposal, a failure to make a Change in Recommendation and/or to cause the Company to terminate this Agreement pursuant to Section 8.1(f) to enter into an Alternative Acquisition Agreement concerning such Acquisition Proposal would be inconsistent with the Company Board’s fiduciary obligations to the Company’s stockholders under applicable Laws; (C) the Company delivers to Parent a written notice (the “Superior Proposal Notice”) stating that the Company Board intends to take such action and (in the event the Company Board contemplates causing the Company to terminate this Agreement and enter into an Alternative Acquisition Agreement, including a copy of such Alternative Acquisition Agreement) specifying in reasonable detail the reasons therefor, including all required information under Section 6.2(b) (which notice shall not constitute a Change in Recommendation); (D) during the five (5) Business Day period commencing on the date of Parent’s receipt of such Superior Proposal Notice (as may be renewed pursuant to clause “(F)” below, the “Notice Period”), the Company shall, and shall cause its financial advisors, legal counsel and its representatives to, negotiate with Parent in good faith during the Notice Period (to the extent Parent desires to negotiate) regarding a possible amendment of this Agreement or the Offer or a possible alternative transaction so that the Acquisition Proposal that is the subject of the Superior Proposal Notice ceases to be a Superior Proposal; (E) after the expiration of the Notice Period, the Company Board shall have determined in good faith, after consultation with its outside legal counsel and its financial advisor, and after taking into account any amendments to this Agreement and the Offer that Parent and Acquisition Sub have irrevocably agreed in writing to make as a result of the negotiations contemplated by clause “(D)” above, that (1) such Acquisition Proposal constitutes a Superior Proposal, and (2) the failure to make a Change in Recommendation and/or terminate this Agreement pursuant to Section 8.1(f) to enter into such Alternative Acquisition Agreement would be inconsistent with the Company Board’s fiduciary obligations to the Company’s stockholders under applicable Laws; and (F) in the event of any material amendment to the terms of any Superior Proposal (including any financial terms), the Company shall, in each case, have delivered to Parent an additional notice consistent with that described in clause “(C)” above and a new Notice Period under this Section 2.3(d)(i) shall commence, during which time the Company shall be required to comply with the requirements of this Section 2.3(d)(i) anew with respect to such additional notice, except that such Notice Period shall be two (2) Business Days instead of five (5) Business Days; or
(ii) make a Change in Recommendation not related to an Acquisition Proposal if (and prior to taking such action): (A) any Change in Circumstances arises; (B) the Company Board determines in good faith, after consultation with its outside legal counsel and its financial advisor, that, in light of such Change in Circumstances, a failure to effect a Change in Recommendation would be inconsistent with the Company Board’s fiduciary obligations to the Company’s stockholders under applicable Laws; (C) the Company delivers to Parent a written notice (the “Change in Circumstances Notice”) stating that the Company Board intends to effect a Change in Recommendation and specifying in reasonable detail the facts and circumstances causing such Change in Recommendation to be necessary, and such Change in Recommendation is not effected prior to the fifth Business Day after Parent receives from the Company the Change in Circumstances Notice; (D) during such five (5) Business Day period commencing on the date of Parent’s receipt of the Change in Circumstances Notice (as may be renewed pursuant to clause “(F)” below, the “Change in Circumstances Notice Period”), if requested by Parent, the Company engages in good faith negotiations with Parent to amend this Agreement or the Offer or enter into an alternative transaction so that a Change in Recommendation would no longer be necessary; (E) after the expiration of the Change in Circumstances Notice Period, the Company Board determines in good faith, after consultation with its outside legal counsel and its financial advisor and after taking into account any amendments to this Agreement and the Offer that Parent and Acquisition Sub have irrevocably agreed in writing to make as a result of the negotiations contemplated by clause “(D)” above, that, in light of such Change in Circumstances, a failure to effect a Change in Recommendation would be inconsistent with the Company Board’s fiduciary obligations to the Company’s stockholders under applicable Laws; and (F) in the event of any material change to the facts and circumstances specified by the Company pursuant to clause “(C)” above, the Company shall, in each case, have delivered to Parent an additional notice consistent with that described in clause “(C)” above and a new Change in Circumstances Notice Period under this Section 2.3(d)(ii) shall commence, during which time the Company shall be required to comply with the requirements of this Section 2.3(d)(ii) anew with respect to such additional notice, except that such Change in Circumstances Notice Period shall be two (2) Business Days instead of five (5) Business Days.
(e) In connection with the Offer, the Company shall instruct its transfer agent to furnish to Acquisition Sub a list, as of the most recent practicable date, of all record and beneficial holders of Company Common Stock and Company Series A Preferred Stock and their addresses, as well as mailing labels containing such names and addresses. The Company will furnish Acquisition Sub with such additional information (including any security position listings in the Company’s possession) and assistance as Acquisition Sub may reasonably request for purposes of communicating the Offer to the holders of Company Common Stock and Company Series A Preferred Stock. All information furnished in accordance with this Section 2.3(e) shall be held in confidence by Parent and Acquisition Sub in accordance with the requirements of the Confidentiality Agreement, and shall be used by Parent and Acquisition Sub only in connection with the communication of the Offer to the holders of Company Common Stock and Company Series A Preferred Stock.
Appears in 3 contracts
Samples: Merger Agreement, Merger Agreement (Franklin UK Bidco LTD), Merger Agreement (Planet Payment Inc)
Actions of the Company. (a) Schedule 14D-9The Company hereby consents to the Offer and represents that its Board of Directors, at a meeting duly called and held, has unanimously (i) determined that this Agreement and the transactions contemplated hereby, including the Offer and the Merger, are fair to and in the best interests of the Company and its stockholders, (ii) adopted and approved, and declared advisable, this Agreement and the transactions contemplated hereby, including the Offer and the Merger, in accordance with the requirements of the Delaware General Corporation Law (“DGCL”), (iii) approved and adopted an amendment to the Company Rights Agreement to render the Company Rights inapplicable to this Agreement, the Tender and Support Agreement and the transactions contemplated hereby and thereby, including the Offer and the Merger, and (iv) subject to Section 5.2, resolved to recommend acceptance of the Offer (the “Offer Recommendation”) and approval and adoption of this Agreement and the Merger (the “Merger Recommendation”) by the Company’s stockholders. The Company hereby consents to the inclusion of the determinations and approvals described in clauses (i) through (iii) above in the Offer Documents and, to the extent that no Company Adverse Recommendation Change shall have occurred in accordance with Section 5.2, the Company hereby consents to the inclusion of the Offer Recommendation and the Merger Recommendation in the Offer Documents (it being understood that such consent shall not be deemed to limit the Company’s Board of Directors rights under Section 5.2); provided, further, that if there has been a Company Adverse Recommendation Change, such change shall be reflected in the Offer Documents or amendments or supplements thereto. The Company has been advised that all of its directors and executive officers who own Company Shares intend either to tender their shares of Company Shares pursuant to the Offer or to vote in favor of the Merger. The Company shall, or shall request its transfer agent to, promptly furnish Parent with a list of its stockholders, mailing labels and any available listing or computer file containing the names and addresses of all record holders of Company Shares and lists of securities positions of Company Shares held in stock depositories, in each case true and correct as of the most recent practicable date, and shall provide to Parent such additional information (including updated lists of stockholders, mailing labels and lists of securities positions) and such other assistance as Parent may reasonably request in connection with disseminating the Offer Documents to the Company’s stockholders. Subject to applicable Legal Requirements and except for such actions as are reasonably necessary to disseminate the Offer Documents and otherwise to perform their obligations hereunder, including specifically the actions undertaken by any information agent employed in connection with the Offer, Parent and Acquisition Sub shall hold all information and documents provided to it under this Section 1.3(a) in confidence in accordance with the Confidentiality Agreement, and shall use such information and documents only in connection with the Offer, and if this Agreement shall have been terminated, Parent and Acquisition Sub shall deliver to the Company or destroy (and provide a certification of an officer of Parent certifying as to such destruction) all such information and documents (and copies thereof).
(ib) On or as promptly As soon as practicable after on the Offer Commencement DateDate following the filing by Parent and Acquisition Sub of the Offer Documents with the SEC, the Company shall file with the SEC and, following or contemporaneously with the initial dissemination of the Offer Documents and disseminate to holders of shares of Company Common Stock Shares, in each case as and to the extent required by applicable U.S. federal securities laws, disseminate to holders of Company Common Stock a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any amendments or supplements thereto, the “Schedule 14D-9”) that, subject to Section 6.3 5.2, shall reflect the recommendations of the Company’s Board of Directors referred to in Section 1.3(a), clauses (i) contain through (iv). The Company agrees promptly to correct the unanimous recommendation of the Company Board that stockholders of the Company tender their shares of Company Common Stock pursuant Schedule 14D-9 if and to the Offer (extent that it is necessary to do so such that the “Company Board Recommendation”), (ii) contain a notice of appraisal rights in compliance with Section 262(d) of the DGCL, (iii) set the Stockholder List Date as the record date for purposes of receiving the notice required by Section 262(d)(2) of the DGCL, and (iv) Schedule 14D-9 shall not contain any an untrue statement of a material fact or omission of a omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they are were made, not misleading (and Parent and Acquisition Sub, with respect to information supplied by it for use in the Schedule 14D-9, shall promptly notify the Company of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become necessary such that the Schedule 14D-9 shall not contain an untrue statement of material fact or omit to state any material fact required to be stated therein necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The Company agrees to cause the Schedule 14D-9 as so corrected to be filed with the SEC and to be disseminated to holders of shares of Company Shares, in each case as and to the extent required by applicable U.S. federal securities laws or the rules or regulations of the NYSE. Without limiting the generality of the foregoing, Parent and Acquisition Corp shall furnish to the Company such information, if any, relating to Parent and Acquisition Sub required by the Exchange Act to be set forth in the Schedule 14D-9. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 (including any amendment or supplement thereto) prior to the filing thereof each time before it is filed with the SEC or the dissemination thereof to holders of Company Common StockSEC, and the Company shall give reasonable and good faith consideration to any such comments made by Parent or its Parent, Acquisition Sub and their counsel. The Company shall promptly provide Parent Parent, Acquisition Sub and their counsel with (i) any comments or other communications, whether written or oral, that Company or its counsel with a copy of any written comments (and a summary of any oral comments) received by the Company (or its counsel) may receive from time to time from the SEC or its staff with respect to the Schedule 14D-9. The Company shall 14D-9 promptly after receipt of those comments or other communications and (Aii) respond promptly to any comments of the SEC or its staff with respect to the Schedule 14D-9, (B) give Parent and its counsel a reasonable opportunity (to the extent practicable) to review and comment on any response to such comments provided to the SEC or its staff and participate in the formulation of any response to such comments of the SEC or its staff, including the opportunity to participate in any discussions with the SEC or its staff concerning such comments, Company’s response to those comments and to provide comments on that response (C) give to which reasonable and good faith consideration to any such comments made in respect of any such proposed responses.
(ii) To the extent required shall be given), including by the applicable requirements of the Exchange Act and the listing requirements of Nasdaq, (i) each of Parent, Merger Sub and participating with the Company shall promptly correct any information provided by it for use in the Schedule 14D-9 if such information shall have become false or misleading its counsel in any material respect, and (ii) the Company shall take all steps necessary to promptly cause the Schedule 14D-9, as supplemented discussions or amended to correct such information, to be filed meetings with the SEC and to be disseminated to holders of Company Common Stock. Parent and Merger Sub shall promptly furnish to the Company all information concerning Parent or Merger Sub that may be reasonably requested by the Company in connection with any action contemplated by this Section 2.3(a)(ii)SEC.
Appears in 2 contracts
Samples: Merger Agreement (Gateway Inc), Merger Agreement (Acer Inc)
Actions of the Company. (a) Schedule 14D-9The Company hereby approves of and consents to the Offer.
(ib) On or as promptly as practicable after the Offer Commencement Date, the Company shall file with the SEC and, and (following or contemporaneously with the initial dissemination of the Offer Documents to holders of Company Common Stock Shares to the extent required by applicable federal securities laws, ) disseminate to holders of Company Common Stock Shares a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any amendments or supplements thereto, the “Schedule 14D-9”) that, subject to Section 6.3 5.3(c), shall (i) contain the unanimous recommendation of the Company Board that stockholders of the Recommendation. Except in connection with a Company tender their shares of Company Common Stock pursuant to the Offer (the “Company Board Recommendation”Change in Recommendation made in accordance with Section 5.3(c), (ii) contain a notice of appraisal rights in compliance with Section 262(d) of the DGCL, (iii) set the Stockholder List Date as the record date for purposes of receiving the notice required by Section 262(d)(2) of the DGCL, and (iv) not contain any untrue statement of a material fact or omission of a material fact necessary in order to make the statements made therein, in light of the circumstances under which they are made, not misleading. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 (including any amendment or supplement thereto) prior to the filing thereof with the SEC or the dissemination thereof to holders of Company Common Stock, and the Company shall give reasonable and good faith consideration to any such comments made by Parent or its counselSEC. The Company shall shall: (i) promptly provide Parent and its counsel with a copy of any written comments (and a summary description of any oral comments) comments received by the Company (or its counsel) from the SEC or its staff with respect to the Schedule 14D-9. The Company shall ; (Aii) respond promptly to any comments of the SEC or its staff except with respect to the Schedule 14D-9disclosure made relating to a Company Change in Recommendation in accordance with Section 5.3(c), (B) give Parent and its counsel a reasonable opportunity (to the extent practicable) to review and comment on any response to formulated in connection with such comments provided prior to the SEC or its staff and participate in the formulation of any response to such comments of the SEC or its staff, including the opportunity to participate in any discussions filing thereof with the SEC or its staff concerning such comments, SEC; and (Ciii) give reasonable and good faith consideration respond promptly to any such comments made in respect of any such proposed responses.
(ii) comments. To the extent required by the applicable requirements of the Exchange Act and the listing requirements of Nasdaq, rules and regulations thereunder: (iA) each of Parent, Merger Sub Purchaser and the Company shall promptly correct any information provided by it for use in the Schedule 14D-9 if such information shall have become false or misleading in any material respect, ; and (iiB) the Company shall take all steps necessary to promptly cause the Schedule 14D-9, as supplemented or amended to correct such information, to be filed with the SEC and to be disseminated to holders of Company Common StockSEC. Parent and Merger Sub Purchaser shall promptly furnish to the Company all information concerning Parent or Merger Sub Purchaser that may be reasonably requested by the Company in connection with any action contemplated by this Section 2.3(a)(ii1.3(b). To the extent requested by the Company, Parent shall cause the Schedule 14D-9 to be mailed or otherwise disseminated to the Company’s stockholders together with the Offer Documents disseminated to the Company’s stockholders.
(c) In connection with the Offer, the Company shall instruct its transfer agent to furnish to Purchaser a list, as of the most recent practicable date, of the record holders of Company Shares and their addresses, as well as mailing labels containing such names and addresses. The Company will furnish Purchaser with such additional information (including any security position listings in the Company’s possession or reasonably obtainable by the Company) and assistance as Purchaser may reasonably request for purposes of communicating the Offer to the record holders and beneficial holders of Company Shares. All information furnished in accordance with this Section 1.3(c) shall be held in confidence by Parent and Purchaser in accordance with the requirements of the letter agreement, dated May 11, 2006, between Parent and the Company, as amended on June 2, 2006 (the “Confidentiality Agreement”), and shall be used by Parent and Purchaser only in connection with the communication of the Offer and the dissemination of any proxy or information statement relating to the Merger to the holders of Company Shares.
Appears in 2 contracts
Samples: Merger Agreement (Beckman Coulter Inc), Merger Agreement (Biosite Inc)
Actions of the Company. (a) Schedule 14D-9.
(i) On or as promptly as practicable after the Offer Commencement Date, the Company shall file with the SEC and, and (following or contemporaneously with the initial dissemination of the Offer Documents to holders of Company Common Stock Stock, and subject to the extent required by applicable federal securities laws, final sentence of Section 2.3(b)) disseminate to holders of Company Common Stock a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any amendments or supplements thereto, the “Schedule 14D-9”) that, subject to Section 6.3 2.3(d), shall (i) contain the unanimous recommendation of the Company Board that stockholders of the Company tender their shares of Company Common Stock pursuant to the Offer (the “Company Board Recommendation”), (ii) contain and a notice of appraisal rights in compliance with Section 262(d) 262 of the DGCL, (iii) set the Stockholder List Date as the record date for purposes of receiving the notice required by Section 262(d)(2) of the DGCL, and (iv) not contain any untrue statement of a material fact or omission of a material fact necessary in order to make the statements made therein, in light of the circumstances under which they are made, not misleading. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 (including any amendment or supplement thereto) prior to the filing thereof with the SEC or and/or the dissemination thereof to holders of Company Common Stock; provided, and however, that the Company shall need not give reasonable Parent and good faith consideration its counsel such opportunity to review and comment in connection with any amendment or supplement to the Schedule 14D-9 that relates to any such comments made by Parent Acquisition Proposal or its counselany Change in Recommendation. The Company shall promptly provide Parent and its counsel with a copy or a description of any written comments (and a summary of any oral comments) received by the Company (or its counsel) from the SEC or its staff with respect to the Schedule 14D-9. The Company shall (A) respond promptly to any comments of the SEC or its staff with respect to the Schedule 14D-9, (B) 14D-9 and give Parent and its counsel a reasonable opportunity (to the extent practicable) to review and comment on any response to such comments provided to the SEC or its staff staff; provided, however, that the Company need not give Parent and participate in the formulation of any response to its counsel such comments of the SEC or its staff, including the opportunity to participate review and comment in connection with any discussions with the SEC such response or its staff concerning such comments, and (C) give reasonable and good faith consideration comments that relate to any such comments made Acquisition Proposal or any Change in respect of any such proposed responsesRecommendation.
(iib) To the extent required by the applicable requirements of the Exchange Act and the listing requirements of Nasdaqrules and regulations thereunder, (i) each of Parent, Merger Acquisition Sub and the Company shall promptly correct any information provided by it for use in the Schedule 14D-9 if such information shall have become false or misleading in any material respect, and (ii) the Company shall take all steps necessary to promptly cause the Schedule 14D-9, as supplemented or amended to correct such information, to be filed with the SEC and and, subject to the final sentence of this Section 2.3(b), to be disseminated to holders of Company Common Stock. Parent and Merger Acquisition Sub shall promptly furnish to the Company all information concerning Parent or Merger Acquisition Sub that may be reasonably requested by the Company in connection with any action contemplated by this Section 2.3(a)(ii2.3(b). To the extent requested by the Company, Parent shall cause the Schedule 14D-9 and any supplement or amendment thereto to be mailed or otherwise disseminated to the holders of Company Common Stock together with the Offer Documents disseminated to the holders of Company Common Stock.
(c) Neither the Company Board nor any committee thereof shall, except as permitted by Section 2.3(d) or Section 6.2: (i) withdraw, modify, amend or qualify, in a manner adverse to Parent and Acquisition Sub, the Company Board Recommendation, (ii) approve, recommend or declare advisable any Acquisition Proposal, (iii) fail to include the Company Board Recommendation in the Schedule 14D-9, (iv) if any Acquisition Proposal (other than an Acquisition Proposal in the circumstances described in clause (v) below) has been made public, fail to reaffirm the Company Board Recommendation upon request of Parent within five (5) Business Days upon receipt of a request from Parent to do so, provided, that, Parent may make such request only once with respect to such Acquisition Proposal unless such Acquisition Proposal is subsequently materially modified in which case Parent may make such request once each time such material modification is made, (v) fail to recommend against any Acquisition Proposal that is a tender offer or exchange offer subject to Regulation 14D under the Exchange Act within ten (10) Business Days after the commencement of such tender or exchange offer, (vi) publicly propose or publicly announce an intention to take any of the foregoing actions (any action described in clause “(i)” through clause “(vi)” being referred to as a “Change in Recommendation”); or (vii) cause the Company to enter into any letter of intent, memorandum of understanding, agreement in principle or contract (other than a confidentiality agreement entered into in compliance with Section 6.2(a)) contemplating an Acquisition Proposal (any such contract, an “Alternative Acquisition Agreement”) or otherwise resolve or agree to do so.
(d) Notwithstanding anything to the contrary contained in this Agreement, at any time prior to the Acceptance Time, the Company Board may:
(i) make a Change in Recommendation in response to an Acquisition Proposal and/or cause the Company to terminate this Agreement pursuant to Section 8.1(f) to enter into an Alternative Acquisition Agreement concerning an Acquisition Proposal if: (A) such Acquisition Proposal did not result from a breach of Section 6.2(a) (other than immaterial breaches); (B) the Company Board (or a committee thereof) determines in good faith (1) after consultation with the Company’s outside legal counsel, that such Acquisition Proposal would, if this Agreement or the Offer were not amended or an alternative transaction with Parent were not entered into, constitute a Superior Proposal and (2) after consultation with the Company’s outside legal counsel, that in light of such Acquisition Proposal, a failure to make a Change in Recommendation and/or to cause the Company to terminate this Agreement pursuant to Section 8.1(f) to enter into an Alternative Acquisition Agreement for such Acquisition Proposal would be inconsistent with the Company Board’s fiduciary obligations to the Company’s stockholders under applicable Laws; (C) the Company delivers to Parent a written notice (the “Superior Proposal Notice”) stating that the Company Board intends to take such action and (in the event the Company Board contemplates causing the Company to terminate this Agreement and enter into an Alternative Acquisition Agreement, including a copy of such Alternative Acquisition Agreement) specifying in reasonable detail the reasons therefor, including all information required under Section 6.2(b) (which notice shall not constitute a Change in Recommendation); (D) during the four (4) Business Day period commencing on the date of Parent’s receipt of such Superior Proposal Notice (as may be extended pursuant to clause “(F)” below, the “Notice Period”), the Company (1) shall, and shall cause its Subsidiaries not to enter into any Alternative Acquisition Agreement, and (2) shall, and shall cause its representatives to negotiate with Parent in good faith during the Notice Period (to the extent Parent desires to negotiate) regarding a possible amendment of this Agreement or the Offer or a possible alternative transaction so that the Acquisition Proposal that is the subject of the Superior Proposal Notice ceases to be a Superior Proposal; (E) after the expiration of the Notice Period, the Company Board (or a committee thereof) shall have determined in good faith, after taking into account any amendments to this Agreement and the Offer that Parent and Acquisition Sub have irrevocably agreed in writing to make as a result of the negotiations contemplated by clause “(D)” above, that (1) after consultation with the Company’s outside legal counsel, such Acquisition Proposal constitutes a Superior Proposal, and (2) after consultation with the Company’s outside legal counsel, the failure to make a Change in Recommendation and/or terminate this Agreement pursuant to Section 8.1(f) to enter into such Alternative Acquisition Agreement would be inconsistent with the Company Board’s fiduciary obligations to the Company’s stockholders under applicable Laws; and (F) in the event of any material amendment to the terms of any Superior Proposal (including any amendment to any financial terms or conditions), the Company shall, in each case, have delivered to Parent an additional notice consistent with that described in clause “(C)” above and a new Notice Period under this Section 2.3(d)(i) shall commence, during which time the Company shall be required to comply with the requirements of this Section 2.3(d)(i) anew with respect to such additional notice, except that such new Notice Period shall be two (2) Business Days; or
(ii) make a Change in Recommendation not related to an Acquisition Proposal if: (A) any development or event arises after the date hereof materially affecting the Company that does not relate to any Acquisition Proposal and was not known to the Company’s Board or reasonably foreseeable on or prior to the date hereof (any such intervening event unrelated to an Acquisition Proposal being referred to as an “Intervening Event”); (B) the Company Board (or a committee thereof) determines in good faith, after consultation with its outside legal counsel, that, in light of such Intervening Event, a failure to effect a Change in Recommendation would be inconsistent with the Company Board’s fiduciary obligations to the Company’s stockholders under applicable Laws; (C) such Change in Recommendation is not effected prior to the fourth (4th) Business Day after Parent receives written notice from the Company confirming that the Company Board intends to effect such Change in Recommendation (which notice shall not constitute a Change in Recommendation); (D) during such four (4) Business Day period, if requested by Parent, the Company engages in good faith negotiations with Parent to amend this Agreement or the Offer or enter into an alternative transaction; and (E) at the end of such four (4) Business Day period, the Company Board (or a committee thereof) determines in good faith, after consultation with its outside legal counsel and after taking into account any amendments to this Agreement and the Offer that Parent and Acquisition Sub have irrevocably agreed in writing to make as a result of the negotiations contemplated by clause “(D)” above, that, in light of such Intervening Event, a failure to effect a Change in Recommendation would be inconsistent with the Company Board’s fiduciary obligations to the Company’s stockholders under applicable Laws; provided, however, that after compliance with clauses “(C)” through “(E)” of this Section 2.3(d)(ii) with respect to any Intervening Event, the Company shall have no further obligations under clauses “(C)” through “(E)” of this Section 2.3(d)(ii), and the Company Board shall not be required to comply with such obligations with respect to any other Intervening Event.
(e) In connection with the Offer, the Company shall instruct its transfer agent to furnish to Acquisition Sub a list, as of the most recent practicable date, of all record and beneficial holders of Company Common Stock and their addresses, as well as mailing labels containing such names and addresses. The Company will furnish Acquisition Sub with such additional information (including any security position listings in the Company’s possession) and assistance as Acquisition Sub may reasonably request for purposes of communicating the Offer to the holders of Company Common Stock. All information furnished in accordance with this Section 2.3(e) shall be held in confidence by Parent and Acquisition Sub in accordance with the requirements of the Confidentiality Agreement, and shall be used by Parent and Acquisition Sub only in connection with the communication of the Offer to the holders of Company Common Stock.
Appears in 2 contracts
Samples: Merger Agreement (Amplify Snack Brands, INC), Merger Agreement (Hershey Co)
Actions of the Company. (a) Schedule 14D-9.
(i) On or as promptly as practicable after the Offer Commencement Date, the Company shall file with the SEC and, following or and (contemporaneously with the initial dissemination of the Offer Documents to holders of Company Common Stock Shares to the extent required by applicable federal securities laws, and subject to the final sentence of Section 1.3(b)) disseminate to holders of Company Common Stock Shares a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any amendments or supplements thereto, the “Schedule 14D-9”) that, subject to Section 6.3 1.3(c), shall (i) contain the unanimous recommendation of the Company Board Company’s board of directors that stockholders of the Company tender their shares of Company Common Stock Shares pursuant to the Offer and (to the extent necessary) adopt this Agreement (the “Company Board Recommendation”), (ii) contain along with a notice of appraisal rights in compliance with Section 262(d) description of the DGCL, (iii) set the Stockholder List Date as the record date for purposes of receiving the notice required by Section 262(d)(2) other determinations of the DGCL, and (iv) not contain any untrue statement board of a material fact or omission of a material fact necessary in order to make the statements made therein, in light directors of the circumstances under which they are made, not misleadingCompany set forth in Section 3.20. The Company shall cause the Schedule 14D-9 to comply in all material respects with the Exchange Act and all other applicable Legal Requirements. The Company shall give Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 (including any amendment or supplement thereto) prior to the filing thereof with the SEC or the dissemination thereof to holders of Company Common StockShares; provided, and however, that the Company shall need not give reasonable Parent and good faith consideration its counsel such opportunity to review and comment in connection with any amendment or supplement to the Schedule 14D-9 that relates to any such comments made by Parent Alternative Acquisition Proposal or its counselany Change in Recommendation (as defined in Section 1.3(c)). The Company shall promptly provide Parent and its counsel with a copy of any written comments (and or a summary description of any oral comments) comments received by the Company (or its counsel) from the SEC or its staff with respect to the Schedule 14D-9. The Company shall (A) respond promptly to any comments of the SEC or its staff with respect to the Schedule 14D-9, (B) 14D-9 and give Parent and its counsel a reasonable opportunity (to the extent practicable) to review and comment on any response to such comments provided to the SEC or its staff staff; provided, however, that the Company need not give Parent and participate in the formulation of any response to its counsel such comments of the SEC or its staff, including the opportunity to participate review and comment in connection with any discussions with such response or comments to the SEC or its staff concerning such comments, and (C) give reasonable and good faith consideration extent that they relate to any such comments made Alternative Acquisition Proposal or any Change in respect of any such proposed responsesRecommendation.
(iib) To the extent required by the applicable requirements of the Exchange Act and the listing requirements of Nasdaqrules and regulations thereunder, (i) each of Parent, Merger Acquisition Sub and the Company shall promptly correct any information provided by it for use in the Schedule 14D-9 if such information shall have become false or misleading in any material respect, and (ii) the Company shall take all steps necessary to promptly cause the Schedule 14D-9, as supplemented or amended to correct such information, to be filed with the SEC and and, subject to the final sentence of this Section 1.3(b), to be disseminated to holders of Company Common StockShares. Parent and Merger Acquisition Sub shall promptly furnish to the Company in writing all information concerning Parent or Merger Acquisition Sub that may be required by applicable securities Legal Requirements or reasonably requested by the Company in connection with any action contemplated by this Section 2.3(a)(ii1.3(b). To the extent requested by the Company, Parent shall cause the Schedule 14D-9 and any supplement or amendment thereto to be mailed or otherwise disseminated to the holders of Company Shares together with the Offer Documents disseminated to the holders of Company Shares.
(c) Notwithstanding anything to the contrary contained in this Agreement, the Company’s board of directors may, at any time prior to the Acceptance Time: (i) withhold, withdraw or qualify (or amend or otherwise modify in a manner adverse to Parent or Acquisition Sub), or publicly propose to withhold, withdraw or qualify (or amend or otherwise modify in a manner adverse to Parent or Acquisition Sub), the Company Board Recommendation; or (ii) approve, endorse, adopt or recommend, or publicly propose to approve, endorse, adopt or recommend, any Alternative Acquisition Proposal (any action described in the foregoing clauses (i) and (ii) of this Section 1.3(c) being referred to as a “Change in Recommendation”), solely in response to either (A) a Superior Proposal that has not been withdrawn, or (B) an Intervening Event that has occurred and is (or the effect of which is) continuing if, in each such case, it determines in good faith (after consultation with outside legal counsel) that failure to do so would reasonably be expected to constitute or result in a breach by the Company’s board of directors of its fiduciary duties to the holders of Company Shares under applicable Legal Requirements; provided that, prior to any such Change in Recommendation, the Company shall have delivered to Parent written notice at least five days prior to effecting such Change in Recommendation which shall (1) state that the Company intends to effect a Change in Recommendation and the manner in which it intends to do so, and (2) comply with the requirements of a Superior Proposal Notice or describe the circumstances of the Intervening Event, as applicable.
(d) In connection with the Offer, the Company shall instruct its transfer agent to furnish to Acquisition Sub a list, as of a recent date, of the record holders of Company Shares and their addresses, as well as mailing labels containing such names and addresses. The Company will furnish Acquisition Sub with such additional information (including any security position listings in the Company’s possession) and assistance as Acquisition Sub may reasonably request for purposes of communicating the Offer to the holders of Company Shares. All information furnished in accordance with this Section 1.3(d) shall be held in confidence by Parent and Acquisition Sub in accordance with the requirements of the Confidentiality Agreement, dated February 16, 2009, between Parent and the Company, as amended by the Amendment to Confidentiality Agreement dated March 16, 2009, as further amended by the Amendment to Confidentiality Agreement dated March 2, 2010 (as may be further amended, supplemented or modified, the “Confidentiality Agreement”), and shall be used by Parent and Acquisition Sub only in connection with the Offer and the Merger.
(e) Solely in connection with the tender and purchase of Company Shares pursuant to the Offer and the consummation of the Merger, the Company hereby waives any and all rights of first refusal it may have with respect to Company Shares owned by, or issuable to, any Person, other than rights to repurchase unvested shares, if any, that may be held by Persons pursuant to the grant of restricted stock purchase rights or following exercise of employee stock options.
Appears in 1 contract
Samples: Merger Agreement (Pegasystems Inc)
Actions of the Company. (a) Schedule 14D-9.
(i) On or as promptly as practicable after the Offer Commencement Date, the Company shall file with the SEC and, and (following or contemporaneously with the initial dissemination of the Offer Documents to holders of Company Common Stock Shares to the extent required by applicable federal securities laws, and subject to the final sentence of Section 1.3(b)) disseminate to holders of Company Common Stock Shares a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any amendments or supplements thereto, the “Schedule 14D-914D -9”) that, subject to Section 6.3 1.3(d), shall (i) contain the unanimous recommendation of the Company Board that stockholders of the Company tender their shares of Company Common Stock Shares pursuant to the Offer (the “Company Board Recommendation”), (ii) contain a notice of appraisal rights in compliance with Section 262(d) of the DGCL, (iii) set the Stockholder List Date as the record date for purposes of receiving and the notice and other information required by Section 262(d)(2) of the DGCL, and (iv) not contain any untrue statement of a . The Company shall cause the Schedule 14D-9 to comply in all material fact or omission of a material fact necessary in order to make respects with the statements made therein, in light applicable requirements of the circumstances under which they are made, not misleadingExchange Act and the rules and regulations thereunder. Parent and Acquisition Sub shall promptly furnish to the Company all information concerning Parent and Acquisition Sub that is required or reasonably requested by the Company in connection with the Schedule 14D-9. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 (including any amendment or supplement thereto) prior to the filing thereof with the SEC or the dissemination thereof to holders of Company Common StockShares; provided, and however, that the Company shall need not give reasonable Parent and good faith consideration its counsel such opportunity to review and comment in connection with any amendment or supplement to the Schedule 14D-9 that relates to any such comments made by Parent Acquisition Proposal or its counselany Change in Recommendation. The Company shall promptly provide Parent and its counsel with a copy or a description of any written comments (and a summary of any oral comments) received by the Company (or its counsel) from the SEC or its staff with respect to the Schedule 14D-9. The Company shall (A) respond promptly to any comments of the SEC or its staff with respect to the Schedule 14D-9, (B) 14D-9 and give Parent and its counsel a reasonable opportunity (to the extent practicable) to review and comment on any response to such comments provided to the SEC or its staff staff; provided, however, that the Company need not give Parent and participate in the formulation of any response to its counsel such comments of the SEC or its staff, including the opportunity to participate review and comment in connection with any discussions with the SEC such response or its staff concerning such comments, and (C) give reasonable and good faith consideration comments that relate to any such comments made Acquisition Proposal or any Change in respect of any such proposed responsesRecommendation.
(iib) To the extent required by the applicable requirements of the Exchange Act and the listing requirements of Nasdaqrules and regulations thereunder, (i) each of Parent, Merger Acquisition Sub and the Company shall promptly correct any information provided by it for use in the Schedule 14D-9 if such information shall have become false or misleading in any material respect, and (ii) the Company shall take all steps necessary to promptly cause the Schedule 14D-9, as supplemented or amended to correct such information, to be filed with the SEC and and, subject to the final sentence of this Section 1.3(b), to be disseminated to holders of Company Common StockShares. Parent and Merger Acquisition Sub shall promptly furnish to the Company all information concerning Parent or Merger Acquisition Sub that may be reasonably requested by the Company in connection with any action contemplated by this Section 2.3(a)(ii1.3(b). To the extent requested by the Company, Parent shall cause the Schedule 14D-9 and any supplement or amendment thereto to be mailed or otherwise disseminated to the holders of Company Shares together with the Offer Documents disseminated to the holders of Company Shares.
(c) Neither the Company Board nor any committee thereof shall, except as permitted by Section 1.3(d) or Section 5.2: (i) withdraw, modify, amend or qualify, in a manner adverse to Parent and Acquisition Sub, the Company Board Recommendation; (ii) approve, recommend or declare advisable any Acquisition Proposal; (iii) publicly propose or announce any intention to take any of the foregoing actions (any action described in clauses “(i),” “(ii)” or “(iii)” being referred to as a “Change in Recommendation”); or (iv) cause or permit the Company to enter into any contract (other than a confidentiality agreement entered into in compliance with Section 5.2(a)) contemplating an Acquisition Transaction (any such contract, an “Alternative Acquisition Agreement”).
(d) Notwithstanding anything to the contrary contained in this Agreement, at any time prior to the Acceptance Time, the Company Board may:
(i) make a Change in Recommendation in response to an Acquisition Proposal and/or cause the Company to enter into an Alternative Acquisition Agreement concerning an Acquisition Proposal if: (A) such Acquisition Proposal did not result from a breach of Section 5.2(a); (B) the Company Board determines in good faith, after consultation with the Company’s outside legal counsel and its financial advisor, (1) that such Acquisition Proposal would, if this Agreement or the Offer were not amended or an alternative transaction with Parent were not entered into, constitute a Superior Proposal and (2) that in light of such Acquisition Proposal, a failure to make a Change in Recommendation and/or to cause the Company to enter into such Alternative Acquisition Agreement would be a breach by the Company Board of its fiduciary obligations to the Company’s stockholders under applicable Legal Requirements; (C) the Company delivers to Parent a written notice (the “Superior Proposal Notice”) stating that the Company Board intends to take such action and including the identity of the Person making such Superior Proposal and the material terms thereof or (in the event the Company Board contemplates causing the Company to enter into an Alternative Acquisition Agreement) including a copy of such Alternative Acquisition Agreement; (D) during the four business day period commencing on the date of Parent’s receipt of such Superior Proposal Notice, the Company negotiates in good faith with Parent (to the extent Parent desires to negotiate) regarding a possible amendment of this Agreement or the Offer or a possible alternative transaction so that the Acquisition Proposal that is the subject of the Superior Proposal Notice ceases to be a Superior Proposal; (E) after the expiration of the negotiation period described in clause “(D)” above, the Company Board determines in good faith, after consultation with its outside legal counsel and its financial advisor, and after taking into account any amendments to this Agreement and the Offer that Parent and Acquisition Sub have proposed to make as a result of the negotiations contemplated by clause “(D)” above, that (1) such Acquisition Proposal constitutes a Superior Proposal, and (2) the failure to make a Change in Recommendation and/or enter into such Alternative Acquisition Agreement would be a breach by the Company Board of its fiduciary obligations to the Company’s stockholders under applicable Legal Requirements; and (F) if the Company enters into an Alternative Acquisition Agreement concerning such Superior Proposal, the Company terminates this Agreement in accordance with Section 7.1(f); provided, however, that if such Superior Proposal is materially modified (it being agreed that any change in the amount, form or mix of consideration shall constitute a material modification), the Company shall again comply with its obligations under clauses “(C)” through “(E)” of this Section 1.3(d)(i) with respect to such modified Superior Proposal (with the negotiation period in clause “(D)” above reduced to three business days); or
(ii) make a Change in Recommendation not related to an Acquisition Proposal if: (A) any material change in circumstances arises after the date of this Agreement affecting the Company that does not relate to any Acquisition Proposal (any such material change in circumstances unrelated to an Acquisition Proposal being referred to as a “Change in Circumstances”), provided, however, in no event shall any of the following constitute a Change in Circumstances: (1) the announcement or pendency of this Agreement, the Offer, the Merger or any of the other transactions contemplated by this Agreement; or (2) the fact that the Company meets or exceeds internal or analysts’ expectations or projections; (B) the Company Board determines in good faith, after consultation with its outside legal counsel, that, in light of such Change in Circumstances, a failure to effect a Change in Recommendation would be a breach by the Company Board of its fiduciary obligations to the Company’s stockholders under applicable Legal Requirements; (C) such Change in Recommendation is not effected prior to the fourth business day after Parent receives written notice from the Company confirming that the Company Board intends to effect such Change in Recommendation, including a description of the Change in Circumstances in reasonable detail; (D) during such four business day period, if requested by Parent, the Company engages in good faith negotiations with Parent (to the extent Parent desires to negotiate) to amend this Agreement or the Offer or enter into an alternative transaction; and (E) at the end of such four business day period, the Company Board determines in good faith, after consultation with its outside legal counsel and after taking into account any amendments to this Agreement and the Offer that Parent and Acquisition Sub have proposed to make as a result of the negotiations contemplated by clause “(D)” above, that, in light of such Change in Circumstances, a failure to effect a Change in Recommendation would be a breach by the Company Board of its fiduciary obligations to the Company’s stockholders under applicable Legal Requirements.
(e) In connection with the Offer, the Company shall instruct its transfer agent to furnish to Acquisition Sub a list, as of the most recent practicable date, of the record holders of Company Shares and their addresses, as well as mailing labels containing the names and addresses of all record holders of Company Shares. The Company will furnish Acquisition Sub with such additional information (including any security position listings as of the most recent practicable date in the Company’s possession and updated lists of the record holders of Company Shares) and assistance as Acquisition Sub may reasonably request for purposes of communicating the Offer to the holders of Company Shares. Except as required by applicable Legal Requirements or as necessary to communicate the Offer, all information furnished in accordance with this Section 1.3(e) shall be held in confidence by Parent and Acquisition Sub in accordance with the requirements of the Mutual Confidentiality Agreement, dated April 1, 2016, between Parent and the Company, as amended (the “Confidentiality Agreement”), and shall be used by Parent and Acquisition Sub only in connection with the communication of the Offer to the holders of Company Shares.
Appears in 1 contract
Samples: Merger Agreement (Xenoport Inc)
Actions of the Company. (a) Schedule 14D-9.
(i) On or as As promptly as reasonably practicable after on the Offer Commencement Date, the Company shall file with the SEC and, following or contemporaneously with the initial dissemination of the Offer Documents to holders of Company Common Stock to the extent required by applicable federal securities laws, and disseminate to holders of Company Common Stock Shares a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any amendments or supplements thereto, the “Schedule 14D-9”) that, subject to Section 6.3 that shall (i) contain the unanimous recommendation of the Company Board that stockholders of the Company tender their shares of Company Common Stock Shares pursuant to the Offer and (to the extent necessary) adopt this Agreement (the “Company Board Recommendation”), (ii) . The Schedule 14D-9 will also contain a the notice of appraisal rights in compliance with Section 262(d) of required to be delivered by the DGCL, (iii) set the Stockholder List Date as the record date for purposes of receiving the notice required by Company under Section 262(d)(2) of the DGCL, and (ivDGCL in connection with a merger effected pursuant to Section 251(h) not contain any untrue statement of a material fact or omission of a material fact necessary in order to make the statements made therein, in light of the circumstances under which they are made, not misleadingDGCL at the time the Company first files the Schedule 14D-9 with the SEC. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 (including any amendment or supplement thereto) prior to the filing thereof with the SEC or the dissemination thereof to holders of Company Common StockShares; provided, and however, that the Company shall need not give reasonable Parent and good faith consideration its counsel such opportunity to review and comment in connection with any amendment or supplement to the Schedule 14D-9 to the extent that such amendment or supplement relates to any such comments made by Parent Change in Recommendation or its counselAlternative Acquisition Agreement). The Company shall promptly provide Parent and its counsel with a copy or a description of any written comments (and a summary of any oral comments) received by the Company (or its counsel) from the SEC or its staff with respect to the Schedule 14D-9. The Company shall (A) respond promptly to any comments of the SEC or its staff with respect to the Schedule 14D-9, (B) 14D-9 and give Parent and its counsel a reasonable opportunity (to the extent practicable) to review and comment on any response to such comments provided to the SEC or its staff staff; provided, however, that the Company need not give Parent and participate in the formulation of any response to its counsel such comments of the SEC or its staff, including the opportunity to participate review and comment in connection with any discussions with such response or comments to the SEC extent that such response or its staff concerning such comments, and (C) give reasonable and good faith consideration comments relate to any such comments made Change in respect of any such proposed responsesRecommendation or Alternative Acquisition Agreement.
(iib) To the extent required by the applicable requirements of the Exchange Act and the listing requirements of Nasdaqrules and regulations thereunder, (i) each of Parent, Merger Acquisition Sub and the Company shall promptly correct any information provided by it for use in the Schedule 14D-9 if such information shall have become false or misleading in any material respect, and (ii) the Company shall take all steps necessary to promptly cause the Schedule 14D-9, as supplemented or amended to correct such information, to be filed with the SEC and and, subject to the final sentence of this Section 1.3(b), to be disseminated to holders of Company Common StockShares. Parent and Merger Acquisition Sub shall promptly furnish to the Company all information concerning Parent or Merger Acquisition Sub that may be reasonably requested by the Company in connection with any action contemplated by this Section 2.3(a)(ii1.3(b). The Company hereby consents to the inclusion in the Offer Documents of the Company Board Recommendation contained in the Schedule 14D-9. To the extent requested by the Company, Parent shall cause the Schedule 14D-9 and any supplement or amendment thereto to be mailed or otherwise disseminated to the holders of Company Shares together with the Offer Documents disseminated to the holders of Company Shares.
(c) In connection with the Offer, the Company shall promptly (and no later than the date hereof) furnish, or cause to be furnished, to Acquisition Sub a list, as of the most recent practicable date, of the record holders or beneficial owners of Company Shares and their addresses (and their security position listings), as well as mailing labels containing such names and addresses. The Company will furnish Acquisition Sub with such additional information (including lists of record holders or beneficial owners of Company Shares and their security position listings, updated from time to time upon Parent’s, Acquisition Sub’s or either of their respective representatives’ request) and assistance as Acquisition Sub may reasonably request for purposes of communicating the Offer to the holders of Company Shares. All information furnished in accordance with this Section 1.3(c) shall be held in confidence by Parent and Acquisition Sub in accordance with the requirements of the letter agreement, dated December 1, 2015, between Parent and the Company (the “Confidentiality Agreement”), and shall be used by Parent and Acquisition Sub only in connection with the communication of the Offer to the holders of Company Shares.
Appears in 1 contract
Actions of the Company. (a) Schedule 14D-9.
(i) On or as promptly as practicable after the Offer Commencement Date, the Company shall file with the SEC and, and (following or contemporaneously with the initial dissemination of the Offer Documents to holders of Company Common Stock Shares to the extent required by applicable federal securities laws and subject to the final sentence of this Section 1.3(a)) disseminate to holders of Company Shares, to the extent required by applicable federal securities laws, disseminate to holders of Company Common Stock a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any amendments or supplements thereto, the “Schedule 14D-9”) that, subject to Section 6.3 1.3(b), shall (i) contain the unanimous recommendation of the Company Company’s Board of Directors that stockholders of the Company accept the Offer and tender their shares of Company Common Stock Shares pursuant to the Offer and adopt this Agreement (the “Company Board Recommendation”), (ii) contain a notice of appraisal rights in compliance with Section 262(d) of the DGCL, (iii) set the Stockholder List Date as the record date for purposes of receiving the notice required by Section 262(d)(2) of the DGCL, and (iv) not contain any untrue statement of a material fact or omission of a material fact necessary in order to make the statements made therein, in light of the circumstances under which they are made, not misleading. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 (including any amendment or supplement thereto) prior to the filing thereof with the SEC or the dissemination thereof to holders of Company Common Stock, and SEC. Parent shall cooperate with the Company shall give reasonable and good faith consideration so as to any such comments made by Parent or its counselenable the Company to file the Schedule 14D-9 with the SEC on the Offer Commencement Date. The Company shall promptly provide Parent and its counsel with a copy (or if oral, a description) of any written comments (and a summary of any oral comments) received by the Company (or its counsel) from the SEC or its staff with respect to the Schedule 14D-9. The Company shall (A) respond promptly to any such comments of the SEC or its staff with respect to the Schedule 14D-9, (B) and give Parent and its counsel a reasonable opportunity (to the extent practicable) to review and comment on any response to such comments provided to the SEC or its staff and participate in the formulation of any response to such comments of the SEC or its staff, including the opportunity to participate in any discussions with the SEC or its staff concerning such comments, and (C) give reasonable and good faith consideration to any such comments made in respect of any such proposed responses.
(ii) . To the extent required by the applicable requirements of the Exchange Act and the listing requirements of Nasdaq, rules and regulations thereunder; (i) each of Parent, Merger Acquisition Sub and the Company shall promptly correct any information provided by it for use in the Schedule 14D-9 if such information shall have become false or misleading in any material respect, ; and (ii) the Company shall take all steps necessary to promptly cause the Schedule 14D-9, as supplemented or amended to correct such information, to be filed with the SEC and (subject to the final sentence of this Section 1.3(a)) to be disseminated to holders of Company Common StockShares. Parent and Merger Acquisition Sub shall promptly furnish to the Company all information concerning Parent or Merger Acquisition Sub that may be reasonably requested by the Company in connection with any action contemplated by this Section 2.3(a)(ii1.3(a). To the extent requested by the Company, Parent shall cause the Schedule 14D-9 to be mailed or otherwise disseminated to the Company’s stockholders together with the Offer Documents disseminated to the Company’s stockholders.
(b) Notwithstanding anything to the contrary contained in this Agreement, the Company’s Board of Directors may withdraw, modify, amend or qualify the Company Board Recommendation in accordance with the provisions of Section 5.2(c).
(c) In connection with the Offer, the Company shall promptly furnish or cause to be promptly furnished (including by instructing its transfer agent to promptly furnish) to Acquisition Sub a list, as of a recent date, of the record holders of Company Shares and their addresses, as well as mailing labels containing such names and addresses. The Company will furnish Acquisition Sub with such additional information (including lists of holders of Company Shares, updated promptly from time to time at Acquisition Sub’s request, and their addresses, mailing labels and any security position listings in the Company’s possession) and assistance as Acquisition Sub may reasonably request for purposes of communicating the Offer to the holders of Company Shares. Unless Parent or Acquisition Sub is required to disclose any such information by Legal Requirements or applicable stock exchange rules, all information furnished in accordance with this Section 1.3(c) shall be held in confidence by Parent and Acquisition Sub in accordance with the requirements of the letter agreement, dated May 18, 2005, between Parent and the Company (the “Confidentiality Agreement”), and shall be used by Parent and Acquisition Sub only in connection with the communication of the Offer and the dissemination of any proxy or information statement relating to the Merger to the holders of Company Shares or as necessary to enable Acquisition Sub to accept Company Shares tendered pursuant to the Offer, or to consummate the Merger and the other transactions contemplated by this Agreement.
Appears in 1 contract
Actions of the Company. (a) Schedule 14D-9.
(i) On or as promptly as practicable after the Offer Commencement Date, the Company shall file with the SEC and, and (following or contemporaneously with the initial dissemination of the Offer Documents to holders of Company Common Stock to the extent required by applicable federal securities laws, and subject to the final sentence of Section 2.3(b)) disseminate to holders of Company Common Stock a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any amendments or supplements thereto, the “Schedule 14D-9”) that, subject to Section 6.3 2.3(d), shall (i) contain the unanimous recommendation of the Company Board that stockholders of the Company tender their shares of Company Common Stock pursuant to the Offer (the “Company Board Recommendation”), (ii) contain a notice of appraisal rights in compliance with Section 262(d) of the DGCL, (iii) shall set the Stockholder List Date as the record date for purposes of receiving the notice required by Section 262(d)(2) of the DGCL, DGCL and (ivalso shall contain a notice of appraisal rights in compliance with Section 262(d) not contain any untrue statement of a material fact or omission of a material fact necessary in order to make the statements made therein, in light of the circumstances under which they are made, not misleadingDGCL. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 (including any amendment or supplement thereto) prior to the filing thereof with the SEC or the dissemination thereof to holders of Company Common Stock, and the Company shall give reasonable and good faith consideration to any such comments made by Parent or its counsel; provided, however, that the Company shall not be obligated to give Parent and its counsel such opportunity to review and comment in connection with any amendment or supplement to the Schedule 14D-9 that relates to any Acquisition Proposal or any Change in Recommendation. The Company shall promptly provide Parent and its counsel with a copy of any written comments (and a summary of any oral comments) received by the Company (or its counsel) from the SEC or its staff with respect to the Schedule 14D-914D-9 promptly after receipt of such comments. The Company shall (Ai) respond promptly to any comments of the SEC or its staff with respect to the Schedule 14D-9, (Bii) give Parent and its counsel a reasonable opportunity (to the extent practicable) to review and comment on any response to such comments provided to the SEC or its staff and participate in the formulation of any response to such comments of the SEC or its staff, including the opportunity to participate in any discussions with the SEC or its staff concerning such comments, and (Ciii) give reasonable and good faith consideration to any such comments made in respect of any such proposed responses; provided, however, that the Company shall not be obligated to give Parent and its counsel such opportunity to review and comment in connection with any such response or comments that relate to any Acquisition Proposal or any Change in Recommendation.
(iib) To the extent required by the applicable requirements of the Exchange Act and the listing requirements of Nasdaq, (i) each of Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Schedule 14D-9 if such information shall have become false or misleading in any material respect, and (ii) the Company shall take all steps necessary to promptly cause the Schedule 14D-9, as supplemented or amended to correct such information, to be filed with the SEC and and, subject to the final sentence of this Section 2.3(b), to be disseminated to holders of Company Common Stock. Parent and Merger Sub shall promptly furnish to the Company all information concerning Parent or Merger Sub that may be reasonably requested by the Company in connection with any action contemplated by this Section 2.3(a)(ii2.3(b). To the extent reasonably requested by the Company, Parent shall cause the Schedule 14D-9 and any supplement or amendment thereto to be mailed or otherwise disseminated to the holders of Company Common Stock together with the Offer Documents disseminated to the holders of Company Common Stock.
(c) Neither the Company Board nor any committee thereof shall, except as permitted by Section 2.3(d) or Section 6.2: (i) withdraw, modify, amend or qualify, in a manner adverse to Parent and Merger Sub, the Company Board Recommendation; (ii) approve, adopt or recommend or declare advisable any Acquisition Proposal (any action described in clause (i) or clause (ii) being referred to as a “Change in Recommendation”); or (iii) cause the Company to enter into any contract (other than a confidentiality agreement entered into in compliance with Section 6.2(a)) contemplating an Acquisition Proposal (any such contract, an “Alternative Acquisition Agreement”).
(d) Notwithstanding anything to the contrary contained in this Agreement, at any time prior to the Acceptance Time, the Company Board may:
(i) make a Change in Recommendation in response to an Acquisition Proposal and/or cause the Company to enter into an Alternative Acquisition Agreement concerning an Acquisition Proposal if (and only if): (A) such Acquisition Proposal did not result from a material breach of Section 6.2(a); (B) the Company Board determines in good faith (1) after consultation with the Company’s outside legal counsel and financial advisor, that such Acquisition Proposal would constitute a Superior Proposal and (2) after consultation with the Company’s outside legal counsel, that in light of such Acquisition Proposal, a failure to make a Change in Recommendation and/or to cause the Company to enter into such Alternative Acquisition Agreement would be inconsistent with the Company Board’s fiduciary obligations to the Company’s stockholders under applicable Law; (C) the Company delivers to Parent a written notice (the “Superior Proposal Notice”) stating that the Company Board intends to take such action and (in the event the Company Board contemplates causing the Company to enter into an Alternative Acquisition Agreement) including a summary of the material terms and conditions of such Alternative Acquisition Agreement; (D) during the five (5) Business Day period commencing on the date of Parent’s receipt of such Superior Proposal Notice, the Company shall have made its representatives reasonably available for the purpose of engaging in negotiations with Parent (to the extent Parent desires to negotiate) regarding a possible amendment of this Agreement or the Offer or a possible alternative transaction so that the Acquisition Proposal that is the subject of the Superior Proposal Notice ceases to be a Superior Proposal; (E) after the expiration of the negotiation period described in clause (D) above, the Company Board (or a committee thereof) shall have determined in good faith, after taking into account any amendments or adjustments to this Agreement and the Offer or an alternative transaction that Parent and Merger Sub have irrevocably agreed in writing to make as a result of the negotiations contemplated by clause (D) above, that (1) after consultation with the Company’s outside legal counsel and financial advisor, such Acquisition Proposal constitutes a Superior Proposal, and (2) after consultation with the Company’s outside legal counsel, the failure to make a Change in Recommendation and/or enter into such Alternative Acquisition Agreement would be inconsistent with the Company Board’s fiduciary obligations to the Company’s stockholders under applicable Law; and (F) if the Company enters into an Alternative Acquisition Agreement concerning such Superior Proposal, the Company terminates this Agreement in accordance with Section 8.1(g); provided, however, that, in the event of any material amendment or adjustment to the terms of any Superior Proposal, the Company shall deliver an additional Superior Proposal Notice and comply again with clauses (C) through (E) of this Section 2.3(d)(i), except that references to five (5) Business Days shall be deemed to be three (3) Business Days; or
(ii) make a Change in Recommendation not related to an Acquisition Proposal if (and only if): (A) any Effect arises affecting the Company that does not relate to any Acquisition Proposal and was not known or reasonably foreseeable by the Company Board prior to the date hereof (or if known, the consequences of which were not known or reasonably foreseeable) (any such Effect unrelated to an Acquisition Proposal being referred to as an “Intervening Event”); (B) the Company Board (or a committee thereof) determines in good faith, after consultation with its outside legal counsel, that, in light of such Intervening Event, a failure to effect a Change in Recommendation would be inconsistent with the Company Board’s fiduciary obligations to the Company’s stockholders under applicable Law; (C) such Change in Recommendation is not effected prior to the fifth (5th) Business Day after Parent receives written notice (the “Intervening Event Notice”) from the Company confirming that the Company Board intends to effect such Change in Recommendation; (D) during such five (5) Business Day period, if requested by Parent, the Company engages in good faith negotiations with Parent to amend or adjust this Agreement or the Offer or enter into an alternative transaction; and (E) at the end of such five (5) Business Day period, the Company Board (or a committee thereof) determines in good faith, after consultation with its outside legal counsel and after taking into account any amendments or adjustments to this Agreement and the Offer that Parent and Merger Sub have irrevocably agreed in writing to make as a result of the negotiations contemplated by clause (D) above, that, in light of such Intervening Event, a failure to effect a Change in Recommendation would be inconsistent with the Company Board’s fiduciary obligations to the Company’s stockholders under applicable Law; provided, however, that after compliance with clauses (C) through (E) of this Section 2.3(d)(ii) with respect to any Intervening Event, the Company shall have no further obligations under clauses (C) through (E) of this Section 2.3(d)(ii).
(e) In connection with the Offer, the Company shall instruct its transfer agent to furnish to Merger Sub a list, as of the most recent practicable date, of the record holders of Company Common Stock and their addresses, as well as mailing labels containing such names and addresses (the date of the list used to determine the Persons to whom the Offer Documents and Schedule 14D-9 are first disseminated, which date shall not be more than ten (10) business days prior to the date the Offer Documents and the Schedule 14D-9 are first disseminated, the “Stockholder List Date”). The Company will furnish Merger Sub with such additional information (including any available computer file containing the names and addresses of record holders of Company Common Stock and lists or computer files of securities positions of Company Common Stock held in stock depositories in the Company’s possession) and assistance as Merger Sub may reasonably request for purposes of communicating the Offer to the holders of Company Common Stock. All information furnished in accordance with this Section 2.3(e) shall be held in confidence by Xxxxxx and Merger Sub (and their agents) in accordance with the requirements of the Confidentiality Agreement, and shall be used by Parent and Merger Sub (and their agents) only in connection with the communication of the Offer to the holders of Company Common Stock. If this Agreement is terminated, Parent and Merger Sub shall deliver, and shall use their reasonable best efforts to cause their agents to deliver, to the Company (or destroy, at the Company’s election) all copies, digital files, and extracts or summaries from such information furnished in accordance with this Section 2.3(e) then in their possession or control.
(f) Immediately following the Acceptance Time, the Company shall instruct its transfer agent to register the transfer of the shares of Company Common Stock accepted for payment by Merger Sub.
Appears in 1 contract
Samples: Merger Agreement (Forma Therapeutics Holdings, Inc.)
Actions of the Company. (a) Schedule 14D-9Any action required by any provision of this Trust Agreement to be taken by the Company's Board shall be evidenced by a resolution of the Board, certified to the Trustee by the Secretary or an Assistant Secretary of the Company under its corporate seal. The Trustee shall be fully protected in relying upon any resolution so certified to it. Unless other evidence with respect thereto has been specifically prescribed in this Trust Agreement, any other action of the Company under any provision of this Trust Agreement, including any approval of or exceptions to the Trustee's accounts, shall be evidenced by a certificate signed by an officer of the Company, duly authorized to give communications to the Trustee, and the Trustee shall be fully protected in relying upon such certificate. The Trustee may accept a certificate signed by any duly-authorized Company officer authorized to give communications to the Trustee as proof of any fact or matter that it deems necessary or desirable to have established in the administration of the Trust (unless other evidence of such fact or matter is expressly prescribed herein), and the Trustee shall be fully protected in relying upon the statements in the certificate.
(ib) On or as promptly as practicable after Notwithstanding anything herein contained to the Offer Commencement Datecontrary, the Company shall file with the SEC and, following or contemporaneously with the initial dissemination of the Offer Documents to holders of Company Common Stock to the extent required by applicable federal securities laws, disseminate to holders of Company Common Stock a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any amendments or supplements thereto, the “Schedule 14D-9”) that, subject to Section 6.3 shall (i) contain the unanimous recommendation of the Company Board that stockholders of the Company tender their shares of Company Common Stock pursuant to the Offer (the “Company Board Recommendation”), (ii) contain a notice of appraisal rights in compliance with Section 262(d) of the DGCL, (iii) set the Stockholder List Date as the record date for purposes of receiving the notice required by Section 262(d)(2) of the DGCL, and (iv) not contain any untrue statement of a material fact or omission of a material fact necessary in order to make the statements made therein, in light of the circumstances under which they are made, not misleading. Parent and its counsel Trustee shall be given a reasonable opportunity entitled conclusively to review rely upon any written notice, instruction, direction, certificate or other communication reasonably believed by it to be genuine and comment on to be signed by the Schedule 14D-9 (including any amendment proper person or supplement thereto) prior to the filing thereof with the SEC or the dissemination thereof to holders of Company Common Stockpersons, and the Company Trustee shall give reasonable and good faith consideration be under no duty to any such comments made by Parent make investigation or its counsel. The Company shall promptly provide Parent and its counsel with a copy inquiry as to the truth or accuracy of any written comments (and a summary of any oral comments) received by the Company (or its counsel) from the SEC or its staff with respect to the Schedule 14D-9. The Company shall (A) respond promptly to any comments of the SEC or its staff with respect to the Schedule 14D-9, (B) give Parent and its counsel a reasonable opportunity (to the extent practicable) to review and comment on any response to such comments provided to the SEC or its staff and participate in the formulation of any response to such comments of the SEC or its staff, including the opportunity to participate in any discussions with the SEC or its staff concerning such comments, and (C) give reasonable and good faith consideration to any such comments made in respect of any such proposed responsesstatement contained therein.
(iic) To the extent required by the applicable requirements of the Exchange Act and the listing requirements of Nasdaq, (i) each of Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Schedule 14D-9 if such information shall have become false or misleading in any material respect, and (ii) the Company shall take all steps necessary to promptly cause the Schedule 14D-9, as supplemented or amended to correct such information, to Until notice be filed with the SEC and to be disseminated to holders of Company Common Stock. Parent and Merger Sub shall promptly furnish given to the Company all information concerning Parent or Merger Sub that may contrary, communications to the Trustee shall be reasonably requested by the Company in connection with any action contemplated by this Section 2.3(a)(ii)sent to it at its office at One HSBC Plaza, Rochester, NY 14639, Attention: Charles Herendeen; cxxxxxxxxxxxxx xx xxx Xxxxxxx xxxxx be sent to it xx xxx xxxxxx xx 175 Sully's Trail, Suite 300, Pittsford, New York, 14534, ATTN: Russxxx X. Xxxxxxxxx, Xxx.
Appears in 1 contract
Samples: Directors and Officers Insurance Premium Trust Agreement (Mpower Holding Corp)
Actions of the Company. (a) Schedule 14D-9.
(i) On or as As promptly as practicable on the Commencement Date after Merger Sub files the Offer Commencement DateSchedule TO, the Company shall file with the SEC and, following or contemporaneously with the initial dissemination of the Offer Documents to holders of Company Common Stock to the extent required by applicable federal securities laws, disseminate to holders of Company Common Stock a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (together with any amendments or all amendments, supplements and exhibits thereto, the “Schedule 14D-9”) that, subject to Section 6.3 that shall (i) contain the unanimous recommendation of the Company Board that stockholders of the Company tender their shares of Company Common Stock pursuant Recommendation (subject to the Offer (the “Company Board Recommendation”provisions of Section 2.3(c) and Section 6.2), (ii) contain the fairness opinion referenced in Section 4.19 and a notice of appraisal rights in compliance with Section 262(d) 262 of the DGCL, (iii) set . The Company shall cause the Stockholder List Date as the record date for purposes of receiving the notice Schedule 14D-9 to include all information required by Section 262(d)(2) of the DGCLunder, and (iv) shall otherwise comply, in all material respects, with applicable Law, including the Exchange Act, and shall not contain any untrue statement of a material fact or omission of a omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that no covenant or representation is made by the Company with respect to information supplied by or on behalf of Parent or Merger Sub for inclusion or incorporation by reference in the Schedule 14D-9. Merger Sub and Parent shall promptly furnish to the Company all information concerning Merger Sub, Parent or any of their applicable Affiliates required by the Exchange Act to be set forth in the Schedule 14D-9 and shall cause the information supplied by it or on behalf of it for inclusion in the Schedule 14D-9 at the time the Schedule 14D-9 is filed with the SEC not to contain any untrue statements of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. Parent and its counsel The Company shall be given a reasonable opportunity to review and comment on cause the Schedule 14D-9 (including any amendment or supplement thereto) prior to the filing thereof with the SEC or the dissemination thereof be disseminated to holders of Company Common Stock, as and when required by applicable Law, including the Exchange Act and, to the extent requested by Parent, the Company shall cause the Schedule 14D-9 to be mailed or otherwise disseminated to the holders of Company Common Stock together with the Offer Documents disseminated to the holders of Company Common Stock. The Company, on the one hand, and Parent and Merger Sub, on the other hand, agree to promptly notify the other Party and correct any information included in, or incorporated by reference into, the Schedule 14D-9, if and to the extent that such information shall have become false or misleading in any material respect or as otherwise required by applicable Law, the Company shall cause the Schedule 14D-9, as so corrected, to be filed with the SEC and disseminated to holders of Company Common Stock, in each case, as and to the extent required by applicable Law, including the Exchange Act. So long as the Company Board has not made a Change in Recommendation or in connection with any disclosures made pursuant to and in compliance with Section 6.2, the Company shall give Parent, Merger Sub and their counsel a reasonable opportunity to review the Schedule 14D-9 before it is filed with the SEC, and good faith consideration to any such comments made by Parent or its counsel. The the Company shall promptly provide Parent and its counsel shall consider in good faith any reasonable additions, deletions or changes suggested by Parent, Merger Sub or their counsel. In addition, so long as the Company Board has not made a Change in Recommendation or in connection with a copy any disclosures made pursuant to and in compliance with Section 6.2, the Company shall provide Parent, Merger Sub and their counsel with (i) copies of any written comments (comments, and shall provide them with a written summary of any oral comments) received by , that the Company (or its counsel) counsel may receive from time to time from the SEC or its staff with respect to the Schedule 14D-9. The Company shall (A) respond 14D-9 promptly to any comments after receipt of the SEC or its staff with respect to the Schedule 14D-9, (B) give Parent and its counsel a reasonable opportunity (to the extent practicable) to review and comment on any response to such comments provided to the SEC or its staff and participate in the formulation of any response to such comments of the SEC or its staff, including the opportunity to participate in any discussions with the SEC or its staff concerning such comments, and (C) give reasonable and good faith consideration to any such comments made in respect of any such proposed responses.
(ii) To copies of any written responses thereto or a written summary of any oral responses thereto. So long as the extent required by Company Board has not made a Change in Recommendation or in connection with any disclosures made pursuant to and in compliance with Section 6.2, the applicable requirements of the Exchange Act and the listing requirements of Nasdaq, (i) each of Company shall give Parent, Merger Sub and their counsel a reasonable opportunity to review any such written responses, and the Company and its counsel shall promptly correct consider in good faith any information provided reasonable additions, deletions or changes suggested by it for use Parent, Merger Sub or their counsel. Parent and its counsel shall have the right to consult with the Company and its counsel regarding any discussions or meetings with the SEC or other Governmental Entities to the extent related to the Offer, the Merger or the other Transactions to the extent such consultation is not prohibited by the SEC or other Governmental Entities.
(b) Except as expressly permitted by Section 2.3(c), neither the Company Board nor any committee thereof shall (A) withdraw, qualify or modify in a manner adverse to Parent, or publicly propose to withdraw, qualify or modify in a manner adverse to Parent, the Company Board Recommendation, (B) approve, authorize, declare advisable, endorse or recommend (or publicly propose to approve, authorize, declare advisable, endorse or recommend) any Acquisition Proposal or Acquisition Inquiry, (C) fail to include in the Schedule 14D-9 the Company Board Recommendation, (D) fail to publicly reaffirm the Company Board Recommendation within ten (10) Business Days of receipt of a written request by Parent to provide such reaffirmation following the first public disclosure of any Acquisition Proposal or Acquisition Inquiry, provided, however, that Parent may only make such request once with respect to any particular Acquisition Proposal or Acquisition Inquiry (as well as once with respect to any publicly announced material change thereof), (E) fail to recommend against an Acquisition Proposal that is a tender or exchange offer subject to Regulation 14D under the Exchange Act in a Solicitation/Recommendation Statement on Schedule 14D-9 within ten (10) Business Days after commencement (within the meaning of Rule 14d-2 under the Exchange Act) of such tender or exchange offer (any action described in clauses (A) through (E) of this sentence being referred to as a “Change in Recommendation”) or (F) adopt or approve, or propose to adopt or approve, or allow the Company or any of its Subsidiaries to execute or enter into, any Alternative Acquisition Agreement (other than an Acceptable Confidentiality Agreement permitted under, and in compliance with Section 6.2).
(c) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the Acceptance Time:
(i) the Company or the Company Board receives a Superior Proposal, the Company Board may authorize and cause the Company to (A) effect a Change in Recommendation or (B) terminate this Agreement pursuant to Section 8.1(f) if: (1) such information Superior Proposal did not result from a material breach of Section 6.2; (2) the Company Board determines in good faith, after consultation with the Company’s outside legal counsel, that the failure to take such action would be inconsistent with the Company Board’s fiduciary duties under applicable Law; (3) the Company has delivered to Parent a written notice (the “Superior Proposal Notice”) stating that the Company Board intends to take such action; (4) the Company has provided Parent a copy of the proposed definitive agreements relating to the Superior Proposal (and has informed Parent of the identity of the Person making such Superior Proposal); (5) until 11:59 p.m., New York City time, on the fourth (4th) Business Day period commencing on the date of Parent’s receipt of such Superior Proposal Notice (the “Notice Period”), the Company shall have become false made its Representatives available and shall have discussed and negotiated with Parent in good faith (to the extent Parent requests to negotiate) regarding any proposed modifications or misleading amendments of this Agreement or a possible alternative transaction so that the Acquisition Proposal that is the subject of the Superior Proposal Notice ceases to be a Superior Proposal; (6) no earlier than the expiration of the Notice Period (as it may be extended pursuant to the preceding clause (5)), the Company Board shall have determined in good faith, (after consultation with the Company’s financial advisor and outside legal counsel), after taking into account any material respectproposed amendments or modifications to this Agreement made by Parent in writing during such period, that (x) such Acquisition Proposal that is the subject of the Superior Proposal Notice still constitutes a Superior Proposal, and (y) the failure to take such action would be inconsistent with the Company Board’s fiduciary duties to the Company’s stockholders under applicable Laws. The provisions of this Section 2.3(c)(i) shall also apply to any change to any of the financial terms (including the form and amount of payment of consideration) or other material amendment to any Superior Offer and shall require a new Superior Notice Proposal, except that the references to four (4) Business Days in connection therewith in clause (5) above shall be deemed to be two (2) Business Days; or
(ii) the Company Board may make a Change in Recommendation, other than in connection with or related to a Superior Proposal (which will be subject to Section 2.3(c)(i) and shall take all steps necessary not be subject to promptly cause this Section 2.3(c)(ii)) if: (A) a material Effect (that does not relate to any Acquisition Inquiry, Acquisition Proposal or Superior Proposal) that was not known to the Schedule 14D-9Company Board on the date of this Agreement (or if known, the consequences of which were not known or not reasonably foreseeable to the Company Board as of the date of this Agreement), (each, an “Intervening Event”); (B) the Company Board determines in good faith, after consultation with the Company’s outside legal counsel, that a failure to effect such a Change in Recommendation would be inconsistent with the Company Board’s fiduciary duties to the Company’s stockholders under applicable Law; (C) the Company has notified Parent in writing that it intends to effect such a Change in Recommendation pursuant to this Section 2.3(c)(ii) (which notice shall reasonably specify the facts and circumstances providing the basis of the Intervening Event and for the Company Board’s determination to effect the Change in Recommendation in detail), (D) until 11:59 p.m., New York City time, on the fourth (4th) Business Day after Parent receives such written notice pursuant to the foregoing clause (C), if requested by Parent, the Company shall have discussed and negotiated in good faith with Parent any proposed amendments or modifications to this Agreement or entry into an alternative transaction with Parent or its Affiliates; and (E) no earlier than the end of such negotiation period, the Company Board shall have determined in good faith, after consultation with the Company’s outside legal counsel), after considering and taking into account the terms of any proposed amendments of modifications to this Agreement made by Parent in writing during such period, that, the failure to effect a Change in Recommendation would be inconsistent with the Company Board’s fiduciary duties to the Company’s stockholders under applicable Law. The provisions of this Section 2.3(c)(ii) shall also apply to any material change to the facts and circumstances of any Intervening Event and shall require a new notice pursuant to clause (C) above, except that the references to four (4) Business Days in connection therewith in clause (D) above shall be deemed to be two (2) Business Days.
(d) In connection with the Offer, the Company shall instruct its transfer agent to furnish to Merger Sub a list, as supplemented or amended of a recent practicable date, of the record holders of Company Common Stock and their addresses, as well as mailing labels containing such names and addresses. The Company will furnish Merger Sub with such additional information (including any security position listings in the Company’s possession) and assistance as Merger Sub may reasonably request for purposes of communicating the Offer to correct such information, to be filed with the SEC and to be disseminated to holders of Company Common Stock. All information furnished in accordance with this Section 2.3(d) shall be held in confidence by Parent and Merger Sub in accordance with the requirements of the Confidentiality Agreement, and shall be used by Parent and Merger Sub only in connection with the communication of the Offer to the holders of Company Common Stock. If this Agreement shall be validly terminated, Parent and Merger Sub shall promptly furnish deliver (and shall use their respective commercially reasonable efforts to cause their respective agents and representatives to deliver) to the Company (or destroy) all copies and all extracts or summaries of such information concerning Parent then in their possession or Merger Sub that may be reasonably requested by the Company in connection with any action contemplated by this Section 2.3(a)(ii)control.
Appears in 1 contract
Actions of the Company. (a) Schedule 14D-9The Company hereby approves of and consents to the Offer.
(ib) On or as promptly as practicable after the Offer Commencement Date, the Company shall file with the SEC and, and (following or contemporaneously with the initial dissemination of the Offer Documents to holders of Company Common Stock Shares to the extent required by applicable federal securities laws, ) disseminate to holders of Company Common Stock Shares a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any amendments or supplements thereto, the “Schedule 14D-9”) that, subject to Section 6.3 5.3(c), shall (i) contain the unanimous recommendation of the Company Board that stockholders of the Recommendation. Except in connection with a Company tender their shares of Company Common Stock pursuant to the Offer (the “Company Board Recommendation”Change in Recommendation made in accordance with Section 5.3(c), (ii) contain a notice of appraisal rights in compliance with Section 262(d) of the DGCL, (iii) set the Stockholder List Date as the record date for purposes of receiving the notice required by Section 262(d)(2) of the DGCL, and (iv) not contain any untrue statement of a material fact or omission of a material fact necessary in order to make the statements made therein, in light of the circumstances under which they are made, not misleading. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 (including any amendment or supplement thereto) prior to the filing thereof with the SEC or the dissemination thereof to holders of Company Common Stock, and the Company shall give reasonable and good faith consideration to any such comments made by Parent or its counselSEC. The Company shall shall: (i) promptly provide Parent and its counsel with a copy of any written comments (and a summary description of any oral comments) comments received by the Company (or its counsel) from the SEC or its staff with respect to the Schedule 14D-9. The Company shall ; (Aii) respond promptly to any comments of the SEC or its staff except with respect to the Schedule 14D-9disclosure made relating to a Company Change in Recommendation in accordance with Section 5.3(c), (B) give Parent and its counsel a reasonable opportunity (to the extent practicable) to review and comment on any response to formulated in connection with such comments provided prior to the SEC or its staff and participate in the formulation of any response to such comments of the SEC or its staff, including the opportunity to participate in any discussions filing thereof with the SEC or its staff concerning such comments, SEC; and (Ciii) give reasonable and good faith consideration respond promptly to any such comments made in respect of any such proposed responses.
(ii) comments. To the extent required by the applicable requirements of the Exchange Act and the listing requirements of Nasdaq, rules and regulations thereunder: (iA) each of Parent, Merger Sub Purchaser and the Company shall promptly correct any information provided by it for use in the Schedule 14D-9 if such information shall have become false or misleading in any material respect, ; and (iiB) the Company shall take all steps necessary to promptly cause the Schedule 14D-9, as supplemented or amended to correct such information, to be filed with the SEC and to be disseminated to holders of Company Common StockSEC. Parent and Merger Sub Purchaser shall promptly furnish to the Company all information concerning Parent or Merger Sub Purchaser that may be reasonably requested by the Company in connection with any action contemplated by this Section 2.3(a)(ii1.3(b). To the extent requested by the Company, Parent shall cause the Schedule 14D-9 to be mailed or otherwise disseminated to the Company’s stockholders together with the Offer Documents disseminated to the Company’s stockholders.
(c) In connection with the Offer, the Company shall instruct its transfer agent to furnish to Purchaser a list, as of the most recent practicable date, of the record holders of Company Shares and their addresses, as well as mailing labels containing such names and addresses. The Company will furnish Purchaser with such additional information (including any security position listings in the Company’s possession or reasonably obtainable by the Company) and assistance as Purchaser may reasonably request for purposes of communicating the Offer to the record holders and beneficial holders of Company Shares. All information furnished in accordance with this Section 1.3(c) shall be held in confidence by Parent and Purchaser in accordance with the requirements of the letter agreement, dated April 11, 2007, between Parent and the Company, (the “Confidentiality Agreement”), and shall be used by Parent and Purchaser only in connection with the communication of the Offer and the dissemination of any proxy or information statement relating to the Merger to the holders of Company Shares.
Appears in 1 contract
Samples: Merger Agreement (Biosite Inc)
Actions of the Company. (a) Schedule 14D-9.
(i) On or as promptly as practicable after the Offer Commencement Date, the Company shall file with the SEC and, and (following or contemporaneously with the initial dissemination of the Offer Documents to holders of Company Common Stock to the extent required by applicable federal securities laws, and subject to the final sentence of Section 2.3(b)) disseminate to holders of Company Common Stock a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any amendments or supplements thereto, the “Schedule 14D-9”) that, subject to Section 6.3 2.3(e), shall (i) contain the unanimous recommendation of the Company Board that stockholders of the Company tender their shares of Company Common Stock pursuant to the Offer (the “Company Board Recommendation”), (ii) contain and a notice of appraisal rights in compliance with and to the extent required by Section 262(d) 262 of the DGCL, (iii) set the Stockholder List Date as the record date for purposes of receiving the notice required by Section 262(d)(2) of the DGCL, and (iv) not contain any untrue statement of a material fact or omission of a material fact necessary in order to make the statements made therein, in light of the circumstances under which they are made, not misleading. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 (including any amendment or supplement thereto) prior to the filing thereof with the SEC or the dissemination thereof to holders of Company Common Stock, Stock and the Company shall give reasonable and good faith consideration to any such comments made by Parent or and its counsel; provided, however, that the Company need not give Parent and its counsel such opportunity to review and comment in connection with any amendment or supplement to the Schedule 14D-9 that relates to any Acquisition Proposal or any Change in Recommendation. The Company shall promptly provide Parent and its counsel with a copy of any written comments (and a summary description of any oral comments) comments received by the Company (or its counsel) from the SEC or its staff with respect to the Schedule 14D-9. The Company shall (A) respond promptly to any comments of the SEC or its staff with respect to the Schedule 14D-9, (B) 14D-9 and give Parent and its counsel a reasonable opportunity (to the extent practicable) to review and comment on any response to such comments provided to the SEC or its staff staff; provided, however, that the Company need not give Parent and participate in the formulation of any response to its counsel such comments of the SEC or its staff, including the opportunity to participate review and comment in connection with any discussions with the SEC such response or its staff concerning such comments, and (C) give reasonable and good faith consideration comments that relate to any such comments made Acquisition Proposal or any Change in respect of any such proposed responsesRecommendation.
(iib) To the extent required by the applicable requirements of the Exchange Act and the listing requirements of Nasdaqrules and regulations thereunder, (i) each of Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Schedule 14D-9 if such information shall have become false or misleading in any material respect, and (ii) the Company shall take all steps necessary to promptly cause the Schedule 14D-9, as supplemented or amended to correct such information, to be filed with the SEC and and, subject to the final sentence of this Section 2.3(b), to be disseminated to holders of Company Common Stock. Parent and Merger Sub shall promptly furnish to the Company all information concerning Parent or Merger Sub that may be reasonably requested by the Company in connection with any action contemplated by this Section 2.3(a)(ii2.3(b). To the extent requested by the Company, Parent shall cause the Schedule 14D-9 and any supplement or amendment thereto to be mailed or otherwise disseminated to the holders of Company Common Stock together with the Offer Documents disseminated to the holders of Company Common Stock.
(c) Neither the Company Board nor any committee thereof shall, except as permitted by Section 2.3(e) or Section 6.2: (i) withdraw, modify, amend or qualify, in a manner adverse to Parent and Merger Sub, the Company Board Recommendation, or (ii) approve, recommend or declare advisable any Acquisition Proposal (any action described in clause “(i)” or clause “(ii)” being referred to as a “Change in Recommendation”); or (iii) cause the Company to enter into any letter of intent or similar document, agreement or commitment, agreement in principle (whether written or oral, binding or nonbinding), understanding, agreement or contract (other than a confidentiality agreement entered into in compliance with Section 6.2(a)) contemplating an Acquisition Proposal (any such contract, an “Alternative Acquisition Agreement”).
(d) The Schedule 14D-9 shall comply as to form in all material respects with the requirements of the Exchange Act. On the date filed with the SEC, on the date first published, sent or given to the Company’s stockholders and at all other times at or prior to the Acceptance Time, the Schedule 14D-9 shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that no representation is made by the Company with respect to any information supplied in writing by Parent or Merger Sub specifically for inclusion in the Schedule 14D-9. None of the information supplied or to be supplied by or on behalf of the Company for inclusion in the Offer Documents will, at the time the Offer Documents are filed with the SEC, at the time the Offer Documents are mailed to the stockholders of the Company, or at any other time prior to the Acceptance Time, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(e) Notwithstanding anything to the contrary contained in this Agreement, at any time prior to the Acceptance Time, the Company Board may:
(i) make a Change in Recommendation in response to an Acquisition Proposal or cause the Company to enter into an Alternative Acquisition Agreement concerning an Acquisition Proposal if (and prior to any such action): (A) such Acquisition Proposal did not result from a material breach of Section 6.2(a); (B) the Company Board (or a committee thereof) determines in good faith, (1) after consultation with the Company’s outside legal counsel, that such Acquisition Proposal would, if this Agreement or the Offer were not amended or an alternative transaction with Parent were not entered into, constitute a Superior Proposal and (2) after consultation with the Company’s outside legal counsel, that in light of such Acquisition Proposal, a failure to make a Change in Recommendation or to cause the Company to enter into an Alternative Acquisition Agreement concerning such Acquisition Proposal would be inconsistent with the Company Board’s fiduciary obligations to the Company’s stockholders under applicable Legal Requirements; (C) the Company delivers to Parent no less than four (4) Business Days prior to any Change in Recommendation or execution of any Alternative Acquisition Agreement a written notice (the “Superior Proposal Notice”) stating that the Company Board intends to take such action and (in the event the Company Board contemplates causing the Company to terminate this Agreement and enter into an Alternative Acquisition Agreement, including a copy of such Alternative Acquisition Agreement), including all required information under Section 6.2(b) (which notice shall not be deemed to constitute a Change in Recommendation); (D) during the four (4) Business Day period commencing on the date of Parent’s receipt of such Superior Proposal Notice (as may be extended pursuant to this Section 2.3(e)(i), the “Notice Period”), the Company shall, and shall cause its financial advisors, legal counsel and its representatives to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) regarding a possible amendment of this Agreement or the Offer or a possible alternative transaction so that the Acquisition Proposal that is the subject of the Superior Proposal Notice ceases to be a Superior Proposal; (E) after the expiration of the Notice Period, the Company Board (or a committee thereof) shall have determined in good faith, after taking into account any amendments to this Agreement and the Offer that Parent and Merger Sub have irrevocably agreed in writing to make as a result of the negotiations contemplated by clause “(D)” above, that (1) after consultation with the Company’s outside legal counsel, such Acquisition Proposal constitutes a Superior Proposal, and (2) after consultation with the Company’s outside legal counsel, the failure to make a Change in Recommendation or enter into such Alternative Acquisition Agreement would be inconsistent with the Company Board’s fiduciary obligations to the Company’s stockholders under applicable Laws; and (F) if the Company enters into an Alternative Acquisition Agreement concerning such Superior Proposal, the Company terminates this Agreement in accordance with Section 8.1(f); provided, however, that, if after compliance by the Company with clauses “(C)” through “(E)” of this Section 2.3(e)(i) with respect to any Superior Proposal, any material revisions are made to such Superior Proposal or any other Superior Proposal is made by or on behalf of the same Person or any of such Person’s Affiliates, the Company shall promptly deliver to Parent a “new written notice” notifying Parent of such revisions or such other Superior Proposal and shall comply with clauses “(C)” through “(E)” of this Section 2.3(e)(i) with respect to such “new written notice,” it being understood that a new Notice Period under this Section 2.3(e)(i) shall apply to any such “new written notice,” except that such Notice Period shall be two (2) Business Days instead of four (4) Business Days; or
(ii) make a Change in Recommendation not related to an Acquisition Proposal if (and prior to taking such action): (A) any event, occurrence, fact, or change materially affecting the Company that does not relate to any Acquisition Proposal and was not known to the Company Board or reasonably foreseeable on or prior to the date hereof (any such development or event, a “Change in Circumstances”) becomes known to the Company Board after the date of this Agreement; (B) the Company Board (or a committee thereof) determines in good faith, after consultation with its outside legal counsel, that, in light of such Change in Circumstances, a failure to effect a Change in Recommendation would be inconsistent with the Company Board’s fiduciary obligations to the Company’s stockholders under applicable Legal Requirements; (C) the Company delivers to Parent a written notice no less than four (4) Business Days prior to any Change in Recommendation stating that the Company Board intends to effect a Change in Recommendation and specifying in reasonable detail the facts and circumstances, and such Change in Recommendation is not effected prior to the fourth (4th) Business Day after Parent receives written notice from the Company confirming that the Company Board intends to effect such Change in Recommendation; (D) during such four (4) Business Day period, if requested by Parent, the Company engages in good faith negotiations with Parent to amend this Agreement or the Offer or enter into an alternative transaction so that a Change in Recommendation would no longer be necessary; and (E) at the end of such four (4) Business Day period, the Company Board (or a committee thereof) determines in good faith, after consultation with its outside legal counsel and after taking into account any amendments to this Agreement and the Offer that Parent and Merger Sub have irrevocably agreed in writing to make as a result of the negotiations contemplated by clause “(D)” above, that, in light of such Change in Circumstances, a failure to effect a Change in Recommendation would be inconsistent with the Company Board’s fiduciary obligations to the Company’s stockholders under applicable Laws.
(f) In connection with the Offer, the Company shall promptly furnish Merger Sub with mailing labels, security position listing, non-objecting beneficial owner list and any available listing or computer list containing the names and addresses of the record holders of the Company Common Stock as of the most recent practicable date, and shall furnish Merger Sub with such additional available information (including updated lists of holders of Company Common Stock and their addresses, mailing labels and lists of security positions and non-objecting beneficial owner lists) and such other assistance as Parent or its agents may reasonably request in communicating the Offer to, and soliciting tenders of Company Common Stock from, the Company’s record and beneficial stockholders. All information furnished in accordance with this Section 2.3(f) shall be held in confidence by Parent and Merger Sub in accordance with the requirements of the Confidentiality Agreement, and shall be used by Parent and Merger Sub only in connection with the communication of the Offer to the holders of Company Common Stock.
Appears in 1 contract
Actions of the Company. (a) Schedule 14D-9.
(i) On or as promptly as practicable after the Offer Commencement Datedate of the commencement of the Offer, the Company shall file with the SEC and, following or contemporaneously with the initial dissemination of the Offer Documents to holders of Company Common Stock to the extent required by applicable federal securities laws, disseminate to holders of Company Common Stock a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (together with any amendments or supplements theretosuch Solicitation/Recommendation Statement, as it may be amended from time to time, being referred to herein as the “Schedule 14D-9”) that, subject and shall disseminate the Schedule 14D-9 to the extent required by Rule 14d-9 under the Exchange Act. Subject to Section 6.3 5.2(d), the Schedule 14D-9 shall contain a recommendation by the Company’s Board of Directors (ithe “Company Board”) contain that the unanimous recommendation of Company’s stockholders accept the Company Board that stockholders of the Company Offer, tender their shares of Company Common Stock Shares pursuant to the Offer (the “Company Board Recommendation”)and, (ii) contain a notice of appraisal rights in compliance with Section 262(d) of the DGCL, (iii) set the Stockholder List Date as the record date for purposes of receiving the notice if required by Section 262(d)(2) applicable Law, adopt this Agreement. Prior to the filing of the DGCL, and (iv) not contain any untrue statement of a material fact or omission of a material fact necessary in order to make the statements made therein, in light of the circumstances under which they are made, not misleading. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 (including any amendment or supplement thereto) prior to the filing thereof with the SEC or the dissemination mailing thereof to holders the stockholders of the Company, or responding to any comments of the SEC with respect to the Schedule 14D-9, the Company Common Stockshall provide Parent a reasonable opportunity to review and comment on such Schedule 14D-9 or response (including the proposed final version thereof), and the Company shall give reasonable and good faith consideration to any such comments made by Parent or its counselParent. The Company shall promptly provide cooperate with Parent in mailing or otherwise disseminating the Schedule 14D-9 with the appropriate Offer Documents to the Company’s stockholders.
(b) Each of the Company, Parent and its counsel with a copy of any written comments (and a summary of any oral comments) received by the Company (or its counsel) from the SEC or its staff with respect to the Schedule 14D-9. The Company Acquisition Sub shall (A) respond promptly to any comments of the SEC or its staff with respect to the Schedule 14D-9, (B) give Parent and its counsel a reasonable opportunity (to the extent practicable) to review and comment on any response to such comments provided to the SEC or its staff and participate in the formulation of any response to such comments of the SEC or its staff, including the opportunity to participate in any discussions with the SEC or its staff concerning such comments, and (C) give reasonable and good faith consideration to any such comments made in respect of any such proposed responses.
(ii) To the extent required by the applicable requirements of the Exchange Act and the listing requirements of Nasdaq, federal securities Laws): (i) each of Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Schedule 14D-9 if and to the extent that such information shall have become false or misleading in any material respect, ; and (ii) the Company shall take all steps necessary to promptly cause the Schedule 14D-9, 14D-9 as supplemented or amended to correct such information, so corrected to be filed with the SEC and to be disseminated to the holders of Company Common StockShares. The Company shall promptly provide Parent and Merger Acquisition Sub shall promptly furnish to the Company all information concerning Parent or Merger Sub that may be reasonably requested and their counsel with a copy of any written comments and a written summary of any oral comments received by the Company or its counsel from the SEC or its staff with respect to the Schedule 14D-9.
(c) In connection with the Offer, the Company shall cause its transfer agent to furnish to Acquisition Sub a list, as of a recent date, of the record holders of Company Shares and their addresses, as well as mailing labels containing such names and addresses. The Company will furnish Acquisition Sub with such additional information (including any security position listings in the Company’s possession) and assistance as Acquisition Sub may reasonably request for purposes of communicating the Offer to the record and beneficial holders of Company Shares. All information furnished in accordance with this Section 1.3(c) shall be held in confidence by Parent and Acquisition Sub in accordance with the requirements of the confidentiality agreement, dated March 4, 2007, between Parent and the Company (the “Confidentiality Agreement”), and shall be used by Parent and Acquisition Sub only in connection with any action contemplated by this Section 2.3(a)(ii)the Offer and the Merger.
Appears in 1 contract
Actions of the Company. (a) Schedule 14D-9.
(i) On or as promptly as practicable after the Offer Commencement Date, the Company shall file with the SEC and, and (following or contemporaneously with the initial dissemination of the Offer Documents to holders of Company Common Stock to the extent required by applicable federal securities laws, and subject to the final sentence of Section 2.3(b)) disseminate to holders of Company Common Stock a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any amendments or supplements thereto, the “Schedule 14D-9”) that, subject to Section 6.3 2.3(d), shall (i) contain the unanimous recommendation of the Company Board that stockholders of the Company tender their shares of Company Common Stock pursuant to the Offer (the “Company Board Recommendation”), (ii) contain a notice of appraisal rights in compliance with Section 262(d) of the DGCL, (iii) shall set the Stockholder List Date as the record date for purposes of receiving the notice required by Section 262(d)(2) of the DGCL and also shall contain a notice of appraisal rights in compliance with Section 262(d) of the DGCL, and (iv) not contain any untrue statement which notice shall also be disseminated by the Company to the holders of a material fact or omission of a material fact necessary in order to make the statements made therein, in light Company Preferred Stock as of the circumstances under which they are made, not misleadingStockholder List Date concurrently with the dissemination of the Schedule 14D-9 to the holders of Company Common Stock. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 (including any amendment or supplement thereto) prior to the filing thereof with the SEC or the dissemination thereof to holders of Company Common Stock, and the Company shall give reasonable and good faith consideration to any such comments made by Parent or its counsel; provided, however, that the Company shall not be obligated to give Parent and its counsel such opportunity to review and comment in connection with any amendment or supplement to the Schedule 14D-9 that relates to any Acquisition Proposal or any Change in Recommendation. The Company shall promptly provide Parent and its counsel with a copy of any written comments (and a summary of any oral comments) received by the Company (or its counsel) from the SEC or its staff with respect to the Schedule 14D-914D-9 promptly after receipt. The Company shall (Ai) respond promptly to any comments of the SEC or its staff with respect to the Schedule 14D-9, (Bii) give Parent and its counsel a reasonable opportunity (to the extent practicable) to review and comment on any response to such comments provided to the SEC or its staff and participate in the formulation of any response to such comments of the SEC or its staff, including the opportunity to participate in any discussions with the SEC or its staff concerning such comments, and (Ciii) give reasonable and good faith consideration to any such comments made in respect of any such proposed responses; provided, however, that the Company shall not be obligated to give Parent and its counsel such opportunity to review and comment in connection with any such response or comments that relate to any Acquisition Proposal or any Change in Recommendation.
(iib) To the extent required by the applicable requirements of the Exchange Act and the listing requirements of Nasdaq, (i) each of Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Schedule 14D-9 if such information shall have become false or misleading in any material respect, and (ii) the Company shall take all steps necessary to promptly cause the Schedule 14D-9, as supplemented or amended to correct such information, to be filed with the SEC and and, subject to the final sentence of this Section 2.3(b), to be disseminated to holders of Company Common Stock. Parent and Merger Sub shall promptly furnish to the Company all information concerning Parent or Merger Sub that may be reasonably requested by the Company in connection with any action contemplated by this Section 2.3(a)(ii2.3(b). To the extent reasonably requested by the Company, Parent shall cause the Schedule 14D-9 and any supplement or amendment thereto to be mailed or otherwise disseminated to the holders of Company Common Stock together with the Offer Documents disseminated to the holders of Company Common Stock.
(c) The Company shall not permit either the Company Board or any committee thereof to, except as permitted by Section 2.3(d) or Section 6.2: (i) fail to make, withdraw, modify, amend or qualify, in a manner adverse to Parent and Merger Sub, the Company Board Recommendation, or propose publicly to take such action; (ii) approve, adopt or recommend or declare advisable any Acquisition Proposal, or propose publicly to take such action (any action described in clause (i) or clause (ii) being referred to as a “Change in Recommendation”); or (iii) permit the Company or any other Acquired Company to enter into any Contract or agreement (other than a confidentiality agreement entered into in compliance with Section 6.2(a)) contemplating an Acquisition Proposal (any such contract, an “Alternative Acquisition Agreement”). The Company agrees that in the event any Acquired Company or any Representative of an Acquired Company takes any action which, if taken by the Company, would constitute a breach of this Section 2.3 or Section 6.2, the Company shall be deemed to be in breach of this Section 2.3 or Section 6.2.
(d) Notwithstanding anything to the contrary contained in this Agreement, at any time prior to the Acceptance Time, the Company Board may:
(i) make a Change in Recommendation in response to an Acquisition Proposal and/or cause the Company to enter into an Alternative Acquisition Agreement concerning such an Acquisition Proposal if: (A) such Acquisition Proposal did not result from a material breach of Section 2.3 or Section 6.2; (B) the Company Board determines in good faith (1) after consultation with the Company’s outside legal counsel and financial advisor, that such Acquisition Proposal would constitute a Superior Proposal and (2) after consultation with the Company’s outside legal counsel, that in light of such Acquisition Proposal, a failure to make a Change in Recommendation and/or to cause the Company to enter into such Alternative Acquisition Agreement would reasonably be expected to be inconsistent with the Company Board’s fiduciary obligations to the Company’s stockholders under applicable Law; (C) the Company delivers to Parent a written notice (the “Superior Proposal Notice”) stating that the Company Board intends to take such action and (in the event the Company Board contemplates causing the Company to enter into an Alternative Acquisition Agreement) including a summary of the material terms and conditions of such Alternative Acquisition Agreement; (D) during the four (4) Business Day period commencing on the date of Parent’s receipt of such Superior Proposal Notice, the Company shall have made its representatives reasonably available for the purpose of engaging in negotiations with Parent (to the extent Parent desires to negotiate) regarding a possible amendment of this Agreement or the Offer so that the Acquisition Proposal that is the subject of the Superior Proposal Notice ceases to be a Superior Proposal; (E) after the expiration of the negotiation period described in clause (D) above, the Company Board shall have determined in good faith, after taking into account any amendments or adjustments to this Agreement or the Offer that Parent and Merger Sub have irrevocably agreed in writing to make as a result of the negotiations contemplated by clause (D) above, that (1) after consultation with the Company’s outside legal counsel and financial advisor, such Acquisition Proposal constitutes a Superior Proposal, and (2) after consultation with the Company’s outside legal counsel, the failure to make a Change in Recommendation and/or enter into such Alternative Acquisition Agreement would reasonably be expected to be inconsistent with the Company Board’s fiduciary obligations to the Company’s stockholders under applicable Law; and (F) if the Company enters into an Alternative Acquisition Agreement concerning such Superior Proposal, the Company terminates this Agreement in accordance with Section 8.1(f); provided, however, that, in the event of any material amendment or adjustment to the terms of any Superior Proposal, the Company shall deliver an additional Superior Proposal Notice and comply again with clauses (C) through (E) of this Section 2.3(d)(i), except that references to four (4) Business Days shall be deemed to be three (3) Business Days; or
(ii) make a Change in Recommendation not related to an Acquisition Proposal if: (A) any Effect (other than (i) changes in the Company Common Stock price, in and of itself or (ii) the fact that, in and of itself, the Company exceeds any internal or published projections, estimates or expectations of the Company’s revenue, earnings or other financial performance or results of operations for any period, in and of itself) arises affecting the Company that does not relate to any Acquisition Proposal and was not known to (or reasonably foreseeable by) the Company Board on or prior to the date hereof (or if known, the consequences of which were not known or reasonably foreseeable) (any such Effect unrelated to an Acquisition Proposal being referred to as an “Intervening Event”); (B) the Company Board determines in good faith, after consultation with its outside legal counsel, that, in light of such Intervening Event, a failure to effect a Change in Recommendation would reasonably be expected to be inconsistent with the Company Board’s fiduciary obligations to the Company’s stockholders under applicable Law; (C) such Change in Recommendation is not effected prior to the fourth (4th) Business Day after Parent receives written notice (the “Intervening Event Notice”) from the Company confirming that the Company Board intends to effect such Change in Recommendation and specifying in reasonable detail the reasons therefor; (D) during such four (4) Business Day period, if requested by Parent, the Company engages in good faith negotiations with Parent to amend or adjust this Agreement or the Offer; and (E) at the end of such four (4) Business Day period, the Company Board determines in good faith, after consultation with its outside legal counsel and after taking into account any amendments or adjustments to this Agreement or the Offer that Parent and Merger Sub have irrevocably agreed in writing to make as a result of the negotiations contemplated by clause (D) above, that, in light of such Intervening Event, a failure to effect a Change in Recommendation would reasonably be expected to be inconsistent with the Company Board’s fiduciary obligations to the Company’s stockholders under applicable Law; provided, however, that after compliance with clauses (C) through (E) of this Section 2.3(d)(ii) with respect to any Intervening Event, the Company shall have no further obligations with respect to such Intervening Event under clauses (C) through (E) of this Section 2.3(d)(ii).
(e) In connection with the Offer, the Company shall promptly after the date hereof instruct its transfer agent to promptly after such instruction furnish to Merger Sub a list, as of the most recent practicable date, of the record holders of Company Common Stock and their addresses, as well as mailing labels containing such names and addresses (the date of the list used to determine the Persons to whom the Offer Documents and Schedule 14D-9 are first disseminated, which date shall not be more than ten (10) Business Days prior to the date the Offer Documents and the Schedule 14D-9 are first disseminated, the “Stockholder List Date”). The Company will promptly furnish Merger Sub with such additional information (including any available computer file containing the names and addresses of record holders of Company Common Stock and lists or computer files of securities positions of Company Common Stock held in stock depositories in the Company’s possession) and assistance as Merger Sub may reasonably request for purposes of communicating the Offer to the holders of Company Common Stock. All information furnished in accordance with this Section 2.3(e) shall be held in confidence by Xxxxxx and Merger Sub (and their agents) in accordance with the requirements of the Confidentiality Agreement, and shall be used by Parent and Merger Sub (and their agents) only in connection with the communication of the Offer to the holders of Company Common Stock. If this Agreement is terminated, Parent and Merger Sub shall deliver, and shall use their reasonable best efforts to cause their agents to deliver, to the Company (or destroy, at their election) all copies, digital files, and extracts or summaries from such information furnished in accordance with this Section 2.3(e) then in their possession or control in the manner contemplated by the Confidentiality Agreement.
(f) Immediately following the Acceptance Time, the Company shall instruct its transfer agent to register the transfer of the shares of Company Common Stock accepted for payment by Merger Sub.
Appears in 1 contract
Actions of the Company. (a) Schedule 14D-9.
(i) On or as promptly as practicable after the filing of the Offer Documents with the SEC on the Offer Commencement Date, the Company shall file with the SEC and, following or and (contemporaneously with the initial dissemination of the Offer Documents to holders of Company Common Stock Stock, subject to the extent required by applicable federal securities lawsfinal sentence of Section 2.3(b), disseminate to holders of Company Common Stock Stock), a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any amendments or supplements thereto, the “Schedule 14D-9”) that, subject to Section 6.3 2.3(d), shall (i) contain the unanimous recommendation of the Company Board that Table of Contents stockholders of the Company tender their shares of Company Common Stock pursuant to the Offer (the “Company Board Recommendation”), (ii) contain a notice of appraisal rights in compliance with Section 262(d) of the DGCL, (iii) shall set the Stockholder List Date as the record date for purposes of receiving the notice required by Section 262(d)(2262(a)(2) of the DGCL and shall also contain the notice of appraisal rights in compliance with Section 262(d) of the DGCL, and (iv) not contain any untrue statement of a material fact or omission of a material fact necessary in order to make the statements made therein, in light of the circumstances under which they are made, not misleading. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 (including any amendment or supplement thereto) prior to the filing thereof with the SEC or the dissemination thereof to holders of Company Common Stock; provided, and however, that the Company shall need not give reasonable Parent and good faith consideration its counsel such opportunity to review and comment in connection with any amendment or supplement to the Schedule 14D-9 that relates to any such comments made by Parent Acquisition Proposal or its counselany Change in Recommendation. The Company shall promptly provide Parent and its counsel with a copy of any written comments (and a summary of any oral comments) received by the Company (or its counsel) from the SEC or its staff with respect to the Schedule 14D-9. The Company shall (A) respond promptly to any comments of the SEC or its staff with respect to the Schedule 14D-9, (B) 14D-9 and give Parent and its counsel a reasonable opportunity (to the extent practicable) to review and comment on any response to such comments provided to the SEC or its staff staff; provided, however, that the Company need not give Parent and participate in the formulation of any response to its counsel such comments of the SEC or its staff, including the opportunity to participate review and comment in connection with any discussions with the SEC such response or its staff concerning such comments, and (C) give reasonable and good faith consideration comments that relate to any such comments made Acquisition Proposal or any Change in respect of any such proposed responsesRecommendation.
(iib) To the extent required by the applicable requirements of the Exchange Act and the listing requirements of Nasdaqrules and regulations thereunder, (i) each of Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Schedule 14D-9 if such information shall have become false or misleading in any material respect, and (ii) the Company shall take all steps necessary to promptly cause the Schedule 14D-9, as supplemented or amended to correct such information, to be filed with the SEC and and, subject to the final sentence of this Section 2.3(b), to be disseminated to holders of Company Common Stock. Parent and Merger Sub shall promptly furnish to the Company all information concerning Parent or Merger Sub that may be reasonably requested by the Company in connection with any action contemplated by this Section 2.3(a)(ii2.3(b). To the extent requested by the Company, Parent shall cause the Schedule 14D-9 and any supplement or amendment thereto to be mailed or otherwise disseminated to the holders of Company Common Stock together with the Offer Documents disseminated to the holders of Company Common Stock.
(c) The Company shall not permit either the Company Board or any committee thereof to, except as permitted by Section 2.3(d) or Section 6.2: (i) fail to make, withdraw, modify, amend or qualify, in a manner adverse to Parent and Merger Sub, the Company Board Recommendation, or propose publicly to take such action; (ii) approve, recommend or declare advisable any Acquisition Proposal, or propose publicly to take such action (any action described in clause “(i)” or clause “(ii)” being referred to as a “Change in Recommendation”); or (iii) permit the Company to enter into any letter of intent, agreement in principle, agreement or contract (other than a confidentiality agreement entered into in compliance with Section 6.2(a)) contemplating an Acquisition Proposal (any such contract, an “Alternative Acquisition Agreement”).
(d) Notwithstanding anything to the contrary contained in this Agreement, at any time prior to the Acceptance Time, the Company Board may:
(i) make a Change in Recommendation in response to an Acquisition Proposal and/or cause the Company to enter into an Alternative Acquisition Agreement concerning such an Acquisition Proposal if: (A) such Acquisition Proposal did not result from a material breach of Section 6.2(a); (B) the Company Board (or a committee thereof) determines in good faith (1) after consultation with the Company’s outside legal counsel and financial advisor, that such Acquisition Proposal would, if this Agreement or the Offer were not amended or an alternative transaction with Parent were not entered into, constitute a Superior Proposal and (2) after consultation with the Company’s outside legal counsel, that in light of such Acquisition Proposal, a failure to make a Change in Recommendation and/or to cause the Company to enter into such Alternative Acquisition Agreement would reasonably be expected to be inconsistent with the Company Board’s fiduciary obligations to the Company’s stockholders under applicable Law; (C) the Company delivers to Parent a written notice (the “Superior Table of Contents Proposal Notice”) stating that the Company Board intends to take such action and (in the event the Company Board contemplates causing the Company to enter into an Alternative Acquisition Agreement) including a copy of such Alternative Acquisition Agreement and the identity of the potential counterparty to such Alternative Acquisition Agreement; (D) during the three (3) Business Day period commencing on the date of Parent’s receipt of such Superior Proposal Notice, the Company shall have made its representatives reasonably available for the purpose of engaging in negotiations with Parent (to the extent Parent desires to negotiate) regarding a possible amendment of this Agreement or the Offer or a possible alternative transaction so that the Acquisition Proposal that is the subject of the Superior Proposal Notice ceases to be a Superior Proposal; (E) after the expiration of the negotiation period described in clause “(D)” above, the Company Board (or a committee thereof) shall have determined in good faith, after taking into account any amendments to this Agreement and the Offer that Parent and Merger Sub have irrevocably agreed in writing to make as a result of the negotiations contemplated by clause “(D)” above, that (1) after consultation with the Company’s outside legal counsel and financial advisor, such Acquisition Proposal constitutes a Superior Proposal, and (2) after consultation with the Company’s outside legal counsel, the failure to make a Change in Recommendation and/or enter into such Alternative Acquisition Agreement would reasonably be expected to be inconsistent with the Company Board’s fiduciary obligations to the Company’s stockholders under applicable Law; and (F) if the Company enters into an Alternative Acquisition Agreement concerning such Superior Proposal, the Company terminates this Agreement in accordance with Section 8.1(f); provided, however, that, if after compliance with clauses “(C)” through “(E)” of this Section 2.3(d)(i) with respect to any Superior Proposal any material revisions are made to such Superior Proposal, the Company shall be required to deliver a new Superior Proposal Notice and comply again with clauses “(C)” through “(E)” of this Section 2.3(d)(i), except that references to three (3) Business Days shall be deemed to be two (2) Business Days; or
(ii) make a Change in Recommendation not related to an Acquisition Proposal if: (A) any change in circumstances arises affecting the Company that does not relate to any Acquisition Proposal and was not known to (or reasonably foreseeable by) the Company Board on or prior to the date hereof (any such change in circumstances unrelated to an Acquisition Proposal being referred to as a “Change in Circumstances”); (B) the Company Board (or a committee thereof) determines in good faith, after consultation with its outside legal counsel, that, in light of such Change in Circumstances, a failure to effect a Change in Recommendation would reasonably be expected to be inconsistent with the Company Board’s fiduciary obligations to the Company’s stockholders under applicable Law; (C) such Change in Recommendation is not effected prior to the third Business Day after Parent receives written notice (the “Change in Circumstance Notice”) from the Company confirming that the Company Board intends to effect such Change in Recommendation and specifying in reasonable detail the reasons therefor; (D) during such three (3) Business Day period, if requested by Parent, the Company engages in good faith negotiations with Parent to amend this Agreement or the Offer or enter into an alternative transaction; and (E) at the end of such three (3) Business Day period, the Company Board (or a committee thereof) determines in good faith, after consultation with its outside legal counsel and after taking into account any amendments to this Agreement and the Offer that Parent and Merger Sub have irrevocably agreed in writing to make as a result of the negotiations contemplated by clause “(D)” above, that, in light of such Change in Circumstances, a failure to effect a Change in Recommendation would reasonably be expected to be inconsistent with the Company Board’s fiduciary obligations to the Company’s stockholders under applicable Law.
(e) In connection with the Offer, as requested by Parent, the Company shall promptly furnish, and shall instruct its transfer agent to furnish, to Merger Sub, a list of its stockholders, mailing labels and any available listing or computer file containing the names and addresses of all record holders of shares of Company Common Stock and lists of securities positions of shares of Company Common Stock held in stock depositories and all other information in the Company’s possession or control regarding the beneficial holders of shares of Company Common Stock as of the most recent practicable date (the date of the list used to determine the Persons Table of Contents to whom the Offer Documents and Schedule 14D-9 are first disseminated, the “Stockholder List Date”), and of all persons becoming record holders subsequent to such date, and shall provide to Parent such additional information (including updated lists of stockholders, mailing labels and lists of securities positions) and such other assistance as Merger Sub may reasonably request for purposes of communicating the Offer to the holders of Company Common Stock. All information furnished in accordance with this Section 2.3(e) shall be held in confidence by Parent and Merger Sub (and their agents) in accordance with the requirements of the Confidentiality Agreement, and shall be used by Parent and Merger Sub (and their agents) only in connection with the communication of the Offer to the holders of Company Common Stock. If this Agreement is terminated, Parent and Merger Sub shall deliver, and shall use their reasonable best efforts to cause their agents to deliver, to the Company (or destroy, at the Company’s election) all copies and any extracts or summaries from such information furnished in accordance with this Section 2.3(e) then in their possession or control.
Appears in 1 contract
Actions of the Company. (a) Schedule 14D-9.
(i) On or as promptly as practicable after the Offer Commencement Date, the Company shall file with the SEC and, and (following or contemporaneously with the initial dissemination of the Offer Documents to holders of Company Common Stock Shares to the extent required by applicable federal securities laws and subject to the final sentence of this Section 1.3(a)) disseminate to holders of Company Shares, to the extent required by applicable federal securities laws, disseminate to holders of Company Common Stock a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any amendments or supplements thereto, the “"Schedule 14D-9”") that, subject to Section 6.3 1.3(b), shall (i) contain the unanimous recommendation of the Company Company's Board of Directors that stockholders of the Company accept the Offer and tender their shares of Company Common Stock Shares pursuant to the Offer and adopt this Agreement (the “"Company Board Recommendation”"), (ii) contain a notice of appraisal rights in compliance with Section 262(d) of the DGCL, (iii) set the Stockholder List Date as the record date for purposes of receiving the notice required by Section 262(d)(2) of the DGCL, and (iv) not contain any untrue statement of a material fact or omission of a material fact necessary in order to make the statements made therein, in light of the circumstances under which they are made, not misleading. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 (including any amendment or supplement thereto) prior to the filing thereof with the SEC or the dissemination thereof to holders of Company Common Stock, and SEC. Parent shall cooperate with the Company shall give reasonable and good faith consideration so as to any such comments made by Parent or its counselenable the Company to file the Schedule 14D-9 with the SEC on the Offer Commencement Date. The Company shall promptly provide Parent and its counsel with a copy (or if oral, a description) of any written comments (and a summary of any oral comments) received by the Company (or its counsel) from the SEC or its staff with respect to the Schedule 14D-9. The Company shall (A) respond promptly to any such comments of the SEC or its staff with respect to the Schedule 14D-9, (B) and give Parent and its counsel a reasonable opportunity (to the extent practicable) to review and comment on any response to such comments provided to the SEC or its staff and participate in the formulation of any response to such comments of the SEC or its staff, including the opportunity to participate in any discussions with the SEC or its staff concerning such comments, and (C) give reasonable and good faith consideration to any such comments made in respect of any such proposed responses.
(ii) . To the extent required by the applicable requirements of the Exchange Act and the listing requirements of Nasdaq, rules and regulations thereunder; (i) each of Parent, Merger Acquisition Sub and the Company shall promptly correct any information provided by it for use in the Schedule 14D-9 if such information shall have become false or misleading in any material respect, ; and (ii) the Company shall take all steps necessary to promptly cause the Schedule 14D-9, as supplemented or amended to correct such information, to be filed with the SEC and (subject to the final sentence of this Section 1.3(a)) to be disseminated to holders of Company Common StockShares. Parent and Merger Acquisition Sub shall promptly furnish to the Company all information concerning Parent or Merger Acquisition Sub that may be reasonably requested by the Company in connection with any action contemplated by this Section 2.3(a)(ii1.3(a). To the extent requested by the Company, Parent shall cause the Schedule 14D-9 to be mailed or otherwise disseminated to the Company's stockholders together with the Offer Documents disseminated to the Company's stockholders.
(b) Notwithstanding anything to the contrary contained in this Agreement, the Company's Board of Directors may withdraw, modify, amend or qualify the Company Board Recommendation in accordance with the provisions of Section 5.2(c).
(c) In connection with the Offer, the Company shall promptly furnish or cause to be promptly furnished (including by instructing its transfer agent to promptly furnish) to Acquisition Sub a list, as of a recent date, of the record holders of Company Shares and their addresses, as well as mailing labels containing such names and addresses. The Company will furnish Acquisition Sub with such additional information (including lists of holders of Company Shares, updated promptly from time to time at Acquisition Sub's request, and their addresses, mailing labels and any security position listings in the Company's possession) and assistance as Acquisition Sub may reasonably request for purposes of communicating the Offer to the holders of Company Shares. Unless Parent or Acquisition Sub is required to disclose any such information by Legal Requirements or applicable stock exchange rules, all information furnished in accordance with this Section 1.3(c) shall be held in confidence by Parent and Acquisition Sub in accordance with the requirements of the letter agreement, dated May 18, 2005, between Parent and the Company (the "Confidentiality Agreement"), and shall be used by Parent and Acquisition Sub only in connection with the communication of the Offer and the dissemination of any proxy or information statement relating to the Merger to the holders of Company Shares or as necessary to enable Acquisition Sub to accept Company Shares tendered pursuant to the Offer, or to consummate the Merger and the other transactions contemplated by this Agreement.
Appears in 1 contract
Actions of the Company. (a) Schedule 14D-9.
(i) On or as promptly as practicable after the Offer Commencement Date, and in any event within one business day after the Offer Commencement Date, the Company shall file with the SEC and, following or contemporaneously with the initial dissemination of the Offer Documents to holders of Company Common Stock to the extent required by applicable federal securities laws, disseminate to holders of Company Common Stock a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any amendments or supplements thereto, the “Schedule 14D-9”) that, subject to Section 6.3 1.3(d), shall (i) contain the unanimous recommendation of the Company Board that stockholders of the Company tender their shares of Company Common Stock Shares pursuant to the Offer (the “Company Board Recommendation”), (ii) contain a notice of appraisal rights in compliance . Following or contemporaneously with Section 262(d) the initial dissemination of the DGCLOffer Documents to holders of Company Shares, (iii) set to the Stockholder List Date as the record date for purposes of receiving the notice extent required by Section 262(d)(2) applicable federal securities laws, the Company shall disseminate to holders of Company Shares the DGCL, and (iv) not contain any untrue statement of a material fact or omission of a material fact necessary in order to make the statements made therein, in light of the circumstances under which they are made, not misleadingSchedule 14D-9. Parent and its counsel shall be given a reasonable opportunity to review and comment (and the Company shall reasonably consider in good faith the inclusion of any such comments provided in a timely manner) on the Schedule 14D-9 (including any amendment or supplement thereto) prior to the filing thereof with the SEC or the dissemination thereof to holders of Company Common StockShares; provided, and however, that the Company shall need not give reasonable Parent and good faith consideration its counsel such opportunity to review and comment in connection with any amendment or supplement to the Schedule 14D-9 that relates to any such comments made by Parent Acquisition Proposal or its counselany Change in Recommendation. The Company shall promptly provide Parent and its counsel with a copy or a description of any written comments (and a summary of any oral comments) received by the Company (or its counsel) from the SEC or its staff with respect to the Schedule 14D-9. The Company shall (A) respond promptly to any comments of the SEC or its staff with respect to the Schedule 14D-9, (B) 14D-9 and give Parent and its counsel a reasonable opportunity (to the extent practicable) to review and comment on (and the Company shall reasonably consider in good faith the inclusion of any such comments provided in a timely manner) any response to such comments provided to the SEC or its staff staff; provided, however, that the Company need not give Parent and participate in the formulation of any response to its counsel such comments of the SEC or its staff, including the opportunity to participate review and comment in connection with any discussions with the SEC such response or its staff concerning such comments, and (C) give reasonable and good faith consideration comments that relate to any such comments made Acquisition Proposal or any Change in respect of any such proposed responsesRecommendation.
(iib) To the extent required by the applicable requirements of the Exchange Act and the listing requirements of Nasdaqrules and regulations thereunder, (i) each of ParentParent and Acquisition Sub, Merger Sub on the one hand, and the Company Company, on the other hand, shall promptly correct any information provided by it for use in the Schedule 14D-9 if such information shall have become false or misleading in any material respect, respect or as otherwise required by applicable Legal Requirements; and (ii) the Company shall take all steps necessary to promptly cause the Schedule 14D-9, as supplemented or amended to correct such information, to be filed with the SEC and and, subject to the final sentence of this Section 1.3(b), to be disseminated to holders of Company Common StockShares. Parent and Merger Acquisition Sub shall promptly furnish to the Company all information concerning Parent or Merger Acquisition Sub that may be reasonably requested by the Company in connection with any action contemplated by this Section 2.3(a)(ii1.3(b). To the extent required by applicable Legal Requirements, the Company shall cause the Schedule 14D-9 and any supplement or amendment thereto to be mailed or otherwise disseminated to the holders of Company Shares together with the Offer Documents disseminated to the holders of Company Shares.
(c) Neither the Company Board nor any committee thereof shall, except as permitted by Section 1.3(d) or Section 5.2, (i) withdraw, withhold, modify, amend or qualify, or publicly propose or announce its intention to withdraw, withhold, modify, amend or qualify, in a manner adverse to Parent or Acquisition Sub, the Company Board Recommendation or fail to include the Company Board Recommendation in the Schedule 14D-9; (ii) adopt, authorize, approve or recommend, or resolve to or publicly propose or announce its intention to approve or recommend to the stockholders of the Company, any Acquisition Proposal; (iii) if (A) the Company has received an Acquisition Proposal that remains outstanding (and is not a tender offer or exchange offer addressed by clause (iv) of this sentence), and (B) such Acquisition Proposal has not been rejected by the Company, fail to reaffirm the Company Board Recommendation within five business days after receipt of a written request from Parent to do so (which request may only be made once with respect to such Acquisition Proposal or any material modification to such Acquisition Proposal), (iv) fail to recommend against any Acquisition Proposal that is a tender or exchange offer by a third party pursuant to Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act within 10 business days after the commencement of such tender offer or exchange offer (any action described in clause (i), (ii), (iii) or (iv) being referred to as a “Change in Recommendation”) or (v) allow the Company or any of its Subsidiaries to enter into any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement or other similar agreement to effect any Acquisition Proposal, including a definitive agreement with respect to a Acquisition Proposal (an “Alternative Acquisition Agreement”) (other than a confidentiality agreement entered into in compliance with Section 5.2(a)).
(d) Notwithstanding anything to the contrary contained in this Agreement, at any time prior to the Acceptance Time, the Company Board may:
(i) effect a Change in Recommendation in response to an Acquisition Proposal and/or cause the Company to enter into an Alternative Acquisition Agreement concerning an Acquisition Proposal if: (A) such Acquisition Proposal did not result from a breach of Section 5.2(a) (other than an immaterial breach);
Appears in 1 contract
Samples: Merger Agreement (Rosetta Stone Inc)
Actions of the Company. (aA) Schedule 14D-9The Company hereby approves of and consents to the Offer.
(iB) On or as promptly as practicable after the Offer Commencement Date, the Company shall file with the SEC and, and (following or contemporaneously with the initial dissemination of the Offer Documents to holders of Company Common Stock Shares to the extent required by applicable federal securities laws, ) disseminate to holders of Company Common Stock Shares a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any amendments or supplements thereto, the “"Schedule 14D-9”") that, subject to Section 6.3 5.3(c), shall (i) contain the unanimous recommendation of the Company Board that stockholders of the Recommendation. Except in connection with a Company tender their shares of Company Common Stock pursuant to the Offer (the “Company Board Recommendation”Change in Recommendation made in accordance with Section 5.3(c), (ii) contain a notice of appraisal rights in compliance with Section 262(d) of the DGCL, (iii) set the Stockholder List Date as the record date for purposes of receiving the notice required by Section 262(d)(2) of the DGCL, and (iv) not contain any untrue statement of a material fact or omission of a material fact necessary in order to make the statements made therein, in light of the circumstances under which they are made, not misleading. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 (including any amendment or supplement thereto) prior to the filing thereof with the SEC or the dissemination thereof to holders of Company Common Stock, and the Company shall give reasonable and good faith consideration to any such comments made by Parent or its counselSEC. The Company shall shall: (i) promptly provide Parent and its counsel with a copy of any written comments (and a summary description of any oral comments) comments received by the Company (or its counsel) from the SEC or its staff with respect to the Schedule 14D-9. The Company shall ; (Aii) respond promptly to any comments of the SEC or its staff except with respect to the Schedule 14D-9disclosure made relating to a Company Change in Recommendation in accordance with Section 5.3(c), (B) give Parent and its counsel a reasonable opportunity (to the extent practicable) to review and comment on any response to formulated in connection with such comments provided prior to the SEC or its staff and participate in the formulation of any response to such comments of the SEC or its staff, including the opportunity to participate in any discussions filing thereof with the SEC or its staff concerning such comments, SEC; and (Ciii) give reasonable and good faith consideration respond promptly to any such comments made in respect of any such proposed responses.
(ii) comments. To the extent required by the applicable requirements of the Exchange Act and the listing requirements of Nasdaq, rules and regulations thereunder: (iA) each of Parent, Merger Sub Purchaser and the Company shall promptly correct any information provided by it for use in the Schedule 14D-9 if such information shall have become false or misleading in any material respect, ; and (iiB) the Company shall take all steps necessary to promptly cause the Schedule 14D-9, as supplemented or amended to correct such information, to be filed with the SEC and to be disseminated to holders of Company Common StockSEC. Parent and Merger Sub Purchaser shall promptly furnish to the Company all information concerning Parent or Merger Sub Purchaser that may be reasonably requested by the Company in connection with any action contemplated by this Section 2.3(a)(ii1.3(b). To the extent requested by the Company, Parent shall cause the Schedule 14D-9 to be mailed or otherwise disseminated to the Company's stockholders together with the Offer Documents disseminated to the Company's stockholders.
(C) In connection with the Offer, the Company shall instruct its transfer agent to furnish to Purchaser a list, as of the most recent practicable date, of the record holders of Company Shares and their addresses, as well as mailing labels containing such names and addresses. The Company will furnish Purchaser with such additional information (including any security position listings in the Company's possession or reasonably obtainable by the Company) and assistance as Purchaser may reasonably request for purposes of communicating the Offer to the record holders and beneficial holders of Company Shares. All information furnished in accordance with this Section 1.3(c) shall be held in confidence by Parent and Purchaser in accordance with the requirements of the letter agreement, dated April 11, 2007, between Parent and the Company, (the "Confidentiality Agreement"), and shall be used by Parent and Purchaser only in connection with the communication of the Offer and the dissemination of any proxy or information statement relating to the Merger to the holders of Company Shares.
Appears in 1 contract
Samples: Merger Agreement (Inverness Medical Innovations Inc)
Actions of the Company. (a) Schedule 14D-9.
(i) On or as promptly as practicable after the Offer Commencement Date, the Company shall file with the SEC and, and (following or contemporaneously with the initial dissemination of the Offer Documents to holders of Company Common Stock to the extent required by applicable federal securities laws, and subject to the final sentence of Section 2.3(b)) disseminate to holders of Company Common Stock a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any amendments or supplements thereto, the “Schedule 14D-9”) that, subject to Section 6.3 2.3(d), shall (i) contain the unanimous recommendation of the Company Board that stockholders of the Company tender their shares of Company Common Stock pursuant to the Offer (the “Company Board Recommendation”), (ii) contain a notice of appraisal rights in compliance with Section 262(d) of the DGCL, (iii) shall set the Stockholder List Date as the record date for purposes of receiving the notice required by Section 262(d)(2) of the DGCL, DGCL and (ivalso shall contain a notice of appraisal rights in compliance with Section 262(d) not contain any untrue statement of a material fact or omission of a material fact necessary in order to make the statements made therein, in light of the circumstances under which they are made, not misleadingDGCL. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 (including any amendment or supplement thereto) prior to the filing thereof with the SEC or the dissemination thereof to holders of Company Common Stock, Stock and the Company shall give reasonable and good faith consideration to any such comments made by Parent or its counsel; provided, however, that the Company need not give Parent and its counsel such opportunity to review and comment in connection with any amendment or supplement to the Schedule 14D-9 that relates to any Acquisition Proposal or any Change in Recommendation. The Company shall promptly provide Parent and its counsel with a copy or a description of any written comments (and a summary of any oral comments) received by the Company (or its counsel) from the SEC or its staff with respect to the Schedule 14D-9. The Company shall (Ai) respond promptly to any comments of the SEC or its staff with respect to the Schedule 14D-9, (Bii) give Parent and its counsel a reasonable opportunity (to the extent practicable) to review and comment on any response to such comments provided to the SEC or its staff and participate in the formulation of any response to such comments of the SEC or its staff, including the opportunity to participate in any discussions with the SEC or its staff concerning such comments, and (Ciii) give reasonable and good faith consideration to any such comments made in respect of any such proposed responses; provided, however, that the Company need not give Parent and its counsel such opportunity to review and comment in connection with any such response or comments that relate to any Acquisition Proposal or any Change in Recommendation.
(iib) To the extent required by the applicable requirements of the Exchange Act and the listing requirements of Nasdaqrules and regulations thereunder, (i) each of Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Schedule 14D-9 if such information shall have become false or misleading in any material respect, and (ii) the Company shall take all steps necessary to promptly cause the Schedule 14D-9, as supplemented or amended to correct such information, to be filed with the SEC and and, subject to the final sentence of this Section 2.3(b), to be disseminated to holders of Company Common Stock. Parent and Merger Sub shall promptly furnish to the Company all information concerning Parent or Merger Sub that may be reasonably requested by the Company in connection with any action contemplated by this Section 2.3(a)(ii2.3(b). To the extent requested by the Company, Parent shall cause the Schedule 14D-9 and any supplement or amendment thereto to be mailed or otherwise disseminated to the holders of Company Common Stock together with the Offer Documents disseminated to the holders of Company Common Stock.
(c) Neither the Company Board nor any committee thereof shall, except as permitted by Section 2.3(d) or Section 6.2: (i) withdraw, modify, amend or qualify, in a manner adverse to Parent and Merger Sub, the Company Board Recommendation; (ii) approve, recommend or declare advisable any Acquisition Proposal; (iii) publicly propose or announce any intention to take any of the foregoing actions (any action described in clause (i), (ii) or clause (iii) being referred to as a “Change in Recommendation”); or (iv) cause the Company to enter into any contract (other than a confidentiality agreement entered into in compliance with Section 6.2(a)) contemplating an Acquisition Proposal (any such contract, an “Alternative Acquisition Agreement”).
(d) Notwithstanding anything to the contrary contained in this Agreement, at any time prior to the Acceptance Time, the Company Board may:
(i) make a Change in Recommendation in response to an Acquisition Proposal and/or cause the Company to enter into an Alternative Acquisition Agreement concerning an Acquisition Proposal if: (A) such Acquisition Proposal did not result from a material breach of Section 6.2(a); (B) the Company Board (or a committee thereof) determines in good faith (1) after consultation with the Company’s outside legal counsel and financial advisor, that such Acquisition Proposal would constitute a Superior Proposal and (2) after consultation with the Company’s outside legal counsel, that in light of such Acquisition Proposal, a failure to make a Change in Recommendation and/or to cause the Company to enter into such Alternative Acquisition Agreement would reasonably be expected to be inconsistent with the Company Board’s fiduciary obligations to the Company’s stockholders under applicable Law; (C) the Company delivers to Parent a written notice (the “Superior Proposal Notice”) stating that the Company Board intends to take such action and (in the event the Company Board contemplates causing the Company to enter into an Alternative Acquisition Agreement) including a summary of the material terms and conditions of such Alternative Acquisition Agreement; (D) during the three (3) Business Day period commencing on the date of Parent’s receipt of such Superior Proposal Notice, the Company shall have negotiated in good faith and have made its representatives reasonably available for the purpose of engaging in negotiations with Parent (to the extent Parent desires to negotiate) regarding a possible amendment of this Agreement or the Offer or a possible alternative transaction so that the Acquisition Proposal that is the subject of the Superior Proposal Notice ceases to be a Superior Proposal; (E) after the expiration of the negotiation period described in clause (D) above, the Company Board (or a committee thereof) shall have determined in good faith, after taking into account any amendments to this Agreement and the Offer that Parent and Merger Sub have irrevocably agreed in writing to make as a result of the negotiations contemplated by clause (D) above, that (1) after consultation with the Company’s outside legal counsel and financial advisor, such Acquisition Proposal constitutes a Superior Proposal, and (2) after consultation with the Company’s outside legal counsel, the failure to make a Change in Recommendation and/or enter into such Alternative Acquisition Agreement would reasonably be expected to be inconsistent with the Company Board’s fiduciary obligations to the Company’s stockholders under applicable Law; and (F) if the Company enters into an Alternative Acquisition Agreement concerning such Superior Proposal, the Company terminates this Agreement in accordance with Section 8.1(f); provided, however, that, in the event of any material amendment to the terms of any Superior Proposal, the Company shall deliver an additional Superior Proposal Notice and comply again with clauses (C) through (E) of this Section 2.3(d)(i); or
(ii) make a Change in Recommendation not related to an Acquisition Proposal if: (A) any material change in circumstances arises affecting the Company that does not relate to any Acquisition Proposal and was not known or reasonably foreseeable by the Company Board prior to the date hereof (or if known or reasonably foreseeable, the material consequences of which were not known) (any such change in circumstances unrelated to an Acquisition Proposal being referred to as a “Change in Circumstances”); (B) the Company Board (or a committee thereof) determines in good faith, after consultation with its outside legal counsel, that, in light of such Change in Circumstances, a failure to effect a Change in Recommendation would be inconsistent with the Company Board’s fiduciary duties to the Company’s stockholders under applicable Law; (C) such Change in Recommendation is not effected prior to the fourth (4th) Business Day after Parent receives written notice (the “Change in Circumstances Notice”) from the Company confirming that the Company Board intends to effect such Change in Recommendation and specifying in reasonable detail the reasons therefor; (D) during such four (4) Business Day period, if requested by Parent, the Company engages in good faith negotiations with Parent to amend this Agreement or the Offer or enter into an alternative transaction; and (E) at the end of such four (4) Business Day period, the Company Board (or a committee thereof) determines in good faith, after consultation with its outside legal counsel and after taking into account any amendments to this Agreement and the Offer that Parent and Merger Sub have irrevocably agreed in writing to make as a result of the negotiations contemplated by clause (D) above, that, in light of such Change in Circumstances, a failure to effect a Change in Recommendation would be inconsistent with the Company Board’s fiduciary duties to the Company’s stockholders under applicable Law; provided, however, that after compliance with clauses (C) through (E) of this Section 2.3(d)(ii) with respect to any Change in Circumstances, the Company shall have no further obligations under clauses (C) through (E) of this Section 2.3(d)(ii).
(e) In connection with the Offer, the Company shall instruct its transfer agent to furnish to Merger Sub a list, as of a recent date, of the record holders of Company Common Stock and their addresses, as well as mailing labels containing such names and addresses (the date of the list used to determine the Persons to whom the Offer Documents and Schedule 14D-9 are first disseminated, the “Stockholder List Date”). The Company will furnish Merger Sub with such additional information (including any security position listings in the Company’s possession) and assistance as Merger Sub may reasonably request for purposes of communicating the Offer to the holders of Company Common Stock. All information furnished in accordance with this Section 2.3(e) shall be held in confidence by Parent and Merger Sub (and their agents) in accordance with the requirements of the Confidentiality Agreement, and shall be used by Parent and Merger Sub (and their agents) only in connection with the communication of the Offer to the holders of Company Common Stock. If this Agreement is terminated, Parent and Merger Sub shall deliver, and shall use their reasonable best efforts to cause their agents to deliver, to the Company (or destroy, at the Company’s election) all copies and any extracts or summaries from such information furnished in accordance with this Section 2.3(e) then in their possession or control.
Appears in 1 contract
Actions of the Company. (aA) Schedule 14D-9The Company hereby approves of and consents to the Offer.
(iB) On or as promptly as practicable after the Offer Commencement Date, the Company shall file with the SEC and, and (following or contemporaneously with the initial dissemination of the Offer Documents to holders of Company Common Stock Shares to the extent required by applicable federal securities laws, ) disseminate to holders of Company Common Stock Shares a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any amendments or supplements thereto, the “"Schedule 14D-9”") that, subject to Section 6.3 5.3(c), shall (i) contain the unanimous recommendation of the Company Board that stockholders of the Recommendation. Except in connection with a Company tender their shares of Company Common Stock pursuant to the Offer (the “Company Board Recommendation”Change in Recommendation made in accordance with Section 5.3(c), (ii) contain a notice of appraisal rights in compliance with Section 262(d) of the DGCL, (iii) set the Stockholder List Date as the record date for purposes of receiving the notice required by Section 262(d)(2) of the DGCL, and (iv) not contain any untrue statement of a material fact or omission of a material fact necessary in order to make the statements made therein, in light of the circumstances under which they are made, not misleading. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 (including any amendment or supplement thereto) prior to the filing thereof with the SEC or the dissemination thereof to holders of Company Common Stock, and the Company shall give reasonable and good faith consideration to any such comments made by Parent or its counselSEC. The Company shall shall:
(i) promptly provide Parent and its counsel with a copy of any written comments (and a summary description of any oral comments) comments received by the Company (or its counsel) from the SEC or its staff with respect to the Schedule 14D-9. The Company shall ; (Aii) respond promptly to any comments of the SEC or its staff except with respect to the Schedule 14D-9disclosure made relating to a Company Change in Recommendation in accordance with Section 5.3(c), (B) give Parent and its counsel a reasonable opportunity (to the extent practicable) to review and comment on any response to formulated in connection with such comments provided prior to the SEC or its staff and participate in the formulation of any response to such comments of the SEC or its staff, including the opportunity to participate in any discussions filing thereof with the SEC or its staff concerning such comments, SEC; and (Ciii) give reasonable and good faith consideration respond promptly to any such comments made in respect of any such proposed responses.
(ii) comments. To the extent required by the applicable requirements of the Exchange Act and the listing requirements of Nasdaq, rules and regulations thereunder: (iA) each of Parent, Merger Sub Purchaser and the Company shall promptly correct any information provided by it for use in the Schedule 14D-9 if such information shall have become false or misleading in any material respect, ; and (iiB) the Company shall take all steps necessary to promptly cause the Schedule 14D-9, as supplemented or amended to correct such information, to be filed with the SEC and to be disseminated to holders of Company Common StockSEC. Parent and Merger Sub Purchaser shall promptly furnish to the Company all information concerning Parent or Merger Sub Purchaser that may be reasonably requested by the Company in connection with any action contemplated by this Section 2.3(a)(ii1.3(b). To the extent requested by the Company, Parent shall cause the Schedule 14D-9 to be mailed or otherwise disseminated to the Company's stockholders together with the Offer Documents disseminated to the Company's stockholders.
(C) In connection with the Offer, the Company shall instruct its transfer agent to furnish to Purchaser a list, as of the most recent practicable date, of the record holders of Company Shares and their addresses, as well as mailing labels containing such names and addresses. The Company will furnish Purchaser with such additional information (including any security position listings in the Company's possession or reasonably obtainable by the Company) and assistance as Purchaser may reasonably request for purposes of communicating the Offer to the record holders and beneficial holders of Company Shares. All information furnished in accordance with this Section 1.3(c) shall be held in confidence by Parent and Purchaser in accordance with the requirements of the letter agreement, dated April 11, 2007, between Parent and the Company, (the "Confidentiality Agreement"), and shall be used by Parent and Purchaser only in connection with the communication of the Offer and the dissemination of any proxy or information statement relating to the Merger to the holders of Company Shares.
Appears in 1 contract
Samples: Merger Agreement (Inverness Medical Innovations Inc)
Actions of the Company. (aA) Schedule 14D-9The Company hereby approves of and consents to the Offer.
(iB) On or as promptly as practicable after the Offer Commencement Date, the Company shall file with the SEC and, and (following or contemporaneously with the initial dissemination of the Offer Documents to holders of Company Common Stock Shares to the extent required by applicable federal securities laws, ) disseminate to holders of Company Common Stock Shares a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any amendments or supplements thereto, the “"Schedule 14D-9”") that, subject to Section 6.3 5.3(c), shall (i) contain the unanimous recommendation of the Company Board that stockholders of the Recommendation. Except in connection with a Company tender their shares of Company Common Stock pursuant to the Offer (the “Company Board Recommendation”Change in Recommendation made in accordance with Section 5.3(c), (ii) contain a notice of appraisal rights in compliance with Section 262(d) of the DGCL, (iii) set the Stockholder List Date as the record date for purposes of receiving the notice required by Section 262(d)(2) of the DGCL, and (iv) not contain any untrue statement of a material fact or omission of a material fact necessary in order to make the statements made therein, in light of the circumstances under which they are made, not misleading. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 the
(including any amendment or supplement theretoi) prior to the filing thereof with the SEC or the dissemination thereof to holders of Company Common Stock, and the Company shall give reasonable and good faith consideration to any such comments made by Parent or its counsel. The Company shall promptly provide Parent and its counsel with a copy of any written comments (and a summary description of any oral comments) comments received by the Company (or its counsel) from the SEC or its staff with respect to the Schedule 14D-9. The Company shall ; (Aii) respond promptly to any comments of the SEC or its staff except with respect to the Schedule 14D-9disclosure made relating to a Company Change in Recommendation in accordance with Section 5.3(c), (B) give Parent and its counsel a reasonable opportunity (to the extent practicable) to review and comment on any response to formulated in connection with such comments provided prior to the SEC or its staff and participate in the formulation of any response to such comments of the SEC or its staff, including the opportunity to participate in any discussions filing thereof with the SEC or its staff concerning such comments, SEC; and (Ciii) give reasonable and good faith consideration respond promptly to any such comments made in respect of any such proposed responses.
(ii) comments. To the extent required by the applicable requirements of the Exchange Act and the listing requirements of Nasdaq, rules and regulations thereunder: (iA) each of Parent, Merger Sub Purchaser and the Company shall promptly correct any information provided by it for use in the Schedule 14D-9 if such information shall have become false or misleading in any material respect, ; and (iiB) the Company shall take all steps necessary to promptly cause the Schedule 14D-9, as supplemented or amended to correct such information, to be filed with the SEC and to be disseminated to holders of Company Common StockSEC. Parent and Merger Sub Purchaser shall promptly furnish to the Company all information concerning Parent or Merger Sub Purchaser that may be reasonably requested by the Company in connection with any action contemplated by this Section 2.3(a)(ii1.3(b). To the extent requested by the Company, Parent shall cause the Schedule 14D-9 to be mailed or otherwise disseminated to the Company's stockholders together with the Offer Documents disseminated to the Company's stockholders.
(C) In connection with the Offer, the Company shall instruct its transfer agent to furnish to Purchaser a list, as of the most recent practicable date, of the record holders of Company Shares and their addresses, as well as mailing labels containing such names and addresses. The Company will furnish Purchaser with such additional information (including any security position listings in the Company's possession or reasonably obtainable by the Company) and assistance as Purchaser may reasonably request for purposes of communicating the Offer to the record holders and beneficial holders of Company Shares. All information furnished in accordance with this Section 1.3(c) shall be held in confidence by Parent and Purchaser in accordance with the requirements of the letter agreement, dated April 11, 2007, between Parent and the Company, (the "Confidentiality Agreement"), and shall be used by Parent and Purchaser only in connection with the communication of the Offer and the dissemination of any proxy or information statement relating to the Merger to the holders of Company Shares.
Appears in 1 contract
Samples: Merger Agreement (Inverness Medical Innovations Inc)
Actions of the Company. (a) Schedule 14D-9.
(i) On or as promptly as practicable after the Offer Commencement DateDate (subject to (x) reasonable cooperation by Parent as to the timing thereof and (y) the provision of any information required to be provided by Parent pursuant to Section 2.3(a)), the Company shall file with the SEC and, and (following or contemporaneously with the initial dissemination of the Offer Documents to holders of shares of Company Common Stock to the extent required by applicable federal securities laws, and subject to the final sentence of Section 2.3(b)) disseminate to holders of shares of Company Common Stock a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any amendments or supplements thereto, the “Schedule 14D-9”) that, subject to Section 6.3 2.3(d), shall (i) contain the unanimous recommendation of the Company Board that stockholders of the Company tender their shares of Company Common Stock pursuant to the Offer (the “Company Board Recommendation”), (ii) contain a notice of appraisal rights in compliance with Section 262(d) of the DGCL, (iii) set the Stockholder List Date as the record date for purposes of receiving the notice required by Section 262(d)(2) of the DGCL, and (iviii) not contain any untrue statement a notice of a material fact or omission of a material fact necessary appraisal rights in order to make the statements made therein, in light compliance with Section 262(d) of the circumstances under which they are made, not misleadingDGCL. Parent and Merger Sub shall promptly furnish or otherwise make available to the Company or the Company’s legal counsel any information concerning Parent or Merger Sub that is required in connection with any action contemplated by this Section 2.3(a). Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 (including any amendment or supplement thereto) prior to the filing thereof with the SEC or the dissemination thereof to holders of shares of Company Common Stock, and the Company shall give reasonable and good faith consideration to any such comments made by Parent or its counsel; provided, however, that the Company shall not be obligated to give Parent and its counsel such opportunity to review and comment in connection with any amendment or supplement to the Schedule 14D-9 that relates to any Acquisition Proposal or any Change in Recommendation. The Company shall promptly provide Parent and its counsel with a copy of any written comments (and a summary of any oral comments) received by the Company (or its counsel) from the SEC or its staff with respect to the Schedule 14D-9. The Company shall (A) respond promptly to any comments of the SEC or its staff with respect to the Schedule 14D-9, (B) give Parent and its counsel a reasonable opportunity (to the extent practicable) to review and comment on any response to such comments provided to the SEC or its staff and participate in the formulation of any response to such comments of the SEC or its staff, including the opportunity to participate in any discussions with the SEC or its staff concerning such comments, and (C) give reasonable and good faith consideration to any such comments made in respect of any such proposed responses; provided, however, that the Company shall not be obligated to give Parent and its counsel such opportunity to review and comment in connection with any such response or comments that relate to any Acquisition Proposal or any Change in Recommendation.
(iib) To the extent required by the applicable requirements of the Exchange Act and and/or the listing requirements of Nasdaq, (i) each of Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Schedule 14D-9 if such information shall have become false or misleading in any material respect, and (ii) the Company shall take all steps necessary to promptly cause the Schedule 14D-9, as supplemented or amended to correct such information, to be filed with the SEC and and, subject to the final sentence of this Section 2.3(b), to be disseminated to holders of shares of Company Common Stock. Parent and Merger Sub shall promptly furnish to the Company all information concerning Parent or Merger Sub that may be reasonably requested by the Company in connection with any action contemplated by this Section 2.3(a)(ii2.3(b). To the extent requested by the Company, Parent shall cause the Schedule 14D-9 and any supplement or amendment thereto to be mailed or otherwise disseminated to the holders of shares of Company Common Stock together with the Offer Documents disseminated to the holders of shares of Company Common Stock.
(c) Neither the Company Board nor any committee thereof shall, except as permitted by Section 2.3(d) or Section 6.2: (i) withdraw, modify, amend or qualify, in a manner adverse to Parent and Merger Sub, the Company Board Recommendation; (ii) approve, adopt or recommend to the Company’s stockholders any Acquisition Proposal (any action described in clause (i) or clause (ii) being referred to as a “Change in Recommendation”); or (iii) cause the Company to enter into any Contract (other than a confidentiality agreement entered into in compliance with Section 6.2(a)) contemplating an Acquisition Proposal (any such contract, an “Alternative Acquisition Agreement”).
(d) Notwithstanding anything to the contrary contained in this Agreement, at any time prior to the Acceptance Time, the Company Board may:
(i) (A) make a Change in Recommendation in response to an Acquisition Proposal and/or (B) cause the Company to enter into an Alternative Acquisition Agreement contemplating an Acquisition Proposal, in each case if: (1) such Acquisition Proposal did not result from a material breach of Section 6.2(a); (2) the Company Board (or a committee thereof) determines in good faith (x) after consultation with the Company’s outside legal counsel and financial advisor, that such Acquisition Proposal would constitute a Superior Proposal and (y) after consultation with the Company’s outside legal counsel, that in light of such Acquisition Proposal, a failure to make a Change in Recommendation and/or to cause the Company to enter into such Alternative Acquisition Agreement would be inconsistent with the Company Board’s fiduciary obligations to the Company’s stockholders under applicable Law; (3) the Company delivers to Parent a written notice (the “Superior Proposal Notice”) stating that the Company Board intends to take such action and, in the event the Company Board contemplates causing the Company to enter into an Alternative Acquisition Agreement, including a summary of the material terms and conditions of such Alternative Acquisition Agreement; (4) during the four (4) Business Day period commencing on the date of Parent’s receipt of such Superior Proposal Notice, the Company shall have made its representatives reasonably available for the purpose of engaging in negotiations with Parent (to the extent Parent desires to negotiate) regarding a possible amendment of this Agreement or the Offer or a possible alternative transaction so that the Acquisition Proposal that is the subject of the Superior Proposal Notice ceases to be a Superior Proposal; (5) after the expiration of the negotiation period described in clause (4) above, the Company Board (or a committee thereof) shall have determined in good faith, after taking into account any amendments or adjustments to this Agreement and the Offer that Parent and Merger Sub have irrevocably agreed in writing to make as a result of the negotiations contemplated by clause (4) above, that (x) after consultation with the Company’s outside legal counsel and financial advisor, such Acquisition Proposal continues to constitute a Superior Proposal, and (y) after consultation with the Company’s outside legal counsel, the failure to make a Change in Recommendation and/or enter into such Alternative Acquisition Agreement would be inconsistent with the Company Board’s fiduciary obligations to the Company’s stockholders under applicable Law; and (6) if the Company enters into an Alternative Acquisition Agreement concerning such Superior Proposal, the Company terminates this Agreement in accordance with Section 8.1(f); provided, however, that, in the event of any material amendment or adjustment to the terms of any Superior Proposal, the Company shall deliver an additional Superior Proposal Notice and comply again with clauses (3) through (5) of this Section 2.3(d)(i), except that references to four (4) Business Days shall be deemed to be three (3) Business Days; or
(ii) make a Change in Recommendation not related to an Acquisition Proposal if: (A) there is an Effect affecting the Company that does not relate to any Acquisition Proposal and was not known by the Company Board prior to the date hereof (or if known, the consequences of which were not known) (any such Effect unrelated to an Acquisition Proposal being referred to as an “Intervening Event”); (B) the Company Board (or a committee thereof) determines in good faith, after consultation with its outside legal counsel, that, in light of such Intervening Event, a failure to effect a Change in Recommendation would be inconsistent with the Company Board’s fiduciary obligations to the Company’s stockholders under applicable Law; (C) such Change in Recommendation is not effected prior to the fourth (4th) Business Day after Parent receives written notice (the “Intervening Event Notice”) from the Company confirming that the Company Board intends to effect such Change in Recommendation; (D) during such four (4) Business Day period, if requested by Parent, the Company engages in good faith negotiations with Parent to amend or adjust this Agreement or the Offer or enter into an alternative transaction; and (E) at the end of such four (4) Business Day period, the Company Board (or a committee thereof) determines in good faith, after consultation with its outside legal counsel and after taking into account any amendments or adjustments to this Agreement and the Offer that Parent and Merger Sub have irrevocably agreed in writing to make as a result of the negotiations contemplated by clause (D) above, that, in light of such Intervening Event, a failure to effect a Change in Recommendation would be inconsistent with the Company Board’s fiduciary obligations to the Company’s stockholders under applicable Law; provided, however, that after compliance with clauses (C) through (E) of this Section 2.3(d)(ii) with respect to any Intervening Event, the Company shall have no further obligations under clauses (C) through (E) of this Section 2.3(d)(ii).
(e) In connection with the Offer, the Company shall instruct its transfer agent to furnish to Merger Sub a list, as of the most recent practicable date, of the record holders of shares of Company Common Stock and their addresses, as well as mailing labels containing such names and addresses (the date of the list used to determine the Persons to whom the Offer Documents and Schedule 14D-9 are first disseminated, the “Stockholder List Date”). The Company will furnish Merger Sub with such additional information readily available to the Company (including any available computer file containing the names and addresses of record holders of shares of Company Common Stock and lists or computer files of securities positions of shares of Company Common Stock held in stock depositories in the Company’s possession) and assistance as Merger Sub may reasonably request for purposes of communicating the Offer to the holders of shares of Company Common Stock. All information furnished in accordance with this Section 2.3(e) shall be held in confidence by Xxxxxx and Merger Sub (and their agents) in accordance with the requirements of the Confidentiality Agreement, and shall be used by Parent and Merger Sub (and their agents) only in connection with the communication of the Offer to the holders of shares of Company Common Stock. If this Agreement is terminated, Parent and Merger Sub shall deliver, and shall use their reasonable best efforts to cause their agents to deliver, to the Company (or destroy, at the Company’s election) all copies, digital files, and extracts or summaries from such information furnished in accordance with this Section 2.3(e) then in their possession or control.
Appears in 1 contract