Company Acquisition Proposals. (a) Notwithstanding anything to the contrary contained in this Agreement but subject to Section 6.5(e), during the period (the “Go Shop Period”) beginning on the date of this Agreement and continuing until 11:59 p.m. (New York City time) on July 7, 2013 (the “No Shop Period Start Date”), the Company and its Representatives shall have the right to, directly or indirectly: (i) initiate, solicit, induce, cause, encourage and facilitate any Company Acquisition Proposals, including by way of providing access to the properties, offices, assets, books, records and personnel of the Company and the Company Subsidiaries and furnishing non-public information pursuant to (but only pursuant to) one or more Acceptable Confidentiality Agreements; provided, however, that any non-public information concerning the Company or the Company Subsidiaries that is provided to any Third Party (or such Third Party’s Representatives) in connection with a Company Acquisition Proposal shall, to the extent not previously provided to Parent or Merger Sub, be provided to Parent prior to or substantially concurrently with providing it to such Third Party; and (ii) engage in and maintain discussions or negotiations with respect to any Company Acquisition Proposal or inquiry, proposal or offer that constitutes or may reasonably be expected to lead to a Company Acquisition Proposal or otherwise cooperate with or assist or participate in, or facilitate any such inquiries, proposals, offers, discussions or negotiations or the making of any Company Acquisition Proposal. No later than one (1) Business Day after the No Shop Period Start Date, the Company shall notify Parent in writing of the identity of each Person that submitted a Company Acquisition Proposal prior to the No Shop Period Start Date (each, a “Go Shop Bidder”) and provide to Parent (x) a copy of any Company Acquisition Proposal made in writing and any other written material terms or proposals provided (including, to the extent not included therein, a copy of the acquisition agreement and any related transaction documents and financing commitments, if any) to the Company or any Company Subsidiary and (y) a written summary of the material terms of any Company Acquisition Proposal not made in writing (including any material terms proposed orally or supplementally). (b) Except as expressly permitted by this Section 6.5, from and after the No Shop Period Start Date until the earlier of the Effective Time and the date on which this Agreement is terminated pursuant to Section 8.1, neither the Company nor any of the Company Subsidiaries nor any of their respective officers, directors or employees shall, and the Company shall instruct its and the Company Subsidiaries’ Representatives not to, directly or indirectly through another Person, (i) whether publicly or otherwise, solicit, initiate, induce, cause, encourage or facilitate any inquiry, discussion, offer or request that constitutes, or could reasonably be expected to lead to, a Company Acquisition Proposal, including from any Go Shop Bidder (an “Inquiry”), (ii) enter into, continue, conduct, engage, maintain or otherwise participate in any discussions or negotiations regarding, or furnish to any Third Party (including any Go Shop Bidder) any non-public information in connection with, or otherwise cooperate in any way with, or facilitate in any way any effort by, any Third Party (including any Go Shop Bidder) in connection with any Company Acquisition Proposal or Inquiry, (iii) approve, endorse or recommend a Company Acquisition Proposal (including any Company Acquisition Proposal submitted by a Go Shop Bidder prior to the No Shop Period Start Date), or enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, share purchase agreement, asset purchase agreement, share exchange agreement, option agreement or other similar definitive agreement (other than an Acceptable Confidentiality Agreement entered into in accordance with this Section 6.5) providing for or relating to a Company Acquisition Proposal with any Third Party (including any Go Shop Bidder) (an “Alternative Acquisition Agreement”), (iv) take any action to make the provisions of any Takeover Statute or any restrictive provision of any applicable anti-takeover provision in the Company Charter or Company Bylaws inapplicable to any transactions contemplated by a Company Acquisition Proposal or (v) resolve, agree, approve, recommend or publicly propose or agree to do any of the foregoing. Notwithstanding the foregoing, nothing in this Agreement shall prohibit the Company or any of its Representatives from (A) (1) informing any Third Party of the provisions set forth in this Section 6.5 or (2) contacting the Person (or the Representatives of such Person) that made any Company Acquisition Proposals solely for the purpose of seeking clarification of solely those terms or conditions of such Company Acquisition Proposal that require clarification so as to determine whether such Company Acquisition Proposal is, or is reasonably likely to result in, a Superior Proposal; and (B) to the extent the Relevant Period extends beyond the No Shop Period Start Date with respect to any Qualified Go Shop Proposal, continuing to engage during such portion of the Relevant Period in the activities described in Section 6.5(a) with respect to the Go Shop Bidder that submitted such Qualified Go Shop Proposal (and the restrictions set forth in this Section 6.5(b) and Sections 6.5(d) and 6.5(g) will not apply until the earlier of the expiration of the Relevant Period and the withdrawal of such Qualified Go Shop Proposal). (c) Notwithstanding anything to the contrary in this Section 6.5, at any time following the No Shop Period Start Date and prior to obtaining the Company Stockholder Approval, the Company may, directly or indirectly through any Representative, in response to an unsolicited bona fide written Company Acquisition Proposal by a Third Party (whether or not a Go Shop Bidder) made after the date of this Agreement (that did not result from a breach of this Section 6.5) (i) provide access to the properties, offices, assets, books, records and personnel of the Company and the Company Subsidiaries and furnish non-public information to such Third Party (and such Third Party’s Representatives) making the Company Acquisition Proposal (provided, however, that (A) prior to so furnishing such non-public information, the Company receives from the Third Party an executed Acceptable Confidentiality Agreement and (B) any non-public information concerning the Company or the Company Subsidiaries that is provided to such Third Party shall, to the extent not previously provided to Parent or Merger Sub, be provided to Parent prior to or substantially concurrently with providing it to such Third Party), and (ii) engage in discussions or negotiations with such Third Party (and such Third Party’s Representatives) with respect to the Company Acquisition Proposal if, in the case of each of clauses (i) and (ii): (x) the Company Board (or any committee thereof) determines in good faith, after consultation with outside legal counsel and financial advisors, that such Company Acquisition Proposal constitutes, or is reasonably likely to result in, a Superior Proposal, and (y) the Company Board (or any committee thereof) determines in good faith, after consultation with outside legal counsel, that failure to take such action would be inconsistent with the directors’ duties under applicable Law. (d) In addition to the other obligations of the Company set forth in this Section 6.5, after the No Shop Period Start Date, the Company shall notify Parent promptly (but in no event later than 24 hours) after (i) receipt after the No Shop Period Start Date of any Company Acquisition Proposal or any request for access to the properties, offices, assets, books, records and personnel of the Company or any Company Subsidiary or any nonpublic information relating to the Company or any Company Subsidiary by any Third Party in connection with a Company Acquisition Proposal or any Inquiry from any Person seeking to have discussions or negotiations with the Company relating to a possible Company Acquisition Proposal (such notice shall indicate the identity of the Third Party making the Company Acquisition Proposal, request or Inquiry and the material terms and conditions of such Company Acquisition Proposal, request or Inquiry, including a copy thereof if in writing and any related material documentation or material correspondence), and (ii) it enters into any discussions or negotiations concerning any Company Acquisition Proposal, provides access to the properties, offices, assets, books, records and personnel of the Company or any Company Subsidiary or furnishes any nonpublic information to any Third Party pursuant to Section 6.5(c), and, in each case, the Company shall keep Parent reasonably informed of the status and material terms of any such Company Acquisition Proposals, Inquiries, requests, discussions or negotiations on a reasonably current basis (including any change to the financial terms or other material terms and conditions thereof and the terms of any and all material agreements in connection therewith (including any financing arrangements)), including by providing a copy of all material documentation or material correspondence relating thereto. (e) Except as permitted by this Section 6.5(e), neither the Company Board nor any committee thereof shall (i) withhold, withdraw, modify or qualify (or publicly propose to withhold, withdraw, modify or qualify), in a manner adverse to any Parent Party, the Company Recommendation or the Company OP General Partner’s approval of the Partnership Merger, (ii) approve, adopt, endorse or recommend (or publicly propose to approve, adopt, endorse or recommend) any Company Acquisition Proposal, (iii) fail to include the Company Recommendation or the Company OP General Partner’s approval of the Partnership Merger in the Proxy Statement or any Schedule 14D-9, as applicable, (iv) fail to publicly recommend against any Company Acquisition Proposal that is publicly announced or disclosed within ten (10) Business Days of the request of Parent and/or reaffirm the Company Recommendation within ten (10) Business Days of the request of Parent (any of the actions described in clauses (i), (ii), (iii) and (iv) of this Section 6.5(e), an “Adverse Recommendation Change”), or (v) approve, adopt, declare advisable or recommend (or agree to, resolve or propose to approve, adopt, declare advisable or recommend), or cause the Company to enter into, any Alternative Acquisition Agreement (other than an Acceptable Confidentiality Agreement entered into in accordance with this Section 6.5). Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Company Stockholder Approval, the Company Board (or any committee thereof) shall be permitted to effect an Adverse Recommendation Change and cause the Company to terminate this Agreement pursuant to Section 8.1(c)(ii) if the Company Board (or any committee thereof) (x) has received a bona fide Company Acquisition Proposal (whether or not a Qualified Go Shop Proposal or from a Go Shop Bidder) that, in the good faith determination of the Company Board (or any committee thereof), after consultation with outside legal counsel and financial advisors, constitutes a Superior Proposal, and such Company Acquisition Proposal is not withdrawn, and (y) determines in good faith, after consultation with outside legal counsel, that failure to take such action would be inconsistent with the directors’ duties under applicable Law; provided, however, that neither the Company Board nor any committee thereof shall be entitled to effect an Adverse Recommendation Change or cause the Company to terminate this Agreement pursuant to this Section 6.5(e) unless: (i) the Company has provided a written notice (a “Notice of Superior Proposal”) to Parent and Merger Sub that the Company intends to take such action, specifying in reasonable detail the reasons therefor and describing the material terms and conditions of, and attaching a complete copy of, the Superior Proposal and the terms of any and all agreements in connection therewith, including any financing arrangements, that is the basis of such action (it being understood that such material terms shall include the identity of the Third Party); (ii) during the four (4) Business Day period following Parent’s and Merger Sub’s receipt of the Notice of Superior Proposal, the Company shall, and shall cause its Representatives to, negotiate with Parent and Merger Sub in good faith (to the extent Parent and Merger Sub desire to negotiate) to make such adjustments in the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute a Superior Proposal; (iii) following the close of business on the last day of the four (4) Business Day period, the Company Board (or any committee thereof) shall have determined in good faith (x) after consultation with outside legal counsel and financial advisors, taking into account any changes to this Agreement proposed in writing by Parent and Merger Sub in response to the Notice of Superior Proposal, that the Superior Proposal giving rise to the Notice of Superior Proposal continues to constitute a Superior Proposal and (y) after consultation with outside legal counsel, that failure to effect an Adverse Recommendation Change would be inconsistent with the directors’ duties under applicable Law; and (iv) in connection with such Adverse Recommendation Change, the Company promptly thereafter terminates this Agreement pursuant to Section 8.1(c)(ii), concurrently pays the Termination Payment pursuant to Section 8.3(a)(ii) and then promptly enters into an Alternative Acquisition Agreement with respect to such Superior Proposal. If, following such four (4) Business Day period, the Company Board (or applicable committee) determines not to effect an Adverse Recommendation Change because the Company Acquisition Proposal ceased to constitute a Superior Proposal and thereafter any amendment to the financial terms or any other material amendment of such Company Acquisition Proposal that previously constituted a Superior Proposal occurs, such amendment shall require a new Notice of Superior Proposal, and the Company shall be required to comply again with the requirements of this Section 6.5(e), provided that references to the four (4) Business Day period above shall then be deemed to be references to a two (2) Business Day period. Notwithstanding the foregoing, the Company shall be obligated to negotiate with Parent and Merger Sub for such two (2) Business Day period pursuant to the foregoing sentence on only one occasion if, but only if, the Company Acquisition Proposal relates to a Qualified Go Shop Proposal before (y) the Company Board (or any committee thereof) can effect an Adverse Recommendation Change or (z) the Company can terminate this Agreement pursuant to Section 8.1(c)(ii), in each case, with respect to such Company Acquisition Proposal. (f) Nothing contained in this Section 6.5 or elsewhere in this Agreement shall prohibit the Company or the Company Board (or any committee thereof), directly or indirectly through its Representatives, from disclosing to the Company’s stockholders a position contemplated by Rule 14e-2(a) or Rule 14d-9 promulgated under the Exchange Act or making any disclosure to its stockholders if the Company Board (or any committee thereof) has determined, after consultation with outside legal counsel, that the failure to do so would be inconsistent with applicable Law; provided, however, that any disclosure of a position contemplated by Rule 14e-2(a) under the Exchange Act other than a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) promulgated under the Exchange Act, an express rejection of any applicable Company Acquisition Proposal or an express reaffirmation of the Company Recommendation to the Company’s stockholders in favor of the Merger shall be deemed to be an Adverse Recommendation Change; and provided further that the taking of any such position or making of any such disclosure con

Appears in 2 contracts

Sources: Merger Agreement (American Realty Capital Properties, Inc.), Merger Agreement (CapLease, Inc.)

Company Acquisition Proposals. (a) Notwithstanding anything to the contrary contained in this Agreement but subject to Section ~~6.5(e~~7.5(f), during the period (the “Go Shop Period”) beginning on the date of this Agreement and continuing until 11:59 p.m. (New York City time) on ~~July 7~~April 16, ~~2013~~ 2014 (the “No Shop Period Start Date”), the Company and its Representatives shall have the right (acting under the direction of the Company Board or any committee thereof) to, directly or indirectly: , (i) initiate, solicit, induce, cause, encourage and facilitate any Company Acquisition Proposals, including by way of providing ~~access to the properties, offices, assets, books, records and personnel of the Company and the Company Subsidiaries and furnishing~~ non-public information pursuant to (but only pursuant to) one or more Acceptable Confidentiality Agreements; provided, however, that any non-public information concerning the Company or the Company Subsidiaries that is provided to ~~any~~ such Third Party ~~(or such Third Party’s Representatives) in connection with a Company Acquisition Proposal~~ shall, to the extent not previously provided to Parent or Merger Sub, be provided to Parent or Merger Sub prior to or ~~substantially concurrently~~ simultaneously with providing it to such Third Party; , and (ii) engage in and maintain discussions or negotiations with respect to any ~~Company Acquisition Proposal or~~ inquiry, proposal or offer that constitutes or may reasonably be expected to lead to a Company Acquisition Proposal or otherwise cooperate with or assist or participate in, or facilitate any such inquiries, proposals, offers, discussions or negotiations or the making of any Company Acquisition Proposal, including providing access to or otherwise making available non-public information in accordance with the terms set forth in Section 7.5(a)(i). No later than one (1) Business Day after the No Shop Period Start Date, the Company shall notify Parent in writing of the identity of each Person that submitted a Company Acquisition Proposal prior to the No Shop Period Start Date (each, a “Go Shop Bidder”) and provide to Parent (x) a copy of any Company Acquisition Proposal made in writing and any other written ~~material~~ terms or proposals provided (~~including, to the extent not included therein, a copy of the acquisition agreement and any related transaction documents and~~ including financing commitments~~, if any~~) to the Company or any Company Subsidiary and (y) a written summary of the material terms of any Company Acquisition Proposal not made in writing (including any ~~material~~ terms proposed orally or supplementally). (b) Except as expressly permitted by this Section ~~6.5~~7.5, from and after the No Shop Period Start Date until the ~~earlier of the~~ Effective ~~Time and the date on which this Agreement is terminated pursuant to Section 8.1~~Time, neither the Company nor any of the Company Subsidiaries nor any of their respective officers, directors or employees shall, and the Company shall instruct and cause its and the Company Subsidiaries’ Representatives not to, directly or indirectly through another Person, (i) whether publicly or otherwise, solicit, initiate, induce, cause, encourage or facilitate any inquiry, discussion, offer or request that constitutes, or could reasonably be expected to lead to, a Company Acquisition Proposal, including from any Go Shop Bidder (an “Inquiry”), (ii) enter into, continue, conduct, engage, maintain or otherwise participate in any discussions or negotiations regarding, or furnish to any Third Party (including any Go Shop Bidder) any non-public information in connection with, or otherwise cooperate in any way with, or facilitate in any way any effort by, any Third Party (including any Go Shop Bidder) in connection with any Company Acquisition Proposal or Inquiry, (iii) approve, endorse or recommend a Company Acquisition Proposal (including any Company Acquisition Proposal submitted by a Go Shop Bidder prior to the No Shop Period Start Date), or enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, share purchase agreement, asset purchase agreement, share exchange agreement, option agreement or other similar definitive agreement (other than an Acceptable Confidentiality Agreement entered into in accordance with this Section ~~6.5~~7.5) providing for or relating to a Company Acquisition Proposal with any Third Party (including any Go Shop Bidder) (an “Alternative Acquisition Agreement”), (iv) amend or grant any waiver or release under, or fail to enforce, any standstill or similar contract with respect to any class of equity securities of the Company or any of the Company Subsidiaries, (v) take any action to make the provisions of any Takeover Statute or any restrictive provision of any applicable anti-takeover provision in the Company Charter or Company Bylaws inapplicable to any transactions contemplated by a Company Acquisition Proposal (and, to the extent permitted thereunder, the Company shall promptly take all steps necessary to terminate any waiver that may have been previously granted to any Person other than Parent or any of its Affiliates under any such provisions), or (vvi) resolve, agree, approve, recommend or publicly propose or agree to do any of the foregoing. Notwithstanding the foregoing, nothing in this Agreement shall prohibit the Company or any of its Representatives from (A) (1) informing any Third Party of the provisions set forth in this Section 6.5 or (2) contacting the Person (or the Representatives of such Person) that made any Company Acquisition Proposals solely for the purpose of seeking clarification of solely those terms or conditions of such Company Acquisition Proposal that require clarification so as to determine whether such Company Acquisition Proposal is, or is reasonably likely to result in, a Superior Proposal; and (B) to the extent the Relevant Period extends beyond the No Shop Period Start Date with respect to any Qualified Go Shop Proposal, continuing to engage during such portion of the Relevant Period in the activities described in Section 6.5(a) with respect to the Go Shop Bidder that submitted such Qualified Go Shop Proposal (and the restrictions set forth in this Section 6.5(b) and Sections 6.5(d) and 6.5(g) will not apply until the earlier of the expiration of the Relevant Period and the withdrawal of such Qualified Go Shop Proposal). (c) Notwithstanding anything to the contrary in this Section ~~6.5~~7.5, at any time following the No Shop Period Start Date and prior to ~~obtaining~~ the ~~Company Stockholder Approval~~Offer Closing (and in no event after that time), the Company may, directly or indirectly through any Representative, in response to an unsolicited bona fide written Company Acquisition Proposal by a Third Party ~~(whether or not a Go Shop Bidder)~~ made after the date of this Agreement (that did not result from a breach of this Section ~~6.5~~7.5; provided that any bona fide written Company Acquisition Proposal received from a Go Shop Bidder and not actively solicited following the No Shop Period Start Date shall not be deemed a solicitation of a Company Acquisition Proposal in breach of this Section 7.5) (i) ~~provide access to the properties, offices, assets, books, records and personnel of the Company and the Company Subsidiaries and~~ furnish non-public information to such Third Party (and such Third Party’s Representatives) making ~~the~~ a Company Acquisition Proposal (provided, however, that (A) prior to so furnishing such ~~non-public~~ information, the Company receives from the Third Party an executed Acceptable Confidentiality ~~Agreement~~ Agreement, and (B) any non-public information concerning the Company or the Company Subsidiaries that is provided to such Third Party shall, to the extent not previously provided to Parent or Merger Sub, be provided to Parent or Merger Sub prior to or ~~substantially concurrently~~ simultaneously with providing it to such Third Party), and (ii) engage in discussions or negotiations with such Third Party (and such Third Party’s Representatives) with respect to the Company Acquisition Proposal if, in the case of each of clauses (i) and (ii): (x) the Company Board ~~(or any committee thereof)~~ determines in good faith, after consultation with outside legal counsel and financial advisors, that such Company Acquisition Proposal constitutes, or is reasonably likely to result in, a Superior Proposal, and (y) the Company Board ~~(or any committee thereof)~~ determines in good faith, after consultation with outside legal counsel, that failure to take such action would be inconsistent with the directors’ duties under applicable Law; provided, however, that in each of the foregoing clauses (i) and (ii), such Company Acquisition Proposal was not solicited in violation of Section 7.5. (d) In addition to the other obligations of the Company set forth in this Section ~~6.5~~7.5, after the No Shop Period Start Date, the Company shall notify Parent promptly (but in no event later than 24 hours) after (i) receipt ~~after the No Shop Period Start Date~~ of any Company Acquisition Proposal or any request for ~~access to the properties, offices, assets, books, records and personnel of the Company or any Company Subsidiary or any~~ nonpublic information relating to the Company or any Company Subsidiary by any Third ~~Party in connection with a Company Acquisition Proposal~~ Party, or any Inquiry from any Person seeking to have discussions or negotiations with the Company relating to a possible Company Acquisition Proposal (such notice shall indicate the identity of the Third Party making the Company Acquisition Proposal, request or Inquiry and the material terms and conditions of ~~such~~ any Company Acquisition ~~Proposal~~Proposals, ~~request~~ Inquiries, proposals or ~~Inquiry~~offers, including a copy thereof if in writing and any related ~~material~~ documentation or ~~material~~ correspondence), and (ii) it enters into any discussions or negotiations concerning any Company Acquisition ~~Proposal,~~ Proposal or provides ~~access to the properties, offices, assets, books, records and personnel of the Company or any Company Subsidiary or furnishes any~~ nonpublic information or data to any ~~Third Party pursuant to~~ Person in accordance with this Section ~~6.5(c~~7.5(d), and, in each case, the Company shall keep Parent ~~reasonably~~ informed of the status and ~~material~~ terms of any such Company Acquisition Proposals, Inquiries, ~~requests~~proposals, offers, discussions or negotiations on a ~~reasonably~~ current basis (including any change to the financial ~~terms~~ terms, conditions or other material terms ~~and conditions~~ thereof and the terms of any and all material agreements in connection therewith (including any financing arrangements)), including by providing a copy of all material documentation or material correspondence relating thereto. (e) Except as permitted by this Section ~~6.5(e~~7.5(e), neither the Company Board nor any committee thereof shall (i) withhold, withdraw, modify or qualify (or publicly propose to withhold, withdraw, modify or qualify), in a manner adverse to ~~any~~ Parent ~~Party~~or Merger Sub, the Company ~~Recommendation or the Company OP General Partner’s approval of the Partnership Merger~~Recommendation, (ii) approve, adopt, endorse or recommend (or publicly propose to approve, adopt, endorse or recommend) any Company Acquisition Proposal, (iii) fail to include the Company Recommendation or in the Schedule 14D-9 and, if Company ~~OP General Partner’s approval~~ Stockholder Approval is required under the MGCL in order to consummate the Merger other than pursuant to Section 3-106 of the ~~Partnership Merger~~ MGCL, in the Proxy ~~Statement or any Schedule 14D-9, as applicable~~Statement, (iv) fail to publicly recommend against any Company Acquisition Proposal ~~that is publicly announced or disclosed~~ within ten (10) Business Days of the request of Parent and/or reaffirm the Company Recommendation within ten (10) Business Days of the request of Parent (any of the actions described in clauses (i), (ii), (iii) and (iv) of this Section ~~6.5(e~~7.5(e), an “Adverse Recommendation Change”), or (v) approve, adopt, declare advisable or recommend (or agree to, resolve or propose to approve, adopt, declare advisable or recommend), or cause or permit the Company to enter into, any Alternative Acquisition Agreement (other than an Acceptable Confidentiality Agreement entered into in accordance with this Section ~~6.5~~7.5). Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to ~~obtaining~~ the ~~Company Stockholder Approval~~Offer Closing, the Company Board ~~(or any committee thereof)~~ shall be permitted to effect an Adverse Recommendation Change ~~and cause the Company to terminate this Agreement pursuant to Section 8.1(c)(ii)~~ if the Company Board ~~(or any committee thereof)~~ (x) has received a bona fide Company Acquisition Proposal (~~whether or~~ that did not ~~a Qualified Go Shop Proposal or~~ result from a ~~Go Shop Bidder~~breach of this Section 7.5) that, in the good faith determination of the Company ~~Board (or any committee thereof)~~Board, after consultation with outside legal counsel and financial advisors, constitutes a Superior Proposal, after having complied with, and giving effect to all of the adjustments which may be offered by Parent and Merger Sub pursuant to Section 7.5(f), and such Company Acquisition Proposal is not withdrawn, and (y) determines in good faith, after consultation with outside legal counsel, that failure to take such action would be inconsistent with the directors’ duties under applicable Law; , and in such case the Company may (i) terminate this Agreement pursuant to Section 9.1(c)(ii), (ii) make an Adverse Recommendation Change and/or (iii) approve or recommend such Superior Proposal to the Company’s stockholders and, in the case of a termination, the Company may immediately prior to or concurrently with such termination of this Agreement, enter into an Alternative Acquisition Agreement with respect to such Superior Proposal (provided, ~~however~~that in the event of any such termination, ~~that neither~~ the Company complies with its obligation to pay the Termination Payment pursuant to Section 9.3(a)(iii)). (f) The Company Board ~~nor any committee thereof~~ shall not be entitled to effect an Adverse Recommendation Change ~~or cause the Company to terminate this Agreement~~ pursuant to ~~this~~ Section ~~6.5(e~~7.5(e) ~~unless:~~ unless (i) the Company has provided a written notice (a “Notice of Superior Proposal”) to Parent and Merger Sub that the Company intends to take such action, specifying in reasonable detail the reasons therefor and describing the material terms and conditions of, and attaching a complete copy of, the Superior Proposal and the terms of any and all agreements in connection therewith, including any financing arrangements, that is the basis of such action (it being understood that such material terms shall include the identity of the Third Party); , (ii) during the ~~four~~ five (45) Business Day period following Parent’s and Merger Sub’s receipt of the Notice of Superior Proposal, the Company shall, and shall cause its Representatives to, negotiate with Parent and Merger Sub in good faith (to the extent Parent and Merger Sub desire to negotiate) to make such adjustments in the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute a Superior Proposal; , and (iii) following the ~~close of business on the last day~~ end of the ~~four~~ five (45) Business Day period, the Company Board ~~(or any committee thereof)~~ shall have determined in good ~~faith (x)~~ faith, after consultation with outside legal counsel and financial advisors, taking into account any changes to this Agreement proposed in writing by Parent and Merger Sub in response to the Notice of Superior ~~Proposal~~Proposal or otherwise, that the Superior Proposal giving rise to the Notice of Superior Proposal continues to constitute a Superior Proposal ~~and (y)~~ and, after consultation with outside legal counsel, that failure to ~~effect an Adverse Recommendation Change~~ take such action would be inconsistent with the directors’ duties under applicable Law; and (iv) in connection with such Adverse Recommendation Change, the Company promptly thereafter terminates this Agreement pursuant to Section 8.1(c)(ii), concurrently pays the Termination Payment pursuant to Section 8.3(a)(ii) and then promptly enters into an Alternative Acquisition Agreement with respect to such Superior Proposal. If, following such four (4) Business Day period, the Company Board (or applicable committee) determines not to effect an Adverse Recommendation Change because the Company Acquisition Proposal ceased to constitute a Superior Proposal and thereafter any Any amendment to the financial terms or any other material amendment of such ~~Company Acquisition Proposal that previously constituted a~~ Superior Proposal ~~occurs, such amendment~~ shall require a new Notice of Superior Proposal, and the Company shall be required to comply again with the requirements of this Section ~~6.5(e~~7.5(f); provided, ~~provided~~ however, that references to the ~~four~~ five (45) Business Day period above shall then be deemed to be references to a ~~two~~ three (23) Business Day period. Notwithstanding the foregoing, the Company shall be obligated to negotiate with Parent and Merger Sub for such two (2) Business Day period pursuant to the foregoing sentence on only one occasion if, but only if, the Company Acquisition Proposal relates to a Qualified Go Shop Proposal before (y) the Company Board (or any committee thereof) can effect an Adverse Recommendation Change or (z) the Company can terminate this Agreement pursuant to Section 8.1(c)(ii), in each case, with respect to such Company Acquisition Proposal. (fg) Nothing contained in this Section ~~6.5~~ 7.5 or elsewhere in this Agreement shall prohibit the Company or the Company ~~Board (or any committee thereof)~~Board, directly or indirectly through its Representatives, from disclosing to the Company’s stockholders a position contemplated by Rule 14e-2(a) or Rule 14d-9 promulgated under the Exchange Act or making any disclosure to its stockholders if the Company Board ~~(or any committee thereof)~~ has determined, after consultation with outside legal counsel, that the failure to do so would be inconsistent with applicable Law; provided, however, that any disclosure ~~of a position contemplated by Rule 14e-2(a) under the Exchange Act~~ other than a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) promulgated under the Exchange Act, an express rejection of any applicable Company Acquisition Proposal or an express reaffirmation of the Company Recommendation to the Company’s stockholders in favor of the Offer and the Merger shall be deemed to be an Adverse Recommendation Change; and provided further that the taking of any such position or making of any such disclosure ~~con~~contemplated by this Section 7.5(g) shall not affect the Company’s and the Company Board’s duties under this Section 7.5. (h) At the No Shop Period Start Date, the Company and the Company Subsidiaries and their respective officers, directors and employees shall, and the Company shall instruct and cause its and the Company Subsidiaries’ Representatives to, immediately cease and cause to be terminated any existing discussions, negotiations or communications with any Person conducted prior to the No Shop Period Start Date with respect to any Company Acquisition Proposal and shall request the prompt return or destruction of all confidential information previously furnished in connection therewith. From and after the No Shop Period Start Date, the Company and the Company Subsidiaries and their respective officers, directors and employees shall, and the Company shall instruct and cause its and the Company Subsidiaries’ Representatives to, take such action as is necessary to enforce any confidentiality provisions or provisions of similar effect to which the Company or any of the Company Subsidiaries is a party or of which the Company or any of the Company Subsidiaries is a beneficiary. (i) Except as expressly set forth in Section 7.5(e), nothing in this Section 7.5 shall (i) permit the Company to terminate this Agreement or (ii) affect any other obligation of the Company under this Agreement. The Company shall not submit to the vote of its stockholders any Company Acquisition Proposal other than the Merger prior to the termination of this Agreement. (j) For purposes of this Agreement:

Appears in 2 contracts

Sources: Merger Agreement (American Realty Capital Properties, Inc.), Merger Agreement (Cole Credit Property Trust Inc)

Company Acquisition Proposals. (a) ~~Notwithstanding anything to the contrary contained in~~ Except as permitted by, and subject to, this ~~Agreement but subject to~~ Section ~~6.5(e~~5.3(a), ~~during the period (the “Go Shop Period”~~Section 5.3(c), Section 5.3(e) ~~beginning on~~ and Section 5.3(g), and except as provided below in respect of any Window Period Bidder, from the date of this Agreement and continuing until 11:59 p.m. (New York City time) on July 7, 2013 (the “No Shop Period Start Date”), the Company and its Representatives shall have the right to, directly or indirectly: (i) initiate, solicit, induce, cause, encourage and facilitate any Company Acquisition Proposals, including by way of providing access to the properties, offices, assets, books, records and personnel of the Company and the Company Subsidiaries and furnishing non-public information pursuant to (but only pursuant to) one or more Acceptable Confidentiality Agreements; provided, however, that any non-public information concerning the Company or the Company Subsidiaries that is provided to any Third Party (or such Third Party’s Representatives) in connection with a Company Acquisition Proposal shall, to the extent not previously provided to Parent or Merger Sub, be provided to Parent prior to or substantially concurrently with providing it to such Third Party; and (ii) engage in and maintain discussions or negotiations with respect to any Company Acquisition Proposal or inquiry, proposal or offer that constitutes or may reasonably be expected to lead to a Company Acquisition Proposal or otherwise cooperate with or assist or participate in, or facilitate any such inquiries, proposals, offers, discussions or negotiations or the making of any Company Acquisition Proposal. No later than one (1) Business Day after the No Shop Period Start Date, the Company shall notify Parent in writing of the identity of each Person that submitted a Company Acquisition Proposal prior to the No Shop Period Start Date (each, a “Go Shop Bidder”) and provide to Parent (x) a copy of any Company Acquisition Proposal made in writing and any other written material terms or proposals provided (including, to the extent not included therein, a copy of the acquisition agreement and any related transaction documents and financing commitments, if any) to the Company or any Company Subsidiary and (y) a written summary of the material terms of any Company Acquisition Proposal not made in writing (including any material terms proposed orally or supplementally). (b) Except as expressly permitted by this Section 6.5, from and after the No Shop Period Start Date hereof until the earlier of the Merger Effective Time and the ~~date~~ date, if any, on which this Agreement is terminated pursuant to Section 8.1, ~~neither~~ the Company ~~nor~~ and the Company Operating Partnership shall not, and shall cause the other Company Subsidiaries not to, and shall not authorize or permit any directors, officers, or employees or Representatives of the Company, the Company Operating Partnership or any of the other Company Subsidiaries ~~nor any of their respective officers, directors or employees shall, and the Company shall instruct its and the Company Subsidiaries’ Representatives not~~ to, directly or ~~indirectly through another Person~~indirectly, (i) ~~whether publicly or otherwise,~~ solicit, ~~initiate, induce, cause,~~ initiate or knowingly encourage or facilitate any inquiry, ~~discussion,~~ proposal or offer ~~or request that constitutes~~with respect to, or ~~could~~ the announcement, making or completion of, any Company Acquisition Proposal, or any inquiry, proposal or offer that would reasonably be expected to lead ~~to, a~~ to any Company Acquisition Proposal~~, including from any Go Shop Bidder (an “Inquiry”)~~, (ii) enter into, ~~continue, conduct, engage, maintain~~ continue or otherwise participate or engage in any ~~discussions or~~ negotiations regarding, or furnish to any ~~Third Party (including any Go Shop Bidder)~~ Person other than Parent or its Representatives, any non-public information ~~in connection with~~or data with respect to, ~~or otherwise cooperate in any way with, or facilitate in any way any effort by, any Third Party (including any Go Shop Bidder) in connection with~~ any Company Acquisition ~~Proposal or Inquiry~~Proposal, (iii) approve, ~~endorse or recommend a Company Acquisition Proposal (including any Company Acquisition Proposal submitted by a Go Shop Bidder prior to the No Shop Period Start Date)~~recommend, publicly declare advisable or enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, share ~~purchase agreement, asset purchase agreement, share~~ exchange agreement, consolidation agreement, option ~~agreement or other similar definitive agreement~~ agreement, joint venture agreement, partnership agreement, in each case, related to a Company Acquisition Proposal (other than an Acceptable Confidentiality ~~Agreement entered into in accordance with this Section 6.5~~Agreement) ~~providing for~~ or ~~relating~~ other agreement requiring or having the effect of requiring the Company to abandon, terminate or breach its obligations hereunder or fail to consummate the Merger (each, a “Company ~~Acquisition Proposal with any Third Party (including any Go Shop Bidder) (an “~~Alternative Acquisition Agreement”), or (iv) ~~take any action~~ agree to ~~make the provisions of any Takeover Statute~~ or any restrictive provision of any applicable anti-takeover provision in the Company Charter or Company Bylaws inapplicable to any transactions contemplated by a Company Acquisition Proposal or (v) resolve, agree, approve, recommend or propose publicly ~~propose or agree~~ to do any of the foregoing. Notwithstanding the foregoing, in the event that, during the period beginning on the date of this Agreement and continuing until 11:59 p.m. (New York City time) on the date that is thirty (30) days following the date of this Agreement (the “Window Period End Time”), any of the Company, the Company Operating Partnership, the other Company Subsidiaries or their respective Representatives receives any written, unsolicited and bona fide inquiry, proposal or, offer or other contact from a third party (including any Affiliates of such Person and joint venture partners of such Person in connection with any Company Acquisition Proposal, each a “Window Period Bidder”) that the Company Board determines, after consultation with outside legal counsel and its financial advisors, constitutes, or could reasonably be expected to lead to, any Company Acquisition Superior Proposal, then, subject to Section 5.3(a), at any time prior to the Window Period End Time, the Company, the Company Operating Partnership, the other Company Subsidiaries or their respective Representatives (on their behalf) may, and shall have the right to, directly or indirectly: (i) furnish non-public information or data pursuant to (but only pursuant to) one or more Acceptable Confidentiality Agreements (provided, however, that to the extent Company, the Company Operating Partnership, the other Company Subsidiaries or their respective Representatives furnishes, makes available or provided access to a Window Period Bidder of any non-public information not previously provided to Parent, the Company shall provide (to the extent permitted by applicable Law) such non-public information to Parent concurrently with the time it is provided to any such other Window Period Bidder) provided that a copy of such Acceptable Confidentiality Agreement(s) shall be promptly (in all events within 24 hours) provided for informational purposes to Parent); and (ii) enter into or otherwise participate in any discussions or negotiations with any such Window Period Bidder relating to, or in furtherance of such inquiries, proposal or offer in a manner that the Company Board deems appropriate in its sole and absolute discretion. (b) Except as permitted by, and subject to, Section 5.3(a), Section 5.3(c), Section 5.3(e) and Section 5.3(g), following the Window Period End Time, each of the Company and the Company Operating Partnership shall, and shall cause each of the other Company Subsidiaries and their respective Representatives to, immediately cease any discussions, negotiations or communications with any Window Period Bidder with respect to any Company Superior Proposal and immediately terminate all physical and electronic data room access previously granted to any such Person. Notwithstanding the foregoing, nothing in this ~~Agreement~~ Section 5.3(b) shall ~~prohibit~~ preclude the Company, the Company Operating Partnership, the other Company Subsidiaries or ~~any of its~~ their respective Representatives from ~~(A) (1) informing~~ contacting any ~~Third Party of the provisions set forth in this Section 6.5 or (2) contacting the~~ such Person ~~(or the Representatives of such Person) that made any Company Acquisition Proposals~~ solely for the purpose of ~~seeking clarification of solely those terms~~ complying with the immediately preceding sentence. (c) Notwithstanding the foregoing or ~~conditions of~~ anything to the contrary in this Section 5.3, if, prior to obtaining the Company Stockholder Approval, (i) the Company or the Company Operating Partnership receives a written Company Acquisition Proposal (including any Company Acquisition Proposal previously received from any Window Period Bidder) that the Company Board believes in good faith to be bona fide, (ii) such Company Acquisition Proposal was not the result of a violation of Section 5.3(a) (provided, that ~~require~~ the Parties agree that the Company and the Company Board may correspond with a third party making any such Company Acquisition Proposal to request clarification of the terms and conditions thereof so as to determine whether such Company Acquisition Proposal isconstitutes, or is could reasonably ~~likely~~ be expected to ~~result in~~lead to, a Company Superior Proposal; ), and (Biii) to the ~~extent the Relevant Period extends beyond the No Shop Period Start Date~~ Company Board determines (or, with respect to any Qualified Go Shop Proposal, continuing to engage during such portion of the Relevant Period in the activities described in Section 6.5(a) with respect to the Go Shop Bidder that submitted such Qualified Go Shop Proposal (and the restrictions set forth in this Section 6.5(b) and Sections 6.5(d) and 6.5(g) will not apply until the earlier of the expiration of the Relevant Period and the withdrawal of such Qualified Go Shop Proposal). (c) Notwithstanding anything to the contrary in this Section 6.5, at any time following the No Shop Period Start Date and prior to obtaining the Company Stockholder Approval, the Company may, directly or indirectly through any Representative, in response to an unsolicited bona fide written Company Acquisition Proposal ~~by a Third Party (whether or~~ from any Window Period Bidder, has previously determined and not ~~a Go Shop Bidder~~rescinded such determination) made after the date of this Agreement (that did not result from a breach of this Section 6.5) (i) provide access to the properties, offices, assets, books, records and personnel of the Company and the Company Subsidiaries and furnish non-public information to such Third Party (and such Third Party’s Representatives) making the Company Acquisition Proposal (provided, however, that (A) prior to so furnishing such non-public information, the Company receives from the Third Party an executed Acceptable Confidentiality Agreement and (B) any non-public information concerning the Company or the Company Subsidiaries that is provided to such Third Party shall, to the extent not previously provided to Parent or Merger Sub, be provided to Parent prior to or substantially concurrently with providing it to such Third Party), and (ii) engage in discussions or negotiations with such Third Party (and such Third Party’s Representatives) with respect to the Company Acquisition Proposal if, in the case of each of clauses (i) and (ii): (x) the Company Board (or any committee thereof) determines in good ~~faith,~~ faith (after consultation with outside ~~legal~~ counsel and its financial ~~advisors,~~ advisor) that such Company Acquisition Proposal constitutes, or is would reasonably ~~likely~~ be expected to ~~result in~~lead to, a Company Superior Proposal, then the Company and the Company Operating Partnership may (and may authorize the other Company Subsidiaries and their Representatives to) (x) furnish non-public information with respect to the Company, the Company Operating Partnership and the other Company Subsidiaries to the Person making such Company Acquisition Proposal (and its Representatives) pursuant to an Acceptable Confidentiality Agreement; provided, that any non-public information provided to any Person shall have previously been provided to Parent or shall be provided (to the extent permitted by applicable Law) to Parent prior to or concurrently with the time it is provided to such Person, and (y) ~~the Company Board (or any committee thereof) determines~~ engage in ~~good faith, after consultation with outside legal counsel, that failure to take such action would be inconsistent~~ discussions and participate in negotiations with the ~~directors’ duties under applicable Law~~Person making such Company Acquisition Proposal (and such Person’s Representatives) regarding such Company Acquisition Proposal. (d) ~~In addition~~ Except as expressly provided in Section 5.3(e), the Company Board (i) (A) shall not fail to make and shall not withdraw (or modify or qualify in any manner adverse to Parent or publicly propose to withdraw, modify or qualify in any manner adverse to Parent) the approval, recommendation or declaration of advisability by the Company Board of this Agreement, the Merger or any of the other ~~obligations~~ Transactions, and (B) shall not adopt, approve, or publicly recommend, endorse or otherwise declare advisable the adoption of ~~the~~ any Company Acquisition Proposal (each such action set forth in this Section ~~6.5, after the No Shop Period Start Date, the~~ 5.3(d)(i) being referred to herein as a “Company shall notify Parent promptly (but in no event later than 24 hours) after (i) receipt after the No Shop Period Start Date of any Company Acquisition Proposal or any request for access to the properties, offices, assets, books, records and personnel of the Company or any Company Subsidiary or any nonpublic information relating to the Company or any Company Subsidiary by any Third Party in connection with a Company Acquisition Proposal or any Inquiry from any Person seeking to have discussions or negotiations with the Company relating to a possible Company Acquisition Proposal (such notice shall indicate the identity of the Third Party making the Company Acquisition Proposal, request or Inquiry and the material terms and conditions of such Company Acquisition Proposal, request or Inquiry, including a copy thereof if in writing and any related material documentation or material correspondenceAdverse Recommendation Change”), and (ii) ~~it enters into any discussions~~ shall not cause or ~~negotiations concerning any Company Acquisition Proposal, provides access to~~ permit the properties, offices, assets, books, records and personnel of the Company or any Company Subsidiary or furnishes any nonpublic information to any Third Party pursuant to Section 6.5(c), and, in each caseCompany, the Company ~~shall keep Parent reasonably informed~~ Operating Partnership or any of the ~~status and material terms of any such~~ other Company ~~Acquisition Proposals, Inquiries, requests, discussions or negotiations on a reasonably current basis (including any change~~ Subsidiaries to the financial terms or other material terms and conditions thereof and the terms of any and all material agreements in connection therewith (including any financing arrangements)), including by providing a copy of all material documentation or material correspondence relating thereto. (e) Except as permitted by this Section 6.5(e), neither the Company Board nor any committee thereof shall (i) withhold, withdraw, modify or qualify (or publicly propose to withhold, withdraw, modify or qualify), in a manner adverse to any Parent Party, the Company Recommendation or the Company OP General Partner’s approval of the Partnership Merger, (ii) approve, adopt, endorse or recommend (or publicly propose to approve, adopt, endorse or recommend) enter into any Company Alternative Acquisition ~~Proposal, (iii) fail~~ Agreement relating to include the Company Recommendation or the Company OP General Partner’s approval of the Partnership Merger in the Proxy Statement or any Schedule 14D-9, as applicable, (iv) fail to publicly recommend against any Company Acquisition Proposal that is publicly announced or disclosed within ten (10) Business Days of the request of Parent and/or reaffirm the Company Recommendation within ten (10) Business Days of the request of Parent (any of the actions described in clauses (i), (ii), (iii) and (iv) of this Section 6.5(e), an “Adverse Recommendation Change”), or (v) approve, adopt, declare advisable or recommend (or agree to, resolve or propose to approve, adopt, declare advisable or recommend), or cause the Company to enter into, any Alternative Acquisition Agreement (other than an Acceptable Confidentiality Agreement ~~entered into in accordance with this~~ pursuant to Section ~~6.5~~5.3(a) or Section 5.3(c). ). (e) Notwithstanding anything in this Agreement to the ~~contrary set forth in this Agreement~~contrary, at any time prior to obtaining the Company Stockholder Approval, the Company Board may (~~or any committee thereof~~i) ~~shall be permitted to effect an~~ make a Company Adverse Recommendation Change (and ~~cause~~ may thereafter and following the ~~Company to terminate~~ termination of this Agreement pursuant to Section ~~8.1(c)(ii~~8.1 cause or permit the Company, the Company Operating Partnership or any of the other Company Subsidiaries to enter into any Company Alternative Acquisition Agreement relating to a Company Acquisition Proposal), if (A) if the Company Parties have not violated Section 5.3(a), Section 5.3(b) or Section 5.3(c) and (B) the Company Board has determined in good faith (~~or any committee thereof~~after consultation with outside counsel and its financial advisors) ~~(x) has received a bona fide~~ that the applicable Company Acquisition Proposal (whether or not ~~a Qualified Go Shop Proposal or~~ from a ~~Go Shop~~ Window Period Bidder) ~~that~~constitutes a Company Superior Proposal and that the failure to make a Company Adverse Recommendation Change would reasonably be expected to be inconsistent with its duties under applicable Law; and (ii) make a Company Adverse Recommendation Change if, in the ~~good faith determination~~ absence of a Company Acquisition Proposal, (A) a Company Intervening Event has occurred, and (B) the Company Board determines in good faith (~~or any committee thereof),~~ after consultation with outside ~~legal~~ counsel and its financial advisors) that the failure to make such Company Adverse Recommendation Change would reasonably be expected to be inconsistent with its duties under applicable Law; so long as, ~~constitutes~~ in each case ((i) and (ii)), (x) four business days prior to making any such Company Adverse Recommendation Change, the Company has notified Parent in writing that the Company Board intends to make a Company Adverse Recommendation Change in connection with a Company Superior Proposal or a Company Intervening Event (a “Company Change Notice”) and which Company Change Notice shall specify, in a case where such Company Change Notice relates to a Company Superior Proposal, ~~and~~ the identity of the party who made such Company Superior Proposal and all of the material terms and conditions of such Company Superior Proposal and attach a copy of the most current version of the related Company Alternative Acquisition ~~Proposal is not withdrawn~~Agreement, and, in a case where such Company Change Notice relates to a Company Intervening Event, a description of such Company Intervening Event, and (y) determines in good faith, after consultation with outside legal counsel, that failure to take such action would be inconsistent with the directors’ duties under applicable Law; provided, however, that neither the Company Board nor any committee thereof shall be entitled to effect an Adverse Recommendation Change or cause the Company to terminate this Agreement pursuant to this Section 6.5(e) unless: (i) the Company has provided a written notice (a “Notice of Superior Proposal”) to Parent and Merger Sub that the Company intends to take such action, specifying in reasonable detail the reasons therefor and describing the material terms and conditions of, and attaching a complete copy of, the Superior Proposal and the terms of any and all agreements in connection therewith, including any financing arrangements, that is the basis of such action (it being understood that such material terms shall include the identity of the Third Party); (ii) during the four ~~(4) Business Day~~ business day period ~~following Parent’s and Merger Sub’s receipt~~ beginning on the date of delivery of the applicable Company Change Notice ~~of Superior Proposal~~to Parent, the Company ~~shall, and~~ shall ~~cause its Representatives to,~~ have offered to negotiate with ~~Parent and Merger Sub~~ (and, if accepted, negotiated in good faith with) Parent (to the extent that Parent ~~and Merger Sub desire~~ desires to negotiate) in making adjustments to ~~make such adjustments in~~ the terms and conditions of this Agreement so such that ~~such~~ (1) in circumstances involving or relating to a Company Acquisition Proposal, the Company Superior Proposal ceases to ~~constitute~~ be a Company Superior ~~Proposal;~~ Proposal (~~iii) following the close of business on the last day of the four (4) Business Day period~~provided that any amendment, supplement or modification to any Company Acquisition Proposal shall be deemed a new Company Acquisition Proposal and the Company Board (or any committee thereof) shall have determined in good faith (x) after consultation with outside legal counsel and financial advisors, taking into account any changes to this Agreement proposed in writing by Parent and Merger Sub in response to the Notice of Superior Proposal, that the Superior Proposal giving rise to the Notice of Superior Proposal continues to constitute a Superior Proposal and (y) after consultation with outside legal counsel, that failure to effect an Adverse Recommendation Change would be inconsistent with the directors’ duties under applicable Law; and (iv) in connection with such Adverse Recommendation Change, the Company promptly thereafter terminates may not terminate this Agreement pursuant to Section 8.1(c)(ii), concurrently pays the Termination Payment pursuant to Section 8.3(a)(ii) and then promptly enters into an Alternative Acquisition Agreement with respect to such Superior Proposal. If, following such four (4) Business Day period, the 8.1 or make a Company ~~Board (or applicable committee) determines not to effect an~~ Adverse Recommendation Change ~~because~~ pursuant to clause (i) of this Section 5.3(e) unless the Company Acquisition Proposal ceased to constitute a Superior Proposal and thereafter any amendment to the financial terms or any other material amendment of such Company Acquisition Proposal that previously constituted a Superior Proposal occurs, such amendment shall require a new Notice of Superior Proposal, and the Company shall be required to comply has again complied with the requirements of this Section ~~6.5(e~~5.3(e) with respect to each such new Company Acquisition Proposal including sending a Company Change Notice with respect to each such new Company Acquisition Proposal (except that the new negotiation period under this Section 5.3(e)(y)(1) with respect to any revised Company Acquisition Proposal shall be two business days, instead of four business days)), ~~provided that references to the four (4) Business Day period above shall then be deemed to be references to a two~~ and (2) in circumstances not involving a Company Acquisition Proposal, as may be proposed by Parent. (f) The Company shall notify Parent promptly (but in no event later than one (1) Business ~~Day period. Notwithstanding~~ Day) after it obtains Knowledge of the ~~foregoing~~receipt by the Company, the Company ~~shall~~ Operating Partnership, any other Company Subsidiary or any of their respective Representatives of, the making of, or the intent to make, any Company Acquisition Proposal, any inquiry that could reasonably be ~~obligated~~ expected to ~~negotiate with Parent and Merger Sub~~ lead to a Company Acquisition Proposal, or any request for ~~such two (2) Business Day period pursuant~~ non-public information relating to the ~~foregoing sentence~~ Company or any Company Subsidiary or for access to the business, properties, assets, books, or records of the Company or any Company Subsidiary, by any Person or group of related Persons in connection with the making of, or intent to make, a Company Acquisition Proposal. Such notification shall include, to the extent then known and unless prohibited by the terms of any confidentiality agreement between the Company and such Person entered into prior to the date of this Agreement, the identity of the parties and a copy of such Company Acquisition Proposal, or, if not made in writing, a written description of the material terms thereof. The Company shall keep Parent reasonably apprised, on ~~only one occasion if~~a reasonably current basis, of the status and material terms, including any material or proposed developments with respect to discussions and negotiations concerning any such Company Acquisition Proposal. Notwithstanding anything to the contrary in this Agreement, but ~~only if~~subject to the preceding three sentences, nothing herein shall prohibit the Company, the Company Operating Partnership, the other Company Subsidiaries and their respective Representatives from contacting any Person submitting a Company Acquisition Proposal (that was not the result of a violation of this Section 5.3) solely to clarify the terms of the Company Acquisition Proposal ~~relates to a Qualified Go Shop Proposal before (y)~~ for the sole purpose of the Company Board ~~(or any committee thereof) can effect an Adverse Recommendation Change or (z) the Company can terminate this Agreement pursuant to Section 8.1(c)(ii), in each case, with respect to~~ informing itself about such Company Acquisition Proposal. (fg) Nothing contained in this Section ~~6.5 or elsewhere in this Agreement~~ 5.3 shall prohibit the Company or the Company Board ~~(or any committee thereof), directly or indirectly~~ through its Representatives, directly or indirectly, from ~~disclosing to the Company’s stockholders a position contemplated by Rule 14e-2(a~~(i) or Rule 14d-9 promulgated under the Exchange Act or making any disclosure to its stockholders if the Company Board (or any committee thereof) has determined, after consultation with outside legal counsel, that the failure to do so would be inconsistent with applicable Law; provided, however, that any disclosure of a position contemplated by Rule 14e-2(a) under the Exchange Act other than issuing a “stop, look and listen” communication pursuant to Rule 14d-9(f) under the Exchange Act pending disclosure of its position thereunder or taking and disclosing to its stockholders a position contemplated by Rule 14e-2(a), or making a statement contemplated by Rule 14d-9 under the Exchange Act or Item 1012(a) of Regulation M-A under the Exchange Act, or (ii) making any disclosure to the stockholders of the Company if, in the good faith judgment of the Company Board (after consultation with outside counsel), failure to so disclose would be inconsistent with its duties under applicable Law; provided that a “stop, look and listen” communication or similar communication of the type contemplated by Rule 14d-9(f) ~~promulgated~~ under the Exchange ~~Act, an express rejection of any applicable Company Acquisition Proposal or an express reaffirmation of the Company Recommendation to the Company’s stockholders in favor of the Merger~~ Act shall not be deemed to be an a Company Adverse Recommendation Change~~; and provided further that the taking~~ . (h) For purposes of ~~any such position or making of any such disclosure con~~this Agreement:

Appears in 2 contracts

Sources: Merger Agreement (OHI Healthcare Properties Limited Partnership), Merger Agreement (MedEquities Realty Trust, Inc.)

Company Acquisition Proposals. (a) Notwithstanding ~~anything~~ any other provision of this Agreement to the ~~contrary contained in this Agreement but subject to Section 6.5(e)~~contrary, during the period ~~(the “Go Shop Period”)~~ beginning on the date of this Agreement and continuing until 11:59 p.m. (~~New York City time~~EST) on ~~July 7, 2013~~ 30 days from the date of this Agreement (the “No Company No-Shop Period Start Date”), the Company and its Subsidiaries and their respective Representatives shall have the right to~~, directly or indirectly~~: (i) initiate, ~~solicit~~solicit and encourage, ~~induce~~whether publicly or otherwise, ~~cause, encourage and facilitate any~~ Company Acquisition ~~Proposals~~Proposals (as hereinafter defined), including by way of providing access to ~~the properties, offices, assets, books, records and personnel of the Company and the Company Subsidiaries and furnishing~~ non-public information pursuant to ~~(but only pursuant to) one or more Acceptable~~ confidentiality agreements with protections substantially similar to the Confidentiality ~~Agreements~~Agreement; ~~provided, however,~~ provided that the Company shall promptly provide to Acquiror and Merger Sub any material non-public information concerning the Company or ~~the Company~~ its Subsidiaries that is provided to any ~~Third Party (or~~ person given such ~~Third Party’s Representatives) in connection with a Company Acquisition Proposal shall, to the extent~~ access which was not previously provided to ~~Parent~~ Acquiror and Merger Sub (subject to the right of the Company to withhold such portions of documents or ~~Merger Sub~~information to the extent relating to pricing or other matters that are highly sensitive if the exchange of such information (or portions thereof), as determined by the Company’s counsel, would be ~~provided~~ reasonably likely to ~~Parent prior to~~ result in antitrust difficulties for the Company (or ~~substantially concurrently with providing it to such Third Party~~any of its affiliates)); and (ii) ~~engage in~~ enter into and maintain discussions or negotiations with respect to ~~any~~ Company Acquisition ~~Proposal or inquiry, proposal or offer that constitutes or may reasonably be expected to lead to a Company Acquisition Proposal~~ Proposals or otherwise cooperate with or assist or participate in, or facilitate any such inquiries, proposals, ~~offers,~~ discussions or negotiations or the making of any Company Acquisition Proposal. No later than one (1) Business Day after the No Shop Period Start Date, the Company shall notify Parent in writing of the identity of each Person that submitted a Company Acquisition Proposal prior to the No Shop Period Start Date (each, a “Go Shop Bidder”) and provide to Parent (x) a copy of any Company Acquisition Proposal made in writing and any other written material terms or proposals provided (including, to the extent not included therein, a copy of the acquisition agreement and any related transaction documents and financing commitments, if any) to the Company or any Company Subsidiary and (y) a written summary of the material terms of any Company Acquisition Proposal not made in writing (including any material terms proposed orally or supplementally). (b) ~~Except as expressly permitted by this~~ Subject to Section ~~6.5~~7.4(c), from ~~and after~~ the No Company No-Shop Period Start Date until the ~~earlier~~ Effective Time or, if earlier, the termination of this Agreement in accordance with Article IX, none of the ~~Effective Time and~~ Company, the ~~date on which this Agreement is terminated pursuant to Section 8.1, neither the Company nor any of the Company~~ Company’s Subsidiaries nor any of their respective ~~officers, directors or employees~~ Representatives shall~~, and the Company shall instruct its and the Company Subsidiaries’ Representatives not to~~, directly or ~~indirectly through another Person~~indirectly, (iA) ~~whether publicly or otherwise, solicit,~~ initiate, ~~induce~~solicit or encourage (including by way of providing information) the submission of any inquiries, ~~cause, encourage~~ proposals or ~~facilitate any inquiry, discussion, offer~~ offers that constitute or ~~request that constitutes, or could~~ may reasonably be expected to lead to, a any Company Acquisition ~~Proposal, including from any Go Shop Bidder (an “Inquiry”), (ii) enter into, continue, conduct, engage, maintain~~ Proposal or ~~otherwise participate~~ engage in any discussions or negotiations ~~regarding, or furnish to any Third Party (including any Go Shop Bidder) any non-public information in connection with,~~ with respect thereto or otherwise cooperate ~~in any way with~~with or assist or participate in, or facilitate in any ~~way any effort by~~such inquiries, ~~any Third Party~~ proposals, discussions or negotiations, or (~~including any Go Shop Bidder~~B) ~~in connection with any~~ approve or recommend, or propose to approve or recommend, a Company Acquisition Proposal or ~~Inquiry, (iii) approve, endorse or recommend a Company Acquisition Proposal (including any Company Acquisition Proposal submitted by a Go Shop Bidder prior to the No Shop Period Start Date), or~~ enter into any merger agreement, letter of intent, ~~memorandum of understanding,~~ agreement in principle~~, acquisition agreement, merger agreement~~, share purchase agreement, asset purchase ~~agreement,~~ agreement or share exchange agreement, option agreement or other similar ~~definitive~~ agreement ~~(other than an Acceptable Confidentiality Agreement entered into in accordance with this Section 6.5)~~ providing for or relating to a Company Acquisition Proposal ~~with~~ or enter into any ~~Third Party (including any Go Shop Bidder) (an “Alternative Acquisition Agreement”), (iv) take any action to make the provisions of any Takeover Statute~~ agreement or ~~any restrictive provision of any applicable anti-takeover provision~~ agreement in principle requiring the Company ~~Charter~~ to abandon, terminate or ~~Company Bylaws inapplicable~~ fail to ~~any~~ consummate the transactions contemplated ~~by a Company Acquisition Proposal~~ hereby or ~~(v) resolve, agree, approve, recommend~~ breach its obligations hereunder or ~~publicly~~ propose or agree to do any of the foregoing. ~~Notwithstanding the foregoing~~Subject to Section 7.4(c), ~~nothing in this Agreement shall prohibit~~ on the Company or any of its Representatives from (A) (1) informing any Third Party of the provisions set forth in this Section 6.5 or (2) contacting the Person (or the Representatives of such Person) that made any Company Acquisition Proposals solely for the purpose of seeking clarification of solely those terms or conditions of such Company Acquisition Proposal that require clarification so as to determine whether such Company Acquisition Proposal is, or is reasonably likely to result in, a Superior Proposal; and (B) to the extent the Relevant Period extends beyond the No No-Shop Period Start ~~Date~~ Date, the Company shall immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with any persons conducted theretofore by the Company, its Subsidiaries or any Representatives with respect to any Qualified Go Shop Proposal, continuing to engage during such portion of the Relevant Period in the activities described in Section 6.5(a) with respect to the Go Shop Bidder that submitted such Qualified Go Shop Company Acquisition Proposal and shall use its (and will cause its Representatives to use their) reasonable best efforts to require the ~~restrictions set forth~~ other parties thereto to promptly return or destroy in ~~this Section 6.5(b) and Sections 6.5(d) and 6.5(g) will not apply until~~ accordance with the ~~earlier of the expiration of the Relevant Period and the withdrawal~~ terms of such ~~Qualified Go Shop Proposal)~~agreement any confidential information previously furnished by the Company, the Company’s Subsidiaries or their respective Representatives thereunder. (c) Notwithstanding anything to the contrary contained in ~~this~~ Section ~~6.5~~7.4(b), if at any time following the No Company No-Shop Period Start Date and prior to obtaining the Required Company ~~Stockholder Approval~~Vote, (i) the Company ~~may, directly or indirectly through any Representative,~~ has otherwise complied in ~~response to an unsolicited bona fide~~ all material respects with its obligations under this Section 7.4 and the Company has received a written Company Acquisition Proposal ~~by a Third Party (whether or not a Go Shop Bidder) made after the date of this Agreement (that did not result~~ from a ~~breach of this Section 6.5~~third party that the Company Board believes in good faith to be bona fide and (ii) the Company Board determines in good faith, after consultation with its independent financial advisors and outside counsel, that such Company Acquisition Proposal constitutes or could reasonably be expected to result in a Superior Proposal, then the Company may (iA) ~~provide access~~ furnish information with respect to ~~the properties, offices, assets, books, records and personnel of~~ the Company and its Subsidiaries to the person making such Company Acquisition Proposal and (B) participate in discussions or negotiations with the person making such Company Acquisition Proposal regarding such Company Acquisition Proposal; provided, that the Company ~~Subsidiaries~~ (x) will not, and ~~furnish~~ will not allow Company Representatives to, disclose any non-public information to such ~~Third Party (and such Third Party’s Representatives) making the Company Acquisition Proposal (provided~~person without entering into a confidentiality agreement, ~~however, that (A) prior to so furnishing such non-public information, the Company receives from the Third Party an executed Acceptable Confidentiality Agreement~~ and (By) will promptly provide to Acquiror and Merger Sub any material non-public information concerning the Company or ~~the Company~~ its Subsidiaries ~~that is~~ provided to such ~~Third Party shall, to the extent~~ other person which was not previously provided to ~~Parent~~ Acquiror and Merger Sub (subject to the right of the Company to withhold such portions of documents or ~~Merger Sub, be provided~~ information to ~~Parent prior~~ the extent relating to pricing or ~~substantially concurrently with providing it to~~ other matters that are highly sensitive if the exchange of such ~~Third Party~~information (or portions thereof), ~~and (ii) engage in discussions or negotiations with such Third Party (and such Third Party~~as reasonably determined by the Company’s ~~Representatives) with respect to the Company Acquisition Proposal if~~counsel, in the case of each of clauses (i) and (ii): (x) the Company Board (or any committee thereof) determines in good faith, after consultation with outside legal counsel and financial advisors, that such Company Acquisition Proposal constitutes, or is would be reasonably likely to result ~~in, a Superior Proposal, and (y)~~ in antitrust difficulties for the Company ~~Board~~ (or any ~~committee thereof) determines in good faith,~~ of its affiliates)). From and after ~~consultation with outside legal counsel, that failure to take such action would be inconsistent with the directors’ duties under applicable Law. (d) In addition to the other obligations of~~ the Company ~~set forth in this Section 6.5, after the No~~ No-Shop Period Start Date, the Company shall ~~notify Parent~~ promptly (~~but~~ within two Business Days) notify Acquiror and Merger Sub in no the event later than 24 hours) after (i) receipt after the No Shop Period Start Date of any Company Acquisition Proposal or any request for access to the properties, offices, assets, books, records and personnel of the Company or any Company Subsidiary or any nonpublic information relating to the Company or any Company Subsidiary by any Third Party in connection with it receives a Company Acquisition Proposal from a person or ~~any Inquiry from any Person seeking to have discussions or negotiations with the Company relating to a possible Company Acquisition Proposal (such notice shall indicate the identity~~ group of ~~the Third Party making the Company Acquisition Proposal, request or Inquiry and the material terms and conditions of such Company Acquisition Proposal, request or Inquiry~~related persons, including a copy thereof if in writing and any related material documentation or material correspondence), and (ii) it enters into any discussions or negotiations concerning any Company Acquisition Proposal, provides access to the properties, offices, assets, books, records and personnel of the Company or any Company Subsidiary or furnishes any nonpublic information to any Third Party pursuant to Section 6.5(c), and, in each case, the Company shall keep Parent reasonably informed of the status and material terms of any such Company Acquisition Proposals, Inquiries, requests, discussions or negotiations on a reasonably current basis (including any change to the financial terms or other material terms and conditions thereof and the ~~terms~~ identity of the party making such proposal or inquiry, and shall keep Acquiror and Merger Sub reasonably apprised as to the status and any material developments, discussions and ~~all material agreements~~ negotiations concerning the same. Without limiting the foregoing, from and after the Company No-Shop Period Start Date, the Company shall promptly (within two Business Days) notify Acquiror and Merger Sub orally and in ~~connection therewith (including any financing arrangements)), including by~~ writing if it determines to begin providing information or to engage in negotiations concerning a ~~copy~~ Company Acquisition Proposal received on or after the Company No-Shop Period Start Date from a person or group of ~~all material documentation or material correspondence relating thereto~~related persons. (ed) ~~Except as permitted by this Section 6.5(e), neither~~ Neither the Company Board nor any committee thereof shall directly or indirectly (i) ~~withhold, withdraw,~~ withdraw or modify ~~or qualify (or publicly propose to withhold, withdraw, modify or qualify),~~ in a manner adverse to ~~any Parent Party~~Acquiror or Merger Sub, or publicly propose to withdraw or modify in a manner adverse to Acquiror or Merger Sub, the Company Recommendation or ~~the Company OP General Partner’s approval of the Partnership Merger,~~ (ii) ~~approve, adopt, endorse~~ take any other action or ~~recommend (or publicly propose to approve, adopt, endorse or recommend)~~ make any ~~Company Acquisition Proposal, (iii) fail to include~~ other public statement in connection with the Company ~~Recommendation or the~~ Stockholder Meeting inconsistent with such Company ~~OP General Partner’s approval of the Partnership Merger in the Proxy Statement or any Schedule 14D-9~~Recommendation; provided, ~~as applicable, (iv) fail to publicly recommend against any Company Acquisition Proposal~~ that is publicly announced or disclosed within ten (10) Business Days of the request of Parent and/or reaffirm the Company Recommendation within ten (10) Business Days of the request of Parent (any of the actions described in clauses (i), (ii), (iii) and (iv) of this Section 6.5(e), an “Adverse Recommendation Change”), or (v) approve, adopt, declare advisable or recommend (or agree to, resolve or propose to approve, adopt, declare advisable or recommend), or cause the Company to enter into, any Alternative Acquisition Agreement (other than an Acceptable Confidentiality Agreement entered into in accordance with this Section 6.5). Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Required Company ~~Stockholder Approval~~Vote, if the Company receives a Company Acquisition Proposal which the Company Board (or any committee thereof) shall be permitted to effect an Adverse Recommendation Change and cause the Company to terminate this Agreement pursuant to Section 8.1(c)(ii) if the Company Board (or any committee thereof) (x) has received a bona fide Company Acquisition Proposal (whether or not a Qualified Go Shop Proposal or from a Go Shop Bidder) that, concludes in ~~the~~ good faith ~~determination of the Company Board (or any committee thereof), after consultation with outside legal counsel and financial advisors,~~ constitutes a Superior Proposal, then the Company Board may withdraw or modify its Company Recommendation in a manner adverse to Acquiror and Merger Sub (“Company Recommendation Withdrawal”) if such Company ~~Acquisition Proposal is not withdrawn, and (y)~~ Board determines in good ~~faith,~~ faith (after consultation with outside ~~legal~~ counsel, ) that failure to take such action would ~~be inconsistent with the directors’~~ violate its fiduciary duties under applicable Law; provided, however, that neither the Company Board nor any committee thereof shall be entitled to effect an Adverse Recommendation Change or cause the Company to terminate this Agreement pursuant to this Section 6.5(e) unless: (i) the Company has provided a written notice (a “Notice of Superior Proposal”) to Parent and Merger Sub that the Company intends to take such action, specifying in reasonable detail the reasons therefor and describing the material terms and conditions of, and attaching a complete copy of, the Superior Proposal and the terms of any and all agreements in connection therewith, including any financing arrangements, that is the basis of such action (it being understood that such material terms shall include the identity of the Third Party); (ii) during the four (4) Business Day period following Parent’s and Merger Sub’s receipt of the Notice of Superior Proposal, the Company shall, and shall cause its Representatives to, negotiate with Parent and Merger Sub in good faith (to the extent Parent and Merger Sub desire to negotiate) to make such adjustments in the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute a Superior Proposal; (iii) following the close of business on the last day of the four (4) Business Day period, the Company Board (or any committee thereof) shall have determined in good faith (x) after consultation with outside legal counsel and financial advisors, taking into account any changes to this Agreement proposed in writing by Parent and Merger Sub in response to the Notice of Superior Proposal, that the Superior Proposal giving rise to the Notice of Superior Proposal continues to constitute a Superior Proposal and (y) after consultation with outside legal counsel, that failure to effect an Adverse Recommendation Change would be inconsistent with the directors’ duties under applicable Law; and (iv) in connection with such Adverse Recommendation Change, the Company promptly thereafter terminates this Agreement pursuant to Section 8.1(c)(ii), concurrently pays the Termination Payment pursuant to Section 8.3(a)(ii) and then promptly enters into an Alternative Acquisition Agreement with respect to such Superior Proposal. If, following such four (4) Business Day period, the Company Board (or applicable committee) determines not to effect an Adverse Recommendation Change because the Company Acquisition Proposal ceased to constitute a Superior Proposal and thereafter any amendment to the financial terms or any other material amendment of such Company Acquisition Proposal that previously constituted a Superior Proposal occurs, such amendment shall require a new Notice of Superior Proposal, and the Company shall be required to comply again with the requirements of this Section 6.5(e), provided that references to the four (4) Business Day period above shall then be deemed to be references to a two (2) Business Day period. Notwithstanding the foregoing, the Company shall be obligated to negotiate with Parent and Merger Sub for such two (2) Business Day period pursuant to the foregoing sentence on only one occasion if, but only if, the Company Acquisition Proposal relates to a Qualified Go Shop Proposal before (y) the Company Board (or any committee thereof) can effect an Adverse Recommendation Change or (z) the Company can terminate this Agreement pursuant to Section 8.1(c)(ii), in each case, with respect to such Company Acquisition Proposal. (fe) Nothing contained in this Section ~~6.5~~ 7.4 or elsewhere in this Agreement shall prohibit the Company ~~or the Company Board~~ from (~~or any committee thereof), directly or indirectly through its Representatives, from~~ i) taking and disclosing to ~~the Company’s~~ its stockholders a position contemplated by Rule 14d-9 and 14e-2(a) ~~or Rule 14d-9~~ promulgated under the Exchange Act or (ii) making any disclosure to ~~its~~ the Company’s stockholders if if, in the good faith judgment of the Company ~~Board (or any committee thereof) has determined~~Board, after ~~consultation with~~ receipt of advice from its outside legal counsel, ~~that the~~ failure so to ~~do so~~ disclose would be inconsistent with disclosure requirements under applicable Law; provided, ~~however, that~~ any such disclosure ~~of a position contemplated by Rule 14e-2(a~~made pursuant to clause (i) ~~under the Exchange Act~~ or (ii) (other than a “stop, look and listen” letter or similar communication of the type contemplated by Rule 14d-9(f) ~~promulgated~~ under the Exchange Act~~, an express rejection of any applicable Company Acquisition Proposal or an express reaffirmation of the Company Recommendation to the Company’s stockholders in favor of the Merger~~ ) shall be deemed to be ~~an Adverse~~ a Company Recommendation ~~Change; and provided further that~~ Withdrawal unless the ~~taking of any such position or making of any~~ Company Board expressly reaffirms in such disclosure ~~con~~its recommendation in favor of the approval of this Agreement. (f) The Company agrees that any violations of the restrictions set forth in this Section 7.4 by any Representative of the Company or any of its Subsidiaries, shall be deemed to be a breach of this Section 7.4 by the Company. (g) As used in this Agreement, the term:

Appears in 2 contracts

Sources: Merger Agreement (As Seen on TV, Inc.), Merger Agreement (Ediets Com Inc)

Company Acquisition Proposals. ~~(a) Notwithstanding anything to the contrary contained in this Agreement but subject to~~ Section ~~6.5(e)~~5.11.1 The Company agrees that neither it nor any Company Subsidiary shall, ~~during the period (the “Go Shop Period”) beginning on the date of this Agreement~~ and ~~continuing until 11:59 p.m. (New York City time) on July 7, 2013 (the “No Shop Period Start Date”), the~~ that it shall cause each Representative retained by it or any Company ~~and its Representatives shall have the right~~ Subsidiary not to, directly or indirectly: (ia) initiate, ~~solicit~~solicit or knowingly encourage any inquiries with respect to, ~~induce~~or the making of, ~~cause, encourage and facilitate any~~ a Company Acquisition ~~Proposals~~Proposal, ~~including by way of providing access to the properties~~(b) engage in any negotiations concerning, ~~offices, assets, books, records and personnel of the Company and the Company Subsidiaries and furnishing non-public information pursuant to (but only pursuant to) one~~ or ~~more Acceptable Confidentiality Agreements; provided, however, that~~ provide any non-public information ~~concerning the Company~~ or ~~the Company Subsidiaries that is provided~~ data to any ~~Third Party (or such Third Party’s Representatives) in connection with~~ person relating to a Company Acquisition Proposal ~~shall, to~~ or any inquiries or the extent not previously provided to Parent or Merger Sub, be provided to Parent prior to or substantially concurrently with providing it to such Third Party; and (ii) engage in and maintain discussions or negotiations with respect to making of any ~~Company Acquisition Proposal or inquiry,~~ proposal ~~or offer~~ that ~~constitutes or may~~ could reasonably be expected to lead to ~~a Company Acquisition Proposal or otherwise cooperate with or assist or participate in, or facilitate any such inquiries, proposals, offers, discussions or negotiations or the making of~~ any Company Acquisition Proposal. No later than one (1) Business Day after the No Shop Period Start Date, the Company shall notify Parent in writing of the identity of each Person that submitted a Company Acquisition Proposal prior to the No Shop Period Start Date (each, a “Go Shop Bidder”) and provide to Parent (x) a copy of any Company Acquisition Proposal made in writing and any other written material terms or proposals provided (including, to the extent not included therein, a copy of the acquisition agreement and any related transaction documents and financing commitments, if any) to the Company or any Company Subsidiary and (y) a written summary of the material terms of any Company Acquisition Proposal not made in writing (including any material terms proposed orally or supplementally). (b) Except as expressly permitted by this Section 6.5, from and after the No Shop Period Start Date until the earlier of the Effective Time and the date on which this Agreement is terminated pursuant to Section 8.1, neither the Company nor any of the Company Subsidiaries nor any of their respective officers, directors or employees shall, and the Company shall instruct its and the Company Subsidiaries’ Representatives not to, directly or indirectly through another Person, (ic) ~~whether~~ approve or recommend or propose publicly to approve or ~~otherwise~~recommend, ~~solicit, initiate, induce, cause, encourage or facilitate~~ any ~~inquiry, discussion, offer or request that constitutes, or could reasonably be expected to lead to, a~~ Company Acquisition Proposal, ~~including from any Go Shop Bidder~~ or (~~an “Inquiry”)~~d) approve or recommend, ~~(ii)~~ or propose to approve or recommend, or execute or enter into, continue, conduct, engage, maintain or otherwise participate in any discussions or negotiations regarding, or furnish to any Third Party (including any Go Shop Bidder) any non-public information in connection with, or otherwise cooperate in any way with, or facilitate in any way any effort by, any Third Party (including any Go Shop Bidder) in connection with any Company Acquisition Proposal or Inquiry, (iii) approve, endorse or recommend a Company Acquisition Proposal (including any Company Acquisition Proposal submitted by a Go Shop Bidder prior to the No Shop Period Start Date), or enter into any letter of intent, ~~memorandum of understanding,~~ agreement in principle, ~~acquisition agreement,~~ merger agreement, ~~share purchase agreement, asset purchase agreement, share exchange~~ acquisition agreement, option agreement or other similar ~~definitive~~ agreement ~~(other than an Acceptable Confidentiality Agreement entered into in accordance with this Section 6.5) providing for or~~ relating to ~~a Company Acquisition Proposal with~~ any Third Party (including any Go Shop Bidder) (an “Alternative Acquisition Agreement”), (iv) take any action to make the provisions of any Takeover Statute or any restrictive provision of any applicable anti-takeover provision in the Company Charter or Company Bylaws inapplicable to any transactions contemplated by a Company Acquisition Proposal or ~~(v) resolve, agree, approve, recommend or~~ propose publicly ~~propose~~ or agree to do any of the foregoing. Notwithstanding the foregoing, nothing in this Agreement shall prohibit the Company or any of its Representatives from (A) (1) informing any Third Party of the provisions set forth in this Section 6.5 or (2) contacting the Person (or the Representatives of such Person) that made foregoing relating to any Company Acquisition ~~Proposals solely for~~ Proposal. Section 5.11.2 The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any person (other than the purpose of seeking clarification of solely those terms or conditions of such Company Acquisition Proposal that require clarification so as to determine whether such Company Acquisition Proposal is, or is reasonably likely to result in, a Superior Proposal; and (Bparties hereto) ~~to the extent the Relevant Period extends beyond the No Shop Period Start Date~~ conducted heretofore with respect to any Qualified Go Shop Proposal, continuing to engage during such portion of the Relevant Period in the activities described in Section 6.5(a) with respect to the Go Shop Bidder that submitted such Qualified Go Shop Proposal (and the restrictions set forth in this Section 6.5(b) and Sections 6.5(d) and 6.5(g) will not apply until the earlier of the expiration of the Relevant Period and the withdrawal of such Qualified Go Shop Proposal). (c) Notwithstanding anything to the contrary in this Section 6.5, at any time following the No Shop Period Start Date and prior to obtaining the Company Stockholder Approval, the Company may, directly or indirectly through any Representative, in response to an unsolicited bona fide written Company Acquisition ~~Proposal by a Third Party (whether or not a Go Shop Bidder) made after~~ Proposal. The Company agrees that it will take the ~~date of this Agreement (that did not result from a breach of this Section 6.5) (i) provide access~~ necessary steps to promptly inform the ~~properties, offices, assets, books, records and personnel~~ Representatives of the Company and the Company Subsidiaries and furnish non-public information to such Third Party (and such Third Party’s Representatives) making the Company Acquisition Proposal (provided, however, that (A) prior to so furnishing such non-public information, the Company receives from the Third Party an executed Acceptable Confidentiality Agreement and (B) any non-public information concerning the Company or the Company Subsidiaries that is provided to such Third Party shall, to the extent not previously provided to Parent or Merger Sub, be provided to Parent prior to or substantially concurrently with providing it to such Third Party), and (ii) engage in discussions or negotiations with such Third Party (and such Third Party’s Representatives) with respect to the Company Acquisition Proposal if, in the case of each of clauses (i) and (ii): (x) the Company Board (or any committee thereof) determines in good faith, after consultation with outside legal counsel and financial advisors, that such Company Acquisition Proposal constitutes, or is reasonably likely to result in, a Superior Proposal, and (y) the Company Board (or any committee thereof) determines in good faith, after consultation with outside legal counsel, that failure to take such action would be inconsistent with the directors’ duties under applicable Law. (d) In addition to the other obligations its subsidiaries of the ~~Company set forth~~ obligations undertaken in this Section ~~6.5, after~~ 5.11.2. Between the ~~No Shop Period Start~~ date hereof and the Closing Date, the Company shall promptly notify Parent ~~promptly (but in no event later than 24 hours) after (i)~~ of receipt ~~after~~ by the ~~No Shop Period Start Date~~ Company or its majority stockholder of any contact with respect to a Company Acquisition ~~Proposal or~~ Proposal. Section 5.11.3 Any breach of this Section 5.11 by any ~~request for access to the properties, offices, assets, books, records and personnel~~ Representative of the Company or any Company Subsidiary or any nonpublic information relating to the Company or any Company Subsidiary by any Third Party in connection with a Company Acquisition Proposal or any Inquiry from any Person seeking to have discussions or negotiations with the Company relating to a possible Company Acquisition Proposal (such notice shall indicate the identity of the Third Party making the Company Acquisition Proposal, request or Inquiry and the material terms and conditions of such Company Acquisition Proposal, request or Inquiry, including a copy thereof if in writing and any related material documentation or material correspondence), and (ii) it enters into any discussions or negotiations concerning any Company Acquisition Proposal, provides access to the properties, offices, assets, books, records and personnel of the Company or any Company Subsidiary or furnishes any nonpublic information to any Third Party pursuant to Section 6.5(c), and, in each case, the Company shall keep Parent reasonably informed of the status and material terms of any such Company Acquisition Proposals, Inquiries, requests, discussions or negotiations on a reasonably current basis (including any change to the financial terms or other material terms and conditions thereof and the terms of any and all material agreements in connection therewith (including any financing arrangements)), including by providing a copy of all material documentation or material correspondence relating thereto. (e) Except as permitted by this Section 6.5(e), neither the Company Board nor any committee thereof shall (i) withhold, withdraw, modify or qualify (or publicly propose to withhold, withdraw, modify or qualify), in a manner adverse to any Parent Party, the Company Recommendation or the Company OP General Partner’s approval of the Partnership Merger, (ii) approve, adopt, endorse or recommend (or publicly propose to approve, adopt, endorse or recommend) any Company Acquisition Proposal, (iii) fail to include the Company Recommendation or the Company OP General Partner’s approval of the Partnership Merger in the Proxy Statement or any Schedule 14D-9, as applicable, (iv) fail to publicly recommend against any Company Acquisition Proposal that is publicly announced or disclosed within ten (10) Business Days of the request of Parent and/or reaffirm the Company Recommendation within ten (10) Business Days of the request of Parent (any of the actions described in clauses (i), (ii), (iii) and (iv) of this Section 6.5(e), an “Adverse Recommendation Change”), or (v) approve, adopt, declare advisable or recommend (or agree to, resolve or propose to approve, adopt, declare advisable or recommend), or cause the Company to enter into, any Alternative Acquisition Agreement (other than an Acceptable Confidentiality Agreement entered into in accordance with this Section 6.5). Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Company Stockholder Approval, the Company Board (or any committee thereof) shall be permitted to effect an Adverse Recommendation Change and cause the Company to terminate this Agreement pursuant to Section 8.1(c)(ii) if the Company Board (or any committee thereof) (x) has received a bona fide Company Acquisition Proposal (whether or not a Qualified Go Shop Proposal or from a Go Shop Bidder) that, in the good faith determination of the Company Board (or any committee thereof), after consultation with outside legal counsel and financial advisors, constitutes a Superior Proposal, and such Company Acquisition Proposal is not withdrawn, and (y) determines in good faith, after consultation with outside legal counsel, that failure to take such action would be inconsistent with the directors’ duties under applicable Law; provided, however, that neither the Company Board nor any committee thereof shall be entitled to effect an Adverse Recommendation Change or cause the Company to terminate this Agreement pursuant to this Section 6.5(e) unless: (i) the Company has provided a written notice (a “Notice of Superior Proposal”) to Parent and Merger Sub that the Company intends to take such action, specifying in reasonable detail the reasons therefor and describing the material terms and conditions of, and attaching a complete copy of, the Superior Proposal and the terms of any and all agreements in connection therewith, including any financing arrangements, that is the basis of such action (it being understood that such material terms shall include the identity of the Third Party); (ii) during the four (4) Business Day period following Parent’s and Merger Sub’s receipt of the Notice of Superior Proposal, the Company shall, and shall cause its Representatives to, negotiate with Parent and Merger Sub in good faith (to the extent Parent and Merger Sub desire to negotiate) to make such adjustments in the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute a Superior Proposal; (iii) following the close of business on the last day of the four (4) Business Day period, the Company Board (or any committee thereof) shall have determined in good faith (x) after consultation with outside legal counsel and financial advisors, taking into account any changes to this Agreement proposed in writing by Parent and Merger Sub in response to the Notice of Superior Proposal, that the Superior Proposal giving rise to the Notice of Superior Proposal continues to constitute a Superior Proposal and (y) after consultation with outside legal counsel, that failure to effect an Adverse Recommendation Change would be inconsistent with the directors’ duties under applicable Law; and (iv) in connection with such Adverse Recommendation Change, the Company promptly thereafter terminates this Agreement pursuant to Section 8.1(c)(ii), concurrently pays the Termination Payment pursuant to Section 8.3(a)(ii) and then promptly enters into an Alternative Acquisition Agreement with respect to such Superior Proposal. If, following such four (4) Business Day period, the Company Board (or applicable committee) determines not to effect an Adverse Recommendation Change because the Company Acquisition Proposal ceased to constitute a Superior Proposal and thereafter any amendment to the financial terms or any other material amendment of such Company Acquisition Proposal that previously constituted a Superior Proposal occurs, such amendment shall require a new Notice of Superior Proposal, and the Company shall be required to comply again with the requirements of this Section 6.5(e), provided that references to the four (4) Business Day period above shall then be deemed to be references to a two (2) Business Day period. Notwithstanding the foregoing, the Company shall be obligated to negotiate with Parent and Merger Sub for such two (2) Business Day period pursuant to the foregoing sentence on only one occasion if, but only if, the Company Acquisition Proposal relates to a Qualified Go Shop Proposal before (y) the Company Board (or any committee thereof) can effect an Adverse Recommendation Change or (z) the Company can terminate this Agreement pursuant to Section 8.1(c)(ii), in each case, with respect to such Company Acquisition Proposal. (f) Nothing contained in this Section 6.5 or elsewhere in this Agreement shall prohibit the Company or the Company Board (or any committee thereof), directly or indirectly through its Representatives, from disclosing to the Company’s stockholders a position contemplated by Rule 14e-2(a) or Rule 14d-9 promulgated under the Exchange Act or making any disclosure to its stockholders if the Company Board (or any committee thereof) has determined, after consultation with outside legal counsel, that the failure to do so would be inconsistent with applicable Law; provided, however, that any disclosure of a position contemplated by Rule 14e-2(a) under the Exchange Act other than a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) promulgated under the Exchange Act, an express rejection of any applicable Company Acquisition Proposal or an express reaffirmation of the Company Recommendation to the Company’s stockholders in favor of the Merger subsidiaries shall be deemed to be ~~an Adverse Recommendation Change; and provided further that~~ a breach of this Agreement by the ~~taking of any such position or making of any such disclosure con~~Company.

Appears in 1 contract

Sources: Merger Agreement (Willbros Group, Inc.\NEW\)

Company Acquisition Proposals. (a) Notwithstanding anything to the contrary contained in this Agreement but subject to Section 6.5(e) and Section 6.5(g), during the period ~~(the “Go Shop Period”)~~ beginning on the date of this Agreement and continuing until 11:59 p.m. (New York City time) on ~~July 7~~September 22, ~~2013~~ 2016 (the “No Go Shop Period ~~Start Date~~End Time”), the Company Parties and ~~its~~ their respective Representatives may and shall have the right to, directly or indirectly: (i) initiate, solicit, ~~induce, cause,~~ encourage ~~and~~ or facilitate any ~~Company~~ inquiries or the making of any proposal, offer or other action that constitutes, or may reasonably be expected to lead to, any Acquisition ~~Proposals~~Proposal, including by way of (A) contacting third parties, (B) broadly disseminating public disclosure or (C) providing access to the properties, offices, assets, books, records and personnel of the Company and the Company Subsidiaries and furnishing non-public information pursuant to (but only pursuant to) one or more Acceptable Confidentiality Agreements; provided, however, that ~~any~~ the Company has previously or concurrently furnished, made available or provided access to such non-public information ~~concerning the Company or the Company Subsidiaries that is provided to any Third Party (or such Third Party’s Representatives) in connection with a Company Acquisition Proposal shall,~~ to the ~~extent not previously provided to~~ Parent ~~or Merger Sub, be provided to Parent prior to or substantially concurrently with providing it to such Third Party~~Parties; ~~and~~ (ii) ~~engage~~ enter into, continue or otherwise participate in ~~and maintain~~ any discussions or negotiations with ~~respect to~~ any Company Acquisition Proposal or inquiry, proposal or offer that constitutes or may reasonably be expected to lead to a Company Acquisition Proposal or otherwise cooperate with or assist or participate inPerson relating to, or ~~facilitate any~~ in furtherance of such inquiries, proposals, ~~offers~~offers or other actions or to obtain, ~~discussions~~ an Acquisition Proposal; (iii) release any Person from, or ~~negotiations~~ refrain from enforcing, any standstill agreement or similar obligation to the ~~making~~ Company or any of the Company Subsidiaries; and (iv) disclose to the stockholders of the Company any information required to be disclosed under applicable Law; provided, however, that in the case of this clause (iv) such disclosure shall be deemed to be a Company Change in Recommendation if not accompanied by an express public re-affirmation of the Company Recommendation. For purposes of this Agreement, the term “Go Shop Bidder” shall mean any Person (including its controlled Affiliates and Representatives) that submits a proposal or offer regarding an Acquisition Proposal not later than the Go Shop Period End Time that has not been withdrawn and that the Company Special Committee determines prior to the Go Shop Period End Time (or in the case of any ~~Company~~ Acquisition Proposal received less than two Business Days before the date of the Go Shop Period End Time, not later than two Business Days after the Go Shop Period End Time), has resulted in, or would be reasonably expected to result in, a Superior Proposal. No later than ~~one (1)~~ two Business ~~Day~~ Days after the No Go Shop Period ~~Start Date~~End Time, the Company shall notify Parent in writing of the identity of each ~~Person that submitted a Company Acquisition Proposal prior to the No Shop Period Start Date (each, a “~~Go Shop ~~Bidder”)~~ Bidder and provide to Parent (x) a copy of any ~~Company~~ related Acquisition Proposal made in writing and any other written material terms or proposals provided (including, to the extent not included therein, a copy of the acquisition agreement and any related transaction documents and financing commitments, if any) to the Company or any Company Subsidiary and (y) a written summary of the material terms of any ~~Company~~ related Acquisition Proposal not made in writing (including any material terms proposed orally or supplementally). (b) Except as expressly permitted by this Section 6.5, from and after the No Shop Period Start Date until the earlier of the Effective Time and the date on which this Agreement is terminated pursuant to Section 8.1, neither the Company nor any of the Company Subsidiaries nor any of their respective officers, directors or employees shall, and the Company shall instruct its and the Company Subsidiaries’ Representatives not to, directly or indirectly through another Person, (i) whether publicly or otherwise, solicit, initiate, induce, cause, encourage or facilitate any inquiry, discussion, offer or request that constitutes, or could reasonably be expected to lead to, a Company Acquisition Proposal, including from any Go Shop Bidder (an “Inquiry”), (ii) enter into, continue, conduct, engage, maintain or otherwise participate in any discussions or negotiations regarding, or furnish to any Third Party (including any Go Shop Bidder) any non-public information in connection with, or otherwise cooperate in any way with, or facilitate in any way any effort by, any Third Party (including any Go Shop Bidder) in connection with any Company Acquisition Proposal or Inquiry, (iii) approve, endorse or recommend a Company Acquisition Proposal (including any Company Acquisition Proposal submitted by a Go Shop Bidder prior to the No Shop Period Start Date), or enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, share purchase agreement, asset purchase agreement, share exchange agreement, option agreement or other similar definitive agreement (other than an Acceptable Confidentiality Agreement entered into in accordance with this Section 6.5) providing for or relating to a Company Acquisition Proposal with any Third Party (including any Go Shop Bidder) (an “Alternative Acquisition Agreement”), (iv) take any action to make the provisions of any Takeover Statute or any restrictive provision of any applicable anti-takeover provision in the Company Charter or Company Bylaws inapplicable to any transactions contemplated by a Company Acquisition Proposal or (v) resolve, agree, approve, recommend or publicly propose or agree to do any of the foregoing. Notwithstanding the foregoing, nothing in this Agreement shall prohibit the Company or any of its Representatives from (A) (1) informing any Third Party of the provisions set forth in this Section 6.5 or (2) contacting the Person (or the Representatives of such Person) that made any Company Acquisition Proposals solely for the purpose of seeking clarification of solely those terms or conditions of such Company Acquisition Proposal that require clarification so as to determine whether such Company Acquisition Proposal is, or is reasonably likely to result in, a Superior Proposal; and (B) to the extent the Relevant Period extends beyond the No Shop Period Start Date with respect to any Qualified Go Shop Proposal, continuing to engage during such portion of the Relevant Period in the activities described in Section 6.5(a) with respect to the Go Shop Bidder that submitted such Qualified Go Shop Proposal (and the restrictions set forth in this Section 6.5(b) and Sections 6.5(d) and 6.5(g) will not apply until the earlier of the expiration of the Relevant Period and the withdrawal of such Qualified Go Shop Proposal). (c) Notwithstanding anything to the contrary in this Section 6.5, at any time following the No Shop Period Start Date and prior to obtaining the Company Stockholder Approval, the Company may, directly or indirectly through any Representative, in response to an unsolicited bona fide written Company Acquisition Proposal by a Third Party (whether or not a Go Shop Bidder) made after the date of this Agreement (that did not result from a breach of this Section 6.5) (i) provide access to the properties, offices, assets, books, records and personnel of the Company and the Company Subsidiaries and furnish non-public information to such Third Party (and such Third Party’s Representatives) making the Company Acquisition Proposal (provided, however, that (A) prior to so furnishing such non-public information, the Company receives from the Third Party an executed Acceptable Confidentiality Agreement and (B) any non-public information concerning the Company or the Company Subsidiaries that is provided to such Third Party shall, to the extent not previously provided to Parent or Merger Sub, be provided to Parent prior to or substantially concurrently with providing it to such Third Party), and (ii) engage in discussions or negotiations with such Third Party (and such Third Party’s Representatives) with respect to the Company Acquisition Proposal if, in the case of each of clauses (i) and (ii): (x) the Company Board (or any committee thereof) determines in good faith, after consultation with outside legal counsel and financial advisors, that such Company Acquisition Proposal constitutes, or is reasonably likely to result in, a Superior Proposal, and (y) the Company Board (or any committee thereof) determines in good faith, after consultation with outside legal counsel, that failure to take such action would be inconsistent with the directors’ duties under applicable Law. (d) In addition to the other obligations of the Company set forth in this Section 6.5, after the No Shop Period Start Date, the Company shall notify Parent promptly (but in no event later than 24 hours) after (i) receipt after the No Shop Period Start Date of any Company Acquisition Proposal or any request for access to the properties, offices, assets, books, records and personnel of the Company or any Company Subsidiary or any nonpublic information relating to the Company or any Company Subsidiary by any Third Party in connection with a Company Acquisition Proposal or any Inquiry from any Person seeking to have discussions or negotiations with the Company relating to a possible Company Acquisition Proposal (such notice shall indicate the identity of the Third Party making the Company Acquisition Proposal, request or Inquiry and the material terms and conditions of such Company Acquisition Proposal, request or Inquiry, including a copy thereof if in writing and any related material documentation or material correspondence), and (ii) it enters into any discussions or negotiations concerning any Company Acquisition Proposal, provides access to the properties, offices, assets, books, records and personnel of the Company or any Company Subsidiary or furnishes any nonpublic information to any Third Party pursuant to Section 6.5(c), and, in each case, the Company shall keep Parent reasonably informed of the status and material terms of any such Company Acquisition Proposals, Inquiries, requests, discussions or negotiations on a reasonably current basis (including any change to the financial terms or other material terms and conditions thereof and the terms of any and all material agreements in connection therewith (including any financing arrangements)), including by providing a copy of all material documentation or material correspondence relating thereto. (e) Except as permitted by this Section 6.5(e), neither the Company Board nor any committee thereof shall (i) withhold, withdraw, modify or qualify (or publicly propose to withhold, withdraw, modify or qualify), in a manner adverse to any Parent Party, the Company Recommendation or the Company OP General Partner’s approval of the Partnership Merger, (ii) approve, adopt, endorse or recommend (or publicly propose to approve, adopt, endorse or recommend) any Company Acquisition Proposal, (iii) fail to include the Company Recommendation or the Company OP General Partner’s approval of the Partnership Merger in the Proxy Statement or any Schedule 14D-9, as applicable, (iv) fail to publicly recommend against any Company Acquisition Proposal that is publicly announced or disclosed within ten (10) Business Days of the request of Parent and/or reaffirm the Company Recommendation within ten (10) Business Days of the request of Parent (any of the actions described in clauses (i), (ii), (iii) and (iv) of this Section 6.5(e), an “Adverse Recommendation Change”), or (v) approve, adopt, declare advisable or recommend (or agree to, resolve or propose to approve, adopt, declare advisable or recommend), or cause the Company to enter into, any Alternative Acquisition Agreement (other than an Acceptable Confidentiality Agreement entered into in accordance with this Section 6.5). Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Company Stockholder Approval, the Company Board (or any committee thereof) shall be permitted to effect an Adverse Recommendation Change and cause the Company to terminate this Agreement pursuant to Section 8.1(c)(ii) if the Company Board (or any committee thereof) (x) has received a bona fide Company Acquisition Proposal (whether or not a Qualified Go Shop Proposal or from a Go Shop Bidder) that, in the good faith determination of the Company Board (or any committee thereof), after consultation with outside legal counsel and financial advisors, constitutes a Superior Proposal, and such Company Acquisition Proposal is not withdrawn, and (y) determines in good faith, after consultation with outside legal counsel, that failure to take such action would be inconsistent with the directors’ duties under applicable Law; provided, however, that neither the Company Board nor any committee thereof shall be entitled to effect an Adverse Recommendation Change or cause the Company to terminate this Agreement pursuant to this Section 6.5(e) unless: (i) the Company has provided a written notice (a “Notice of Superior Proposal”) to Parent and Merger Sub that the Company intends to take such action, specifying in reasonable detail the reasons therefor and describing the material terms and conditions of, and attaching a complete copy of, the Superior Proposal and the terms of any and all agreements in connection therewith, including any financing arrangements, that is the basis of such action (it being understood that such material terms shall include the identity of the Third Party); (ii) during the four (4) Business Day period following Parent’s and Merger Sub’s receipt of the Notice of Superior Proposal, the Company shall, and shall cause its Representatives to, negotiate with Parent and Merger Sub in good faith (to the extent Parent and Merger Sub desire to negotiate) to make such adjustments in the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute a Superior Proposal; (iii) following the close of business on the last day of the four (4) Business Day period, the Company Board (or any committee thereof) shall have determined in good faith (x) after consultation with outside legal counsel and financial advisors, taking into account any changes to this Agreement proposed in writing by Parent and Merger Sub in response to the Notice of Superior Proposal, that the Superior Proposal giving rise to the Notice of Superior Proposal continues to constitute a Superior Proposal and (y) after consultation with outside legal counsel, that failure to effect an Adverse Recommendation Change would be inconsistent with the directors’ duties under applicable Law; and (iv) in connection with such Adverse Recommendation Change, the Company promptly thereafter terminates this Agreement pursuant to Section 8.1(c)(ii), concurrently pays the Termination Payment pursuant to Section 8.3(a)(ii) and then promptly enters into an Alternative Acquisition Agreement with respect to such Superior Proposal. If, following such four (4) Business Day period, the Company Board (or applicable committee) determines not to effect an Adverse Recommendation Change because the Company Acquisition Proposal ceased to constitute a Superior Proposal and thereafter any amendment to the financial terms or any other material amendment of such Company Acquisition Proposal that previously constituted a Superior Proposal occurs, such amendment shall require a new Notice of Superior Proposal, and the Company shall be required to comply again with the requirements of this Section 6.5(e), provided that references to the four (4) Business Day period above shall then be deemed to be references to a two (2) Business Day period. Notwithstanding the foregoing, the Company shall be obligated to negotiate with Parent and Merger Sub for such two (2) Business Day period pursuant to the foregoing sentence on only one occasion if, but only if, the Company Acquisition Proposal relates to a Qualified Go Shop Proposal before (y) the Company Board (or any committee thereof) can effect an Adverse Recommendation Change or (z) the Company can terminate this Agreement pursuant to Section 8.1(c)(ii), in each case, with respect to such Company Acquisition Proposal. (f) Nothing contained in this Section 6.5 or elsewhere in this Agreement shall prohibit the Company or the Company Board (or any committee thereof), directly or indirectly through its Representatives, from disclosing to the Company’s stockholders a position contemplated by Rule 14e-2(a) or Rule 14d-9 promulgated under the Exchange Act or making any disclosure to its stockholders if the Company Board (or any committee thereof) has determined, after consultation with outside legal counsel, that the failure to do so would be inconsistent with applicable Law; provided, however, that any disclosure of a position contemplated by Rule 14e-2(a) under the Exchange Act other than a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) promulgated under the Exchange Act, an express rejection of any applicable Company Acquisition Proposal or an express reaffirmation of the Company Recommendation to the Company’s stockholders in favor of the Merger shall be deemed to be an Adverse Recommendation Change; and provided further that the taking of any such position or making of any such disclosure con

Appears in 1 contract

Sources: Merger Agreement (American Realty Capital Global Trust II, Inc.)

Company Acquisition Proposals. (ai) ~~Notwithstanding anything~~ Subject to ~~the contrary contained in this Agreement but subject to Section 6.5(e), during the period (the “Go Shop Period”~~Sections 5.3(c)(ii) ~~beginning on the date of this Agreement and continuing until 11:59 p.m. (New York City time) on July 7, 2013 (the “No Shop Period Start Date”~~through 5.3(c)(vi), the Company agrees that neither it nor any of its subsidiaries shall, and that it shall use its reasonable best efforts to cause its and its subsidiaries’ Representatives ~~shall have the right~~ retained by it or any of its subsidiaries) not to, directly or indirectly: , (iA) initiate, ~~solicit, induce, cause,~~ solicit or knowingly encourage ~~and facilitate~~ any Company Acquisition Proposals, including by way of providing access to the properties, offices, assets, books, records and personnel of the Company and the Company Subsidiaries and furnishing non-public information pursuant to (but only pursuant to) one or more Acceptable Confidentiality Agreements; provided, however, that any non-public information concerning the Company or the Company Subsidiaries that is provided to any Third Party (or such Third Party’s Representatives) in connection with a Company Acquisition Proposal shall, to the extent not previously provided to Parent or Merger Sub, be provided to Parent prior to or substantially concurrently with providing it to such Third Party; and (ii) engage in and maintain discussions or negotiations inquiries with respect ~~to any Company Acquisition Proposal or inquiry~~to, proposal or offer that constitutes or may reasonably be expected to lead to a Company Acquisition Proposal or otherwise cooperate with or assist or participate in, or facilitate any such inquiries, proposals, offers, discussions or negotiations or the making of any Company Acquisition Proposal. No later than one (1) Business Day after the No Shop Period Start Date, the Company shall notify Parent in writing of the identity of each Person that submitted a Company Acquisition Proposal prior to the No Shop Period Start Date (each, a “Go Shop Bidder”) and provide to Parent (x) a copy of any Company Acquisition Proposal made in writing and any other written material terms or proposals provided (including, to the extent not included therein, a copy of the acquisition agreement and any related transaction documents and financing commitments, if any) to the Company or any Company Subsidiary and (y) a written summary of the material terms of any Company Acquisition Proposal not made in writing (including any material terms proposed orally or supplementally). (b) Except as expressly permitted by this Section 6.5, from and after the No Shop Period Start Date until the earlier of the Effective Time and the date on which this Agreement is terminated pursuant to Section 8.1, neither the Company nor any of the Company Subsidiaries nor any of their respective officers, directors or employees shall, and the Company shall instruct its and the Company Subsidiaries’ Representatives not to, directly or indirectly through another Person, (i) whether publicly or otherwise, solicit, initiate, induce, cause, encourage or facilitate any inquiry, discussion, offer or request that constitutes, or could reasonably be expected to lead toof, a Company Acquisition Proposal, ~~including from~~ (B) engage in any ~~Go Shop Bidder (an “Inquiry”)~~negotiations concerning, or provide any confidential information or data to any Person relating to a Company Acquisition Proposal, (iiC) ~~enter into~~approve or recommend or propose publicly to approve or recommend, continue, conduct, engage, maintain or otherwise participate in any discussions or negotiations regarding, or furnish to any Third Party (including any Go Shop Bidder) any non-public information in connection with, or otherwise cooperate in any way with, or facilitate in any way any effort by, any Third Party (including any Go Shop Bidder) in connection with any Company Acquisition Proposal or ~~Inquiry,~~ (~~iii~~D) ~~approve, endorse~~ approve or ~~recommend a Company Acquisition Proposal (including any Company Acquisition Proposal submitted by a Go Shop Bidder prior to the No Shop Period Start Date)~~recommend, or propose to approve or recommend, or execute or enter ~~into~~ into, any letter of intent, ~~memorandum of understanding,~~ agreement in principle, ~~acquisition agreement,~~ merger agreement, ~~share purchase agreement, asset purchase agreement, share exchange~~ acquisition agreement, option agreement or other similar ~~definitive~~ agreement ~~(other than an Acceptable Confidentiality Agreement entered into in accordance with this Section 6.5) providing for or~~ relating to ~~a Company Acquisition Proposal with~~ any Third Party (including any Go Shop Bidder) (an “Alternative Acquisition Agreement”), (iv) take any action to make the provisions of any Takeover Statute or any restrictive provision of any applicable anti-takeover provision in the Company Charter or Company Bylaws inapplicable to any transactions contemplated by a Company Acquisition Proposal or ~~(v) resolve, agree, approve, recommend or~~ propose publicly ~~propose~~ or agree to do any of the ~~foregoing. Notwithstanding the foregoing, nothing~~ foregoing relating to any Company Acquisition Proposal. (ii) Nothing contained in this Agreement shall ~~prohibit~~ prevent the Company or ~~any of~~ the Company’s Board from complying with its ~~Representatives from (A) (1) informing any Third Party~~ disclosure obligations under Sections 14d-9 and 14e-2 of the ~~provisions~~ Exchange Act; provided, however, that if such disclosure has the effect of withdrawing, modifying or qualifying the approval of this Agreement by the Company’s Board or the Company Board Recommendation in a manner adverse to Parent or the approval of this Agreement by the Company’s Stockholders, Parent shall have the right to terminate this Agreement to the extent set forth in ~~this~~ Section ~~6.5 or~~ 7.4(c). (2iii) ~~contacting~~ Notwithstanding the Person (or the Representatives of such Person) that made any Company Acquisition Proposals solely for the purpose of seeking clarification of solely those terms or conditions of such Company Acquisition Proposal that require clarification so as to determine whether such Company Acquisition Proposal is, or is reasonably likely to result in, a Superior Proposal; and (B) to the extent the Relevant Period extends beyond the No Shop Period Start Date with respect to any Qualified Go Shop Proposal, continuing to engage during such portion of the Relevant Period in the activities described in Section 6.5(a) with respect to the Go Shop Bidder that submitted such Qualified Go Shop Proposal (and the restrictions limitations set forth in ~~this~~ Section ~~6.5(b) and Sections 6.5(d) and 6.5(g) will not apply~~ 5.3(c)(i), until the earlier of the ~~expiration~~ receipt of the ~~Relevant Period~~ Company Stockholder Approval and the ~~withdrawal~~ Termination Date, if the Company receives a Company Acquisition Proposal which (A) constitutes a Company Superior Proposal, or (B) which the Board of the Company determines in good faith could reasonably be expected to result in a Company Superior Proposal, the Company may take the following actions: (x) furnish nonpublic information to the third party making such ~~Qualified Go Shop~~ Company Acquisition Proposal), if, and only if, prior to so furnishing such information, the Company receives from the third party an executed confidentiality agreement with confidentiality provisions no less favorable to the Company than the letter agreement, dated as of February 14, 2007, between the Company and Parent and the letter agreement, dated as of April 13, 2007, between the Company and Parent and (y) engage in discussions or negotiations with the third party with respect to the Company Acquisition Proposal. (civ) Notwithstanding anything in this Agreement to the ~~contrary~~ contrary, nothing contained in this ~~Section 6.5~~Agreement shall prevent the Company or the Company’s Board from, at any time ~~following~~ prior to, but not after, the ~~No Shop Period Start Date and prior to obtaining~~ time this Agreement is adopted by the Company’s Stockholders at the Company Stockholder ~~Approval~~Meeting, ~~the Company may, directly or indirectly through any Representative, in response to~~ recommending such an unsolicited bona fide written Company Acquisition Proposal ~~by a Third Party (whether or not a Go Shop Bidder) made after the date of this Agreement (that did not result from a breach of this Section 6.5) (i) provide access~~ to the ~~properties~~Company’s Stockholders, ~~offices~~if and only to the extent that, ~~assets, books, records and personnel~~ (A) the Board of the Company and the Company Subsidiaries and furnish non-public information to such Third Party (and such Third Party’s Representatives) making the Company Acquisition Proposal (provided, however, that (A) prior to so furnishing such non-public information, the Company receives from the Third Party an executed Acceptable Confidentiality Agreement and (B) any non-public information concerning the Company or the Company Subsidiaries that is provided to such Third Party shall, to the extent not previously provided to Parent or Merger Sub, be provided to Parent prior to or substantially concurrently with providing it to such Third Party), and (ii) engage in discussions or negotiations with such Third Party (and such Third Party’s Representatives) with respect to the Company Acquisition Proposal if, in the case of each of clauses (i) and (ii): (x) the Company Board (or any committee thereof) determines in good faith, after consultation with its outside legal ~~counsel~~ counsel, that failing to do so could reasonably be expected to constitute a breach of the Board of the Company’s fiduciary duties under Applicable Law; and ~~financial advisors,~~ (B) the Company’s Board determines in good faith that such Company Acquisition Proposal ~~constitutes~~(in the form, ~~or is reasonably likely to result in~~other than immaterial changes, ~~a Superior Proposal, and (y)~~ that was the subject of the Company ~~Board~~ Superior Proposal Notice) constitutes a Company Superior Proposal and Parent shall have received written notice (~~or any committee thereof~~the “Company Superior Proposal Notice”) ~~determines in good faith, after consultation with outside legal counsel, that failure~~ of the Company’s intention to take such action ~~would be inconsistent with the directors’ duties under applicable Law.~~ at least four (d4) ~~In addition~~ business days prior to the taking of such action by the Company and has complied with its other obligations under this Section 5.3(c)(iv); provided, however, that the Company’s Board continues to believe, after taking into account any modifications to the terms of the transaction contemplated by this Agreement that are proposed by Parent after its receipt of the Company ~~set forth in~~ Superior Proposal Notice that such Company Acquisition Proposal constitutes a Company Superior Proposal. If there is a Company Change of Recommendation as a result of a Company Acquisition Proposal that is a Company Superior Proposal and the Company’s Board recommends such an unsolicited bona fide written Company Acquisition Proposal pursuant to this ~~Section 6.5, after the No Shop Period Start Date~~clause (iv), the Company shall ~~notify Parent promptly~~ be entitled to terminate this Agreement pursuant to Section 7.3(b). (~~but in no event later~~ v) The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person (other than ~~24 hours~~the parties hereto) ~~after (i) receipt after the No Shop Period Start Date of~~ conducted heretofore with respect to any Company Acquisition ~~Proposal or~~ Proposal. The Company agrees that it will take the necessary steps to promptly inform the officers, directors, employees and Representatives of the Company and its subsidiaries of the obligations undertaken in this Section 5.3(c). (vi) From and after the date of this Agreement, the Company shall promptly orally notify Parent of any request for ~~access to the properties, offices, assets, books, records and personnel of the Company~~ information or any ~~Company Subsidiary~~ inquiries, proposals or ~~any nonpublic information~~ offers relating to ~~the Company or any Company Subsidiary by any Third Party in connection with~~ a Company Acquisition Proposal indicating, in connection with such notice, the name of such Person making such request, inquiry, proposal or any Inquiry from any Person seeking to have discussions or negotiations with the Company relating to a possible Company Acquisition Proposal (such notice shall indicate the identity of the Third Party making the Company Acquisition Proposal, request or Inquiry offer and the material terms and conditions of any proposals or offers and the Company shall provide to Parent written notice of any such inquiry, proposal or offer within forty-eight (48) hours of such event and copies of any written or electronic correspondence to or from any Person making a Company Acquisition Proposal~~, request or Inquiry, including~~ . The Company shall keep Parent informed orally on a ~~copy thereof if in writing and any related material documentation or material correspondence), and (ii) it enters into any discussions or negotiations concerning~~ current basis of the status of any Company Acquisition Proposal, ~~provides access~~ including with respect to the properties, offices, assets, books, records and personnel of the Company or any Company Subsidiary or furnishes any nonpublic information to any Third Party pursuant to Section 6.5(c), and, in each case, the Company shall keep Parent reasonably informed of the status and ~~material~~ terms of any such proposal or offer and whether any such proposal or offer has been withdrawn or rejected and the Company ~~Acquisition Proposals, Inquiries, requests, discussions or negotiations on a reasonably current basis~~ shall provide to Parent written notice of any such developments (including ~~any change to the financial terms or other material terms and conditions thereof and the terms~~ copies of any ~~and all material agreements in connection therewith~~ written proposals or requests for information) within forty-eight (~~including~~ 48) hours. The Company also agrees to provide any financing arrangements)), including by providing a copy of all material documentation or material correspondence relating thereto. (e) Except as permitted by this Section 6.5(e), neither the Company Board nor any committee thereof shall (i) withhold, withdraw, modify or qualify (or publicly propose information to withhold, withdraw, modify or qualify), in a manner adverse to any Parent Party, the Company Recommendation or the Company OP General Partner’s approval of the Partnership Merger, (ii) approve, adopt, endorse or recommend (or publicly propose to approve, adopt, endorse or recommend) any Company Acquisition Proposal, (iii) fail to include the Company Recommendation or the Company OP General Partner’s approval of the Partnership Merger in the Proxy Statement or any Schedule 14D-9, as applicable, (iv) fail to publicly recommend against any Company Acquisition Proposal that is publicly announced or disclosed within ten (10) Business Days of the request of Parent and/or reaffirm the Company Recommendation within ten (10) Business Days of the request of Parent (~~any of the actions described in clauses (i), (ii), (iii~~not previously provided to Parent) ~~and (iv) of this Section 6.5(e), an “Adverse Recommendation Change”), or (v) approve, adopt, declare advisable or recommend (or agree to, resolve or propose~~ that it is providing to approve, adopt, declare advisable or recommend), or cause the Company to enter into, any Alternative Acquisition Agreement (other than an Acceptable Confidentiality Agreement entered into in accordance with this Section 6.5). Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Company Stockholder Approval, the Company Board (or any committee thereof) shall be permitted to effect an Adverse Recommendation Change and cause the Company to terminate this Agreement pursuant to Section 8.1(c)(ii) if the Company Board (or any committee thereof) (x) has received a bona fide Company Acquisition Proposal (whether or not a Qualified Go Shop Proposal or from a Go Shop Bidder) that, in the good faith determination of the Company Board (or any committee thereof), after consultation with outside legal counsel and financial advisors, constitutes a Superior Proposal, and such Company Acquisition Proposal is not withdrawn, and (y) determines in good faith, after consultation with outside legal counsel, that failure to take such action would be inconsistent with the directors’ duties under applicable Law; provided, however, that neither the Company Board nor any committee thereof shall be entitled to effect an Adverse Recommendation Change or cause the Company to terminate this Agreement another Person pursuant to this Section ~~6.5(e~~5.3(c)(vi) ~~unless: (i)~~ at substantially the ~~Company has provided a written notice (a “Notice of Superior Proposal”) to Parent and Merger Sub that the Company intends to take~~ same time it provides such action, specifying in reasonable detail the reasons therefor and describing the material terms and conditions of, and attaching a complete copy of, the Superior Proposal and the terms of any and all agreements in connection therewith, including any financing arrangements, that is the basis of such action (it being understood that such material terms shall include the identity of the Third Party); (ii) during the four (4) Business Day period following Parent’s and Merger Sub’s receipt of the Notice of Superior Proposal, the Company shall, and shall cause its Representatives to, negotiate with Parent and Merger Sub in good faith (to the extent Parent and Merger Sub desire to negotiate) to make such adjustments in the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute a Superior Proposal; (iii) following the close of business on the last day of the four (4) Business Day period, the Company Board (or any committee thereof) shall have determined in good faith (x) after consultation with outside legal counsel and financial advisors, taking into account any changes to this Agreement proposed in writing by Parent and Merger Sub in response to the Notice of Superior Proposal, that the Superior Proposal giving rise to the Notice of Superior Proposal continues to constitute a Superior Proposal and (y) after consultation with outside legal counsel, that failure to effect an Adverse Recommendation Change would be inconsistent with the directors’ duties under applicable Law; and (iv) in connection with such Adverse Recommendation Change, the Company promptly thereafter terminates this Agreement pursuant to Section 8.1(c)(ii), concurrently pays the Termination Payment pursuant to Section 8.3(a)(ii) and then promptly enters into an Alternative Acquisition Agreement with respect information to such Superior Proposal. If, following such four (4) Business Day period, the Company Board (or applicable committee) determines not to effect an Adverse Recommendation Change because the Company Acquisition Proposal ceased to constitute a Superior Proposal and thereafter any amendment to the financial terms or any other material amendment of such Company Acquisition Proposal that previously constituted a Superior Proposal occurs, such amendment shall require a new Notice of Superior Proposal, and the Company shall be required to comply again with the requirements of this Section 6.5(e), provided that references to the four (4) Business Day period above shall then be deemed to be references to a two (2) Business Day period. Notwithstanding the foregoing, the Company shall be obligated to negotiate with Parent and Merger Sub for such two (2) Business Day period pursuant to the foregoing sentence on only one occasion if, but only if, the Company Acquisition Proposal relates to a Qualified Go Shop Proposal before (y) the Company Board (or any committee thereof) can effect an Adverse Recommendation Change or (z) the Company can terminate this Agreement pursuant to Section 8.1(c)(ii), in each case, with respect to such Company Acquisition ProposalPerson. (fvii) ~~Nothing contained in~~ For purposes of this Section 6.5 or elsewhere in this Agreement shall prohibit the Company or the Company Board (or any committee thereof), directly or indirectly through its Representatives, from disclosing to the Company’s stockholders a position contemplated by Rule 14e-2(a) or Rule 14d-9 promulgated under the Exchange Act or making any disclosure to its stockholders if the Company Board (or any committee thereof) has determined, after consultation with outside legal counsel, that the failure to do so would be inconsistent with applicable Law; provided, however, that any disclosure of a position contemplated by Rule 14e-2(a) under the Exchange Act other than a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) promulgated under the Exchange Act, an express rejection of any applicable Company Acquisition Proposal or an express reaffirmation of the Company Recommendation to the Company’s stockholders in favor of the Merger shall be deemed to be an Adverse Recommendation Change; and provided further that the taking of any such position or making of any such disclosure conAgreement:

Appears in 1 contract

Sources: Merger Agreement (Washington Group International Inc)

Company Acquisition Proposals. (ai) ~~Notwithstanding anything~~ Subject to ~~the contrary contained in this Agreement but subject to Section 6.5(e), during the period (the “Go Shop Period”~~Sections 5.3(c)(ii) ~~beginning on the date of this Agreement and continuing until 11:59 p.m. (New York City time) on July 7, 2013 (the “No Shop Period Start Date”~~through 5.3(c)(vi), the Company agrees that neither it nor any of its subsidiaries shall, and that it shall use its reasonable best efforts to cause its and its subsidiaries’ Representatives ~~shall have the right~~ retained by it or any of its subsidiaries) not to, directly or indirectly: , (iA) initiate, ~~solicit, induce, cause,~~ solicit or knowingly encourage ~~and facilitate~~ any Company Acquisition Proposals, including by way of providing access to the properties, offices, assets, books, records and personnel of the Company and the Company Subsidiaries and furnishing non-public information pursuant to (but only pursuant to) one or more Acceptable Confidentiality Agreements; provided, however, that any non-public information concerning the Company or the Company Subsidiaries that is provided to any Third Party (or such Third Party’s Representatives) in connection with a Company Acquisition Proposal shall, to the extent not previously provided to Parent or Merger Sub, be provided to Parent prior to or substantially concurrently with providing it to such Third Party; and (ii) engage in and maintain discussions or negotiations inquiries with respect ~~to any Company Acquisition Proposal or inquiry~~to, proposal or offer that constitutes or may reasonably be expected to lead to a Company Acquisition Proposal or otherwise cooperate with or assist or participate in, or facilitate any such inquiries, proposals, offers, discussions or negotiations or the making of any Company Acquisition Proposal. No later than one (1) Business Day after the No Shop Period Start Date, the Company shall notify Parent in writing of the identity of each Person that submitted a Company Acquisition Proposal prior to the No Shop Period Start Date (each, a “Go Shop Bidder”) and provide to Parent (x) a copy of any Company Acquisition Proposal made in writing and any other written material terms or proposals provided (including, to the extent not included therein, a copy of the acquisition agreement and any related transaction documents and financing commitments, if any) to the Company or any Company Subsidiary and (y) a written summary of the material terms of any Company Acquisition Proposal not made in writing (including any material terms proposed orally or supplementally). (b) Except as expressly permitted by this Section 6.5, from and after the No Shop Period Start Date until the earlier of the Effective Time and the date on which this Agreement is terminated pursuant to Section 8.1, neither the Company nor any of the Company Subsidiaries nor any of their respective officers, directors or employees shall, and the Company shall instruct its and the Company Subsidiaries’ Representatives not to, directly or indirectly through another Person, (i) whether publicly or otherwise, solicit, initiate, induce, cause, encourage or facilitate any inquiry, discussion, offer or request that constitutes, or could reasonably be expected to lead toof, a Company Acquisition Proposal, ~~including from~~ (B) engage in any ~~Go Shop Bidder (an “Inquiry”)~~negotiations concerning, or provide any confidential information or data to any Person relating to a Company Acquisition Proposal, (iiC) ~~enter into~~approve or recommend or propose publicly to approve or recommend, continue, conduct, engage, maintain or otherwise participate in any discussions or negotiations regarding, or furnish to any Third Party (including any Go Shop Bidder) any non-public information in connection with, or otherwise cooperate in any way with, or facilitate in any way any effort by, any Third Party (including any Go Shop Bidder) in connection with any Company Acquisition Proposal or ~~Inquiry,~~ (~~iii~~D) ~~approve, endorse~~ approve or ~~recommend a Company Acquisition Proposal (including any Company Acquisition Proposal submitted by a Go Shop Bidder prior to the No Shop Period Start Date)~~recommend, or propose to approve or recommend, or execute or enter ~~into~~ into, any letter of intent, ~~memorandum of understanding,~~ agreement in principle, ~~acquisition agreement,~~ merger agreement, ~~share purchase agreement, asset purchase agreement, share exchange~~ acquisition agreement, option agreement or other similar ~~definitive~~ agreement ~~(other than an Acceptable Confidentiality Agreement entered into in accordance with this Section 6.5) providing for or~~ relating to ~~a Company Acquisition Proposal with~~ any Third Party (including any Go Shop Bidder) (an “Alternative Acquisition Agreement”), (iv) take any action to make the provisions of any Takeover Statute or any restrictive provision of any applicable anti-takeover provision in the Company Charter or Company Bylaws inapplicable to any transactions contemplated by a Company Acquisition Proposal or ~~(v) resolve, agree, approve, recommend or~~ propose publicly ~~propose~~ or agree to do any of the ~~foregoing. Notwithstanding the foregoing, nothing~~ foregoing relating to any Company Acquisition Proposal. (ii) Nothing contained in this Agreement shall ~~prohibit~~ prevent the Company or ~~any of~~ the Company’s Board from complying with its ~~Representatives from (A) (1) informing any Third Party~~ disclosure obligations under Sections 14d-9 and 14e-2 of the ~~provisions~~ Exchange Act; provided, however, that if such disclosure has the effect of withdrawing, modifying or qualifying the approval of this Agreement by the Company’s Board or the Company Board Recommendation in a manner adverse to Parent or the approval of this Agreement by the Company’s Stockholders, Parent shall have the right to terminate this Agreement to the extent set forth in ~~this~~ Section ~~6.5 or~~ 7.4(c). (2iii) ~~contacting~~ Notwithstanding the Person (or the Representatives of such Person) that made any Company Acquisition Proposals solely for the purpose of seeking clarification of solely those terms or conditions of such Company Acquisition Proposal that require clarification so as to determine whether such Company Acquisition Proposal is, or is reasonably likely to result in, a Superior Proposal; and (B) to the extent the Relevant Period extends beyond the No Shop Period Start Date with respect to any Qualified Go Shop Proposal, continuing to engage during such portion of the Relevant Period in the activities described in Section 6.5(a) with respect to the Go Shop Bidder that submitted such Qualified Go Shop Proposal (and the restrictions limitations set forth in ~~this~~ Section ~~6.5(b) and Sections 6.5(d) and 6.5(g) will not apply~~ 5.3(c)(i), until the earlier of the ~~expiration~~ receipt of the ~~Relevant Period~~ Company Stockholder Approval and the ~~withdrawal~~ Termination Date, if the Company receives a Company Acquisition Proposal which (A) constitutes a Company Superior Proposal, or (B) which the Board of the Company determines in good faith could reasonably be expected to result in a Company Superior Proposal, the Company may take the following actions: (x) furnish nonpublic information to the third party making such ~~Qualified Go Shop~~ Company Acquisition Proposal), if, and only if, prior to so furnishing such information, the Company receives from the third party an executed confidentiality agreement with confidentiality provisions no less favorable to the Company than the letter agreement, dated as of February 14, 2007, between the Company and Parent and the letter agreement, dated as of April 13, 2007, between the Company and Parent and (y) engage in discussions or negotiations with the third party with respect to the Company Acquisition Proposal. (civ) Notwithstanding anything in this Agreement to the ~~contrary~~ contrary, nothing contained in this ~~Section 6.5~~Agreement shall prevent the Company or the Company’s Board from, at any time ~~following~~ prior to, but not after, the ~~No Shop Period Start Date and prior to obtaining~~ time this Agreement is adopted by the Company’s Stockholders at the Company Stockholder ~~Approval~~Meeting, ~~the Company may, directly or indirectly through any Representative, in response to~~ recommending 48 such an unsolicited bona fide written Company Acquisition Proposal ~~by a Third Party (whether or not a Go Shop Bidder) made after the date of this Agreement (that did not result from a breach of this Section 6.5) (i) provide access~~ to the ~~properties~~Company’s Stockholders, ~~offices~~if and only to the extent that, ~~assets, books, records and personnel~~ (A) the Board of the Company and the Company Subsidiaries and furnish non-public information to such Third Party (and such Third Party’s Representatives) making the Company Acquisition Proposal (provided, however, that (A) prior to so furnishing such non-public information, the Company receives from the Third Party an executed Acceptable Confidentiality Agreement and (B) any non-public information concerning the Company or the Company Subsidiaries that is provided to such Third Party shall, to the extent not previously provided to Parent or Merger Sub, be provided to Parent prior to or substantially concurrently with providing it to such Third Party), and (ii) engage in discussions or negotiations with such Third Party (and such Third Party’s Representatives) with respect to the Company Acquisition Proposal if, in the case of each of clauses (i) and (ii): (x) the Company Board (or any committee thereof) determines in good faith, after consultation with its outside legal ~~counsel~~ counsel, that failing to do so could reasonably be expected to constitute a breach of the Board of the Company’s fiduciary duties under Applicable Law; and ~~financial advisors,~~ (B) the Company’s Board determines in good faith that such Company Acquisition Proposal ~~constitutes~~(in the form, ~~or is reasonably likely to result in~~other than immaterial changes, ~~a Superior Proposal, and (y)~~ that was the subject of the Company ~~Board~~ Superior Proposal Notice) constitutes a Company Superior Proposal and Parent shall have received written notice (~~or any committee thereof~~the “Company Superior Proposal Notice”) ~~determines in good faith, after consultation with outside legal counsel, that failure~~ of the Company’s intention to take such action ~~would be inconsistent with the directors’ duties under applicable Law.~~ at least four (d4) ~~In addition~~ business days prior to the taking of such action by the Company and has complied with its other obligations under this Section 5.3(c)(iv); provided, however, that the Company’s Board continues to believe, after taking into account any modifications to the terms of the transaction contemplated by this Agreement that are proposed by Parent after its receipt of the Company ~~set forth in~~ Superior Proposal Notice that such Company Acquisition Proposal constitutes a Company Superior Proposal. If there is a Company Change of Recommendation as a result of a Company Acquisition Proposal that is a Company Superior Proposal and the Company’s Board recommends such an unsolicited bona fide written Company Acquisition Proposal pursuant to this ~~Section 6.5, after the No Shop Period Start Date~~clause (iv), the Company shall ~~notify Parent promptly~~ be entitled to terminate this Agreement pursuant to Section 7.3(b). (~~but in no event later~~ v) The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person (other than ~~24 hours~~the parties hereto) ~~after (i) receipt after the No Shop Period Start Date of~~ conducted heretofore with respect to any Company Acquisition ~~Proposal or~~ Proposal. The Company agrees that it will take the necessary steps to promptly inform the officers, directors, employees and Representatives of the Company and its subsidiaries of the obligations undertaken in this Section 5.3(c). (vi) From and after the date of this Agreement, the Company shall promptly orally notify Parent of any request for ~~access to the properties, offices, assets, books, records and personnel of the Company~~ information or any ~~Company Subsidiary~~ inquiries, proposals or ~~any nonpublic information~~ offers relating to ~~the Company or any Company Subsidiary by any Third Party in connection with~~ a Company Acquisition Proposal indicating, in connection with such notice, the name of such Person making such request, inquiry, proposal or any Inquiry from any Person seeking to have discussions or negotiations with the Company relating to a possible Company Acquisition Proposal (such notice shall indicate the identity of the Third Party making the Company Acquisition Proposal, request or Inquiry offer and the material terms and conditions of any proposals or offers and the Company shall provide to Parent written notice of any such inquiry, proposal or offer within forty-eight (48) hours of such event and copies of any written or electronic correspondence to or from any Person making a Company Acquisition Proposal~~, request or Inquiry, including~~ . The Company shall keep Parent informed orally on a ~~copy thereof if in writing and any related material documentation or material correspondence), and (ii) it enters into any discussions or negotiations concerning~~ current basis of the status of any Company Acquisition Proposal, ~~provides access~~ including with respect to the properties, offices, assets, books, records and personnel of the Company or any Company Subsidiary or furnishes any nonpublic information to any Third Party pursuant to Section 6.5(c), and, in each case, the Company shall keep Parent reasonably informed of the status and ~~material~~ terms of any such proposal or offer and whether any such proposal or offer has been withdrawn or rejected and the Company ~~Acquisition Proposals, Inquiries, requests, discussions or negotiations on a reasonably current basis~~ shall provide to Parent written notice of any such developments (including ~~any change to the financial terms or other material terms and conditions thereof and the terms~~ copies of any ~~and all material agreements in connection therewith~~ written proposals or requests for information) within forty-eight (~~including~~ 48) hours. The Company also agrees to provide any financing arrangements)), including by providing a copy of all material documentation or material correspondence relating thereto. (e) Except as permitted by this Section 6.5(e), neither the Company Board nor any committee thereof shall (i) withhold, withdraw, modify or qualify (or publicly propose information to withhold, withdraw, modify or qualify), in a manner adverse to any Parent Party, the Company Recommendation or the Company OP General Partner’s approval of the Partnership Merger, (ii) approve, adopt, endorse or recommend (or publicly propose to approve, adopt, endorse or recommend) any Company Acquisition Proposal, (iii) fail to include the Company Recommendation or the Company OP General Partner’s approval of the Partnership Merger in the Proxy Statement or any Schedule 14D-9, as applicable, (iv) fail to publicly recommend against any Company Acquisition Proposal that is publicly announced or disclosed within ten (10) Business Days of the request of Parent and/or reaffirm the Company Recommendation within ten (10) Business Days of the request of Parent (~~any of the actions described in clauses (i), (ii), (iii~~not previously provided to Parent) ~~and (iv) of this Section 6.5(e), an “Adverse Recommendation Change”), or (v) approve, adopt, declare advisable or recommend (or agree to, resolve or propose~~ that it is providing to approve, adopt, declare advisable or recommend), or cause the Company to enter into, any Alternative Acquisition Agreement (other than an Acceptable Confidentiality Agreement entered into in accordance with this Section 6.5). Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Company Stockholder Approval, the Company Board (or any committee thereof) shall be permitted to effect an Adverse Recommendation Change and cause the Company to terminate this Agreement pursuant to Section 8.1(c)(ii) if the Company Board (or any committee thereof) (x) has received a bona fide Company Acquisition Proposal (whether or not a Qualified Go Shop Proposal or from a Go Shop Bidder) that, in the good faith determination of the Company Board (or any committee thereof), after consultation with outside legal counsel and financial advisors, constitutes a Superior Proposal, and such Company Acquisition Proposal is not withdrawn, and (y) determines in good faith, after consultation with outside legal counsel, that failure to take such action would be inconsistent with the directors’ duties under applicable Law; provided, however, that neither the Company Board nor any committee thereof shall be entitled to effect an Adverse Recommendation Change or cause the Company to terminate this Agreement another Person pursuant to this Section ~~6.5(e~~5.3(c)(vi) ~~unless: (i)~~ at substantially the ~~Company has provided a written notice (a “Notice of Superior Proposal”) to Parent and Merger Sub that the Company intends to take~~ same time it provides such action, specifying in reasonable detail the reasons therefor and describing the material terms and conditions of, and attaching a complete copy of, the Superior Proposal and the terms of any and all agreements in connection therewith, including any financing arrangements, that is the basis of such action (it being understood that such material terms shall include the identity of the Third Party); (ii) during the four (4) Business Day period following Parent’s and Merger Sub’s receipt of the Notice of Superior Proposal, the Company shall, and shall cause its Representatives to, negotiate with Parent and Merger Sub in good faith (to the extent Parent and Merger Sub desire to negotiate) to make such adjustments in the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute a Superior Proposal; (iii) following the close of business on the last day of the four (4) Business Day period, the Company Board (or any committee thereof) shall have determined in good faith (x) after consultation with outside legal counsel and financial advisors, taking into account any changes to this Agreement proposed in writing by Parent and Merger Sub in response to the Notice of Superior Proposal, that the Superior Proposal giving rise to the Notice of Superior Proposal continues to constitute a Superior Proposal and (y) after consultation with outside legal counsel, that failure to effect an Adverse Recommendation Change would be inconsistent with the directors’ duties under applicable Law; and (iv) in connection with such Adverse Recommendation Change, the Company promptly thereafter terminates this Agreement pursuant to Section 8.1(c)(ii), concurrently pays the Termination Payment pursuant to Section 8.3(a)(ii) and then promptly enters into an Alternative Acquisition Agreement with respect information to such Superior Proposal. If, following such four (4) Business Day period, the Company Board (or applicable committee) determines not to effect an Adverse Recommendation Change because the Company Acquisition Proposal ceased to constitute a Superior Proposal and thereafter any amendment to the financial terms or any other material amendment of such Company Acquisition Proposal that previously constituted a Superior Proposal occurs, such amendment shall require a new Notice of Superior Proposal, and the Company shall be required to comply again with the requirements of this Section 6.5(e), provided that references to the four (4) Business Day period above shall then be deemed to be references to a two (2) Business Day period. Notwithstanding the foregoing, the Company shall be obligated to negotiate with Parent and Merger Sub for such two (2) Business Day period pursuant to the foregoing sentence on only one occasion if, but only if, the Company Acquisition Proposal relates to a Qualified Go Shop Proposal before (y) the Company Board (or any committee thereof) can effect an Adverse Recommendation Change or (z) the Company can terminate this Agreement pursuant to Section 8.1(c)(ii), in each case, with respect to such Company Acquisition ProposalPerson. (fvii) ~~Nothing contained in~~ For purposes of this Section 6.5 or elsewhere in this Agreement shall prohibit the Company or the Company Board (or any committee thereof), directly or indirectly through its Representatives, from disclosing to the Company’s stockholders a position contemplated by Rule 14e-2(a) or Rule 14d-9 promulgated under the Exchange Act or making any disclosure to its stockholders if the Company Board (or any committee thereof) has determined, after consultation with outside legal counsel, that the failure to do so would be inconsistent with applicable Law; provided, however, that any disclosure of a position contemplated by Rule 14e-2(a) under the Exchange Act other than a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) promulgated under the Exchange Act, an express rejection of any applicable Company Acquisition Proposal or an express reaffirmation of the Company Recommendation to the Company’s stockholders in favor of the Merger shall be deemed to be an Adverse Recommendation Change; and provided further that the taking of any such position or making of any such disclosure conAgreement:

Appears in 1 contract

Sources: Merger Agreement (Urs Corp /New/)

Company Acquisition Proposals. (a) ~~Notwithstanding anything~~ The Company shall, and shall cause its Representatives to, (i) immediately cease and terminate (or cause to be terminated) all existing discussions or negotiations with any Person with respect to any Company Acquisition Proposal other than the ~~contrary contained~~ Transactions, (ii) request the prompt return or destruction of all confidential information previously made available by it or on its behalf in ~~this Agreement but subject~~ connection with any actual or potential Company Acquisition Proposal and (iii) terminate access by any such Person and its Affiliates and Representatives to ~~Section 6.5(e)~~any data room (virtual, ~~during the period (the “Go Shop Period”~~online or otherwise) ~~beginning~~ maintained by or on ~~the date~~ behalf of ~~this Agreement and continuing until 11:59 p.m. (New York City time) on July 7, 2013 (the “No Shop Period Start Date”),~~ the Company and its ~~Representatives~~ Subsidiaries. The Company shall ~~have the right to~~not terminate, ~~directly~~ waive, amend, release or ~~indirectly: (i) initiate, solicit, induce, cause, encourage and facilitate~~ modify in any respect any material provision of any confidentiality agreement to which any Acquired Company or any of its Affiliates is a party with respect to any Company Acquisition Proposals, including by way of providing access to the properties, offices, assets, books, records and personnel of the Company and the Company Subsidiaries and furnishing non-public information pursuant to (but only pursuant to) one or more Acceptable Confidentiality AgreementsProposal; provided, however, that ~~any non-public information concerning~~ the Company shall be entitled to waive any standstill provision included in any such confidentiality agreement or ~~the~~ any standstill provision contained in any standstill agreement to which any Acquired Company ~~Subsidiaries that~~ or any of its Affiliates is ~~provided to any Third Party (or such Third Party’s Representatives) in connection with~~ a Company Acquisition Proposal shall, to the extent not previously provided to Parent or Merger Sub, be provided to Parent prior to or substantially concurrently with providing it to such Third Party; and (ii) engage in and maintain discussions or negotiations party with respect to any Company Acquisition Proposal or ~~inquiry~~any proposal, ~~proposal~~ inquiry or offer that ~~constitutes or may~~ would reasonably be expected to lead to a Company Acquisition Proposal or otherwise cooperate with or assist or participate in, or facilitate any such inquiries, proposals, offers, discussions or negotiations or the making of any Company Acquisition Proposal. No later than one (1) Business Day after the No Shop Period Start Date, if the Company ~~shall notify Parent~~ Board determines in ~~writing~~ good faith (after consultation with the Company’s outside legal counsel) that failure to waive such standstill would reasonably be expected to be inconsistent with the directors’ fiduciary duties to the stockholders of the ~~identity of each Person that submitted a~~ Company Acquisition Proposal prior to the No Shop Period Start Date (each, a “Go Shop Bidder”) and provide to Parent (x) a copy of any Company Acquisition Proposal made in writing and any other written material terms or proposals provided (including, to the extent not included therein, a copy of the acquisition agreement and any related transaction documents and financing commitments, if any) to the Company or any Company Subsidiary and (y) a written summary of the material terms of any Company Acquisition Proposal not made in writing (including any material terms proposed orally or supplementally)under applicable Law. (b) ~~Except as expressly permitted by~~ From the date of this ~~Section 6.5, from and after the No Shop Period Start Date~~ Agreement until the earlier of the Effective Time and the ~~date on which~~ termination of this Agreement ~~is terminated pursuant to~~ in accordance with Section ~~8.1~~7.1, ~~neither the Company nor any of the Company Subsidiaries nor any of their respective officers~~except as permitted under this Agreement (including Section 5.3(c), ~~directors or employees shall~~Section 5.3(e) and Section 5.3(g)), ~~and~~ the Company shall ~~instruct~~ not, and shall cause its Representatives and ~~the Company Subsidiaries’ Representatives~~ other Acquired Companies not to, directly or ~~indirectly through another Person~~indirectly, (i) ~~whether publicly or otherwise,~~ solicit, ~~initiate, induce, cause,~~ initiate or knowingly encourage or knowingly induce or facilitate the making, submission or announcement of any ~~inquiry~~inquiries, ~~discussion, offer~~ proposals or ~~request~~ offers constituting or that ~~constitutes, or could~~ would reasonably be expected to lead ~~to,~~ to a Company Acquisition Proposal, ~~including from any Go Shop Bidder (an “Inquiry”),~~ (ii) ~~enter into, continue, conduct, engage, maintain or otherwise participate in any discussions or negotiations regarding, or furnish to any Third Party (including any Go Shop Bidder)~~ make available any non-public information regarding any of the Acquired Companies to any Person (other than Parent and Parent’s or the Company’s Representatives) in ~~connection with~~response to a Company Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to a Company Acquisition Proposal, (iii) engage in discussions or negotiations with any Person with respect to any Company Acquisition Proposal (other than to state that they currently are not permitted to have discussions), (iv) approve, endorse or recommend any Company Acquisition Proposal, (v) make or authorize any statement, recommendation or solicitation in support of any Company Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to a Company Acquisition Proposal, or ~~otherwise cooperate~~ (vi) enter into any letter of intent or agreement in principle or any ~~way with~~Contract providing for, relating to or ~~facilitate in any way any effort by, any Third Party (including any Go Shop Bidder)~~ in connection with any Company Acquisition Proposal or Inquiry, (iii) approve, endorse or recommend a Company Acquisition Proposal (including any Company Acquisition Proposal submitted by a Go Shop Bidder prior to the No Shop Period Start Date), or enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, share purchase agreement, asset purchase agreement, share exchange agreement, option agreement or other similar definitive agreement (other than an Acceptable Confidentiality Agreement entered into in accordance with this Section 6.5) providing for or relating to a Company Acquisition Proposal with any Third Party (including any Go Shop Bidder) (an “Alternative Acquisition Agreement”), (iv) take any action to make the provisions of any Takeover Statute or any restrictive provision of any applicable anti-takeover provision in the Company Charter or Company Bylaws inapplicable to any transactions contemplated by a Company Acquisition Proposal or (v) resolve, agree, approve, recommend or publicly propose or agree to do any of the foregoing. Notwithstanding the foregoing, nothing in this Agreement shall prohibit the Company or any of its Representatives from (A) (1) informing any Third Party of the provisions set forth in this Section 6.5 or (2) contacting the Person (or the Representatives of such Person) that made any Company Acquisition Proposals solely for the purpose of seeking clarification of solely those terms or conditions of such Company Acquisition Proposal that require clarification so as to determine whether such Company Acquisition Proposal is, or is reasonably likely to result in, a Superior Proposal; and (B) to the extent the Relevant Period extends beyond the No Shop Period Start Date with respect to any Qualified Go Shop Proposal, continuing to engage during such portion of the Relevant Period in the activities described in Section 6.5(a) with respect to the Go Shop Bidder that submitted such Qualified Go Shop Proposal (and the restrictions set forth in this Section 6.5(b) and Sections 6.5(d) and 6.5(g) will not apply until the earlier of the expiration of the Relevant Period and the withdrawal of such Qualified Go Shop Proposal). (c) Notwithstanding anything to the contrary in this Agreement (including this Section ~~6.5~~5.3), if at any time ~~following the No Shop Period Start Date and~~ prior to obtaining the Company Stockholder Approval, (x)(i) the Company ~~may, directly or indirectly through any Representative, in response to an unsolicited~~ receives a bona fide written Company Acquisition Proposal ~~by a Third Party (whether or not a Go Shop Bidder) made after the date of this Agreement (~~that did not arise or result from a material breach of this Section ~~6.5)~~ 5.3, (i) ~~provide access to the properties, offices, assets, books, records and personnel of~~ the Company ~~and~~ may contact the ~~Company Subsidiaries and furnish non-public information to~~ Person who has made such ~~Third Party (and such Third Party’s Representatives) making the~~ Company Acquisition Proposal ~~(provided, however, that (A) prior~~ in order to ~~so furnishing~~ clarify the terms of such non-public information, the Company receives from the Third Party an executed Acceptable Confidentiality Agreement and (B) any non-public information concerning the Company or the Company Subsidiaries that is provided to such Third Party shall, to the extent not previously provided to Parent or Merger Sub, be provided to Parent prior to or substantially concurrently with providing it to such Third Party), and (ii) engage in discussions or negotiations with such Third Party (and such Third Party’s Representatives) with respect to the Company Acquisition Proposal ~~if, in the case of each of clauses (i) and (ii): (x)~~ so that the Company Board (or any committee thereof) may inform itself about such Company Acquisition Proposal, (ii) if the Company Board determines in good ~~faith,~~ faith (after consultation with the Company’s outside legal counsel and outside financial advisors, ) that such Company Acquisition Proposal constitutes, or is would be reasonably likely to ~~result in~~constitute or lead to, a Company Superior ~~Proposal~~Proposal and (iii) the Company Board determines in good faith (after consultation with the Company’s outside legal counsel and outside financial advisors) that failure to take such action would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law, and (y) the Company Board (or any committee thereof) determines in good faith, after consultation with outside legal counsel, that failure to take such action would be inconsistent with the directors’ duties under applicable Law. (d) In addition to the other obligations of the Company set forth in has not breached this Section ~~6.5, after the No Shop Period Start Date~~5.3 in any material respect with respect to such Company Acquisition Proposal, the Company may (A) make available information (including non-public information) with respect to the Acquired Companies to the Person making such Company Acquisition Proposal pursuant to a Company Acceptable Confidentiality Agreement; and (B) participate in discussions or negotiations with such Person making such Company Acquisition Proposal regarding such Company Acquisition Proposal. The Company shall promptly (and in any event within twenty-four (24) hours) notify Parent ~~promptly (but~~ in ~~no event later than 24 hours) after (i)~~ writing following the receipt ~~after the No Shop Period Start Date~~ of any Company Acquisition Proposal or any ~~request for access~~ inquiry, proposal or offer that would reasonably be expected to ~~the properties, offices, assets, books, records and personnel of the Company or any Company Subsidiary or any nonpublic information relating~~ lead to ~~the Company or any Company Subsidiary by any Third Party in connection with~~ a Company Acquisition ~~Proposal or any Inquiry from any Person seeking to have discussions or negotiations with the Company relating to a possible Company Acquisition Proposal (such~~ Proposal, which notice ~~shall indicate~~ will include the identity of the ~~Third Party~~ person or persons making such Company Acquisition Proposal, a written summary of the material terms of such Company Acquisition Proposal and, concurrently with the delivery thereof to the person (or its Representatives) making the Company Acquisition Proposal, ~~request~~ any information concerning the Company, the Company Subsidiaries or ~~Inquiry and~~ their businesses, assets or properties provided or made available to such other person (or its representatives) by the ~~material terms and conditions of such~~ Company Acquisition Proposal, request or Inquiry, including a copy thereof if in writing and any related material documentation or material correspondence), and (ii) it enters into any discussions or negotiations concerning any after receipt by the Company ~~Acquisition Proposal, provides access to the properties, offices, assets, books, records and personnel~~ of the Company Acquisition Proposal that was not previously provided or ~~any~~ made available to Parent (such information and documentation, the “Company ~~Subsidiary or furnishes any nonpublic information to any Third Party pursuant to Section 6.5(c~~Acquisition Proposal Information”)~~, and, in each case~~. Following the delivery of such notice, the Company shall keep Parent reasonably informed on a prompt basis (and in any event within 24 hours) of any material developments, material discussions or material negotiations and the status thereof regarding any Company Acquisition Proposal described in the immediately preceding sentence, and none of the ~~status and material terms of~~ Company or any ~~such~~ Company Subsidiary shall enter into any Contract that would prohibit them from providing the Company Acquisition ~~Proposals, Inquiries, requests, discussions~~ Proposal Information to Parent or negotiations on a reasonably current basis (including any change to the financial terms or other material terms and conditions thereof and the terms of any and all material agreements in connection therewith (including any financing arrangements)), including by providing a copy of all material documentation or material correspondence relating theretoits Representatives. (ed) ~~Except~~ From the date of this Agreement until the earlier of the Effective Time and the termination of this Agreement in accordance with Section 7.1, except as otherwise permitted by this Agreement (including Section ~~6.5(e~~5.3(e), Section 5.3(f) or Section 5.3(g)), neither the Company Board nor any committee thereof shall (i) withhold, withdraw, ~~modify~~ qualify, or ~~qualify~~ modify, in each case in a manner adverse to Parent, the Company Recommendation, (ii) adopt, authorize, recommend, endorse or otherwise declare advisable (or publicly propose to ~~withhold, withdraw, modify or qualify), in a manner adverse to any Parent Party, the Company Recommendation or the Company OP General Partner’s approval of the Partnership Merger, (ii) approve,~~ adopt, ~~endorse~~ authorize, recommend or ~~recommend (or publicly propose to approve, adopt, endorse or recommend~~endorse) any Company Acquisition Proposal or any offer or proposal that would reasonably be expected to lead to a Company Acquisition Proposal, (iii) approve or cause the Company to enter into any merger agreement, letter of intent or similar agreement relating to any Company Acquisition Proposal or that could lead to a Company Acquisition Proposal, (iv) fail to include the Company Recommendation ~~or the Company OP General Partner’s approval of the Partnership Merger~~ in the Proxy ~~Statement or any Schedule 14D-9, as applicable~~Statement/Prospectus, (ivv) ~~fail~~ take any action or make any recommendation or public statement in connection with a tender offer or exchange offer other than an unequivocal recommendation against such offer; or (vi) resolve or agree to publicly recommend against any Company Acquisition Proposal that is publicly announced or disclosed within ten (10) Business Days of the request of Parent and/or reaffirm the Company Recommendation within ten (10) Business Days of the request of Parent (do any of the ~~actions described~~ foregoing (any action set forth in the foregoing clauses (ii)—(vi), ~~(ii), (iii) and (iv) of this Section 6.5(e), an~~ a “Company Adverse Recommendation Change”)~~, or~~ . (ve) approve, adopt, declare advisable or recommend (or agree to, resolve or propose to approve, adopt, declare advisable or recommend), or cause the Company to enter into, any Alternative Acquisition Agreement (other than an Acceptable Confidentiality Agreement entered into in accordance with this Section 6.5). Notwithstanding anything to the contrary in this Agreement (including this Section 5.3), if prior to obtaining the Company Stockholder Approval, (i) the Company receives a bona fide written Company Acquisition Proposal that did not arise or result from a material breach of this Section 5.3, (ii) the Company Board determines in good faith (after consultation with the Company’s outside legal counsel and outside financial advisors) that (x) such Company Acquisition Proposal constitutes a Company Superior Proposal and, in any event, (y) the failure to make a Company Adverse Recommendation Change would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law, and (iii) the Company and the Company Board shall have complied with all of its obligations set forth in this Section 5.3 (including Section 5.3(f)) then, the Company may make a Company Adverse Recommendation Change. (f) The Company Board shall not take any action set forth in Section 5.3(e) unless the Company has (i) provided written notice to Parent (a “Notice of Company Superior Proposal”) informing Parent that the Company has determined that a Company Acquisition Proposal constitutes a Company Superior Proposal, identifying the Person making such Company Superior Proposal and providing a copy of the definitive agreement intended to effect such Company Superior Proposal and the other Company Acquisition Proposal Information, (ii) for the four (4) Business Day period following Parent’s receipt of the Notice of Company Superior Proposal (the “Company Superior Proposal Notice Period”), the Company Board shall have negotiated in good faith with Parent and considered in good faith any counteroffers or proposals, including to amend the terms and conditions of this Agreement (to the extent Parent wishes to do so), and (iii) after complying with clauses (i) and (ii), determined in good faith (after consultation with the Company’s outside legal counsel and financial advisors and taking into account any such counteroffer or proposed amendment to the terms and conditions of this Agreement) that such Company Acquisition Proposal remains a Company Superior Proposal. In the event of any material revisions to such Company Superior Proposal offered by the Person making such Company Superior Proposal (including any change in purchase price), at the Company shall be required to deliver a new written notice to Parent and to again comply with the requirements of this Section 5.3(f) with respect to such new written notice, except that the Company Superior Proposal Notice Period shall be two (2) Business Days with respect to any ~~time~~ such new written notice. (g) Other than in connection with circumstances involving or relating to a Company Acquisition Proposal (which shall be subject to Section 5.3(e) and Section 5.3(f) and shall not be subject to this Section 5.3(g)), prior to obtaining the Company Stockholder Approval, the Company Board ~~(or any committee thereof) shall be permitted to~~ may effect an a Company Adverse Recommendation ~~Change and cause the~~ Change, in response to a Company ~~to terminate this Agreement pursuant to Section 8.1(c)(ii~~Intervening Event only if (i) if the Company Board ~~(or any committee thereof) (x) has received a bona fide Company Acquisition Proposal (whether or not a Qualified Go Shop Proposal or from a Go Shop Bidder) that,~~ determines in ~~the~~ good faith ~~determination of the Company Board~~ (~~or any committee thereof),~~ after consultation with the Company’s outside ~~legal counsel and financial advisors, constitutes a Superior Proposal, and such Company Acquisition Proposal is not withdrawn, and (y~~counsel) ~~determines in good faith, after consultation with outside legal counsel,~~ that the failure to take such action would reasonably be expected to be inconsistent with ~~the directors’~~ its fiduciary duties under applicable Law~~; provided~~, ~~however, that neither~~ (ii) the Company ~~Board nor any committee thereof shall be entitled~~ has notified Parent in writing that it intends to effect an such a Company Adverse Recommendation Change ~~or cause the Company to terminate this Agreement~~ pursuant to this Section ~~6.5(e) unless: (i) the Company has provided a written~~ 5.3(g), which notice (a “Notice of Superior Proposal”) to Parent and Merger Sub that the Company intends to take such action, specifying in reasonable detail the reasons therefor and describing the material terms and conditions of, and attaching a complete copy of, the Superior Proposal and the terms of any and all agreements in connection therewith, including any financing arrangements, that is the basis of such action (it being understood that such material terms shall include ~~the identity~~ a reasonably detailed description of the ~~Third Party);~~ facts and circumstances giving rise to such Company Intervening Event, (iiiii) ~~during the~~ for a period of four (4) Business ~~Day period~~ Days following ~~Parent’s and Merger Sub’s receipt~~ the notice delivered pursuant to clause (ii) of ~~the Notice of Superior Proposal~~this Section 5.3(g), the Company ~~shall, and~~ Board shall ~~cause its Representatives to, negotiate~~ have negotiated in good faith with Parent and ~~Merger Sub~~ shall have considered in good faith (any proposals to ~~the extent Parent and Merger Sub desire to negotiate) to make such adjustments in~~ amend the terms and conditions of this Agreement (to the extent Parent wishes to do so) so that the failure to take such ~~Superior Proposal ceases~~ action would no longer reasonably be expected to ~~constitute a Superior Proposal;~~ be inconsistent with the Company Board’s fiduciary duties under applicable Law; and (~~iii~~iv) ~~following~~ no earlier than the ~~close~~ end of ~~business on the last day of the~~ such four (4) Business ~~Day~~ Day-period, the Company Board ~~(or any committee thereof)~~ shall have determined in good faith (x) after consultation with the Company’s outside ~~legal~~ counsel and ~~financial advisors,~~ taking into account any ~~changes to~~ adjustment or modification of the terms of this Agreement proposed ~~in writing~~ by ~~Parent and Merger Sub in response to the Notice of Superior Proposal,~~ Parent) that the ~~Superior Proposal giving rise to the Notice of Superior Proposal continues to constitute a Superior Proposal and (y) after consultation with outside legal counsel, that~~ failure to ~~effect an Adverse Recommendation Change~~ take such action would still reasonably be expected to be inconsistent with ~~the directors’~~ its fiduciary duties under applicable Law; and (iv) in connection with such Adverse Recommendation Change, the Company promptly thereafter terminates this Agreement pursuant to Section 8.1(c)(ii), concurrently pays the Termination Payment pursuant to Section 8.3(a)(ii) and then promptly enters into an Alternative Acquisition Agreement with respect to such Superior Proposal. If, following such four (4) Business Day period, the Company Board (or applicable committee) determines not to effect an Adverse Recommendation Change because the Company Acquisition Proposal ceased to constitute a Superior Proposal and thereafter any amendment to the financial terms or any other material amendment of such Company Acquisition Proposal that previously constituted a Superior Proposal occurs, such amendment shall require a new Notice of Superior Proposal, and the Company shall be required to comply again with the requirements of this Section 6.5(e), provided that references to the four (4) Business Day period above shall then be deemed to be references to a two (2) Business Day period. Notwithstanding the foregoing, the Company shall be obligated to negotiate with Parent and Merger Sub for such two (2) Business Day period pursuant to the foregoing sentence on only one occasion if, but only if, the Company Acquisition Proposal relates to a Qualified Go Shop Proposal before (y) the Company Board (or any committee thereof) can effect an Adverse Recommendation Change or (z) the Company can terminate this Agreement pursuant to Section 8.1(c)(ii), in each case, with respect to such Company Acquisition Proposal. (fh) Nothing contained in this Section ~~6.5 or elsewhere in this Agreement~~ 5.3 shall prohibit the Company ~~or the Company~~ Board from (~~or any committee thereof), directly or indirectly through its Representatives, from~~ A) taking and disclosing ~~to the Company’s stockholders~~ a position contemplated by Item 1012(a) of Regulation M-A, Rule 14e-2(a) ~~or Rule 14d-9 promulgated~~ under the Exchange Act or Rule 14d-9 under the Exchange Act, or from issuing a “stop, look and listen” communication or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act pending disclosure of its positions thereunder, or (B) making any disclosure to its stockholders if the Company Board determines in good faith (~~or any committee thereof) has determined,~~ after consultation with the Company’s outside ~~legal~~ counsel, ) that the failure to do so would reasonably be expected to be inconsistent with the Company Board’s fiduciary duties to the stockholders of the Company under applicable Law; provided, however, the Company Board shall not be permitted to take any such action that constitutes a Company Adverse Recommendation Change except in compliance with Section 5.3(e) or Section 5.3(g); provided, further that any such disclosure ~~of a position contemplated by Rule 14e-2(a) under the Exchange Act~~ (other than a “stop, look and listen” or similar communication of the type ~~contemplated~~ communicated by Rule 14d-9(f) ~~promulgated~~ under the Exchange Act) that addresses the approval, ~~an express rejection~~ recommendation or declaration of ~~any applicable~~ advisability by the Company Board with respect to this Agreement or a Company Acquisition Proposal ~~or an express reaffirmation of the Company Recommendation to the Company’s stockholders in favor of the Merger~~ shall be deemed to be an a Company Adverse Recommendation ~~Change;~~ Change unless the Company Board expressly reaffirms the Company Recommendation and ~~provided further that the taking of~~ rejects any Company Acquisition Proposal within ten (10) Business Days after any such ~~position or making~~ disclosure. (i) For purposes of ~~any such disclosure con~~this Agreement:

Appears in 1 contract

Sources: Merger Agreement (ExOne Co)

Company Acquisition Proposals. (a) ~~Notwithstanding anything~~ The Company shall, and shall cause its Representatives to, (i) immediately cease and terminate (or cause to be terminated) all existing discussions or negotiations with any Person with respect to any Company Acquisition Proposal other than the ~~contrary contained~~ Transactions, (ii) request the prompt return or destruction of all confidential information previously made available by it or on its behalf in ~~this Agreement but subject~~ connection with any actual or potential Company Acquisition Proposal and (iii) terminate access by any such Person and its Affiliates and Representatives to ~~Section 6.5(e)~~any data room (virtual, ~~during the period (the “Go Shop Period”~~online or otherwise) ~~beginning~~ maintained by or on ~~the date~~ behalf of ~~this Agreement and continuing until 11:59 p.m. (New York City time) on July 7, 2013 (the “No Shop Period Start Date”),~~ the Company and its ~~Representatives~~ Subsidiaries. The Company shall ~~have the right to~~not terminate, ~~directly~~ waive, amend, release or ~~indirectly: (i) initiate, solicit, induce, cause, encourage and facilitate~~ modify in any respect any material provision of any confidentiality agreement to which any Acquired Company or any of its Affiliates is a party with respect to any Company Acquisition Proposals, including by way of providing access to the properties, offices, assets, books, records and personnel of the Company and the Company Subsidiaries and furnishing non-public information pursuant to (but only pursuant to) one or more Acceptable Confidentiality AgreementsProposal; provided, however, that ~~any non-public information concerning~~ the Company shall be entitled to waive any standstill provision included in any such confidentiality agreement or ~~the~~ any standstill provision contained in any standstill agreement to which any Acquired Company ~~Subsidiaries that~~ or any of its Affiliates is ~~provided to any Third Party (or such Third Party’s Representatives) in connection with~~ a Company Acquisition Proposal shall, to the extent not previously provided to Parent or Merger Sub, be provided to Parent prior to or substantially concurrently with providing it to such Third Party; and (ii) engage in and maintain discussions or negotiations party with respect to any Company Acquisition Proposal or ~~inquiry~~any proposal, ~~proposal~~ inquiry or offer that ~~constitutes or may~~ would reasonably be expected to lead to a Company Acquisition Proposal or otherwise cooperate with or assist or participate in, or facilitate any such inquiries, proposals, offers, discussions or negotiations or the making of any Company Acquisition Proposal. No later than one (1) Business Day after the No Shop Period Start Date, if the Company ~~shall notify Parent~~ Board determines in ~~writing~~ good faith (after consultation with the Company’s outside legal counsel) that failure to waive such standstill would reasonably be expected to be inconsistent with the directors’ fiduciary duties to the stockholders of the ~~identity of each Person that submitted a~~ Company Acquisition Proposal prior to the No Shop Period Start Date (each, a “Go Shop Bidder”) and provide to Parent (x) a copy of any Company Acquisition Proposal made in writing and any other written material terms or proposals provided (including, to the extent not included therein, a copy of the acquisition agreement and any related transaction documents and financing commitments, if any) to the Company or any Company Subsidiary and (y) a written summary of the material terms of any Company Acquisition Proposal not made in writing (including any material terms proposed orally or supplementally)under applicable Law. (b) ~~Except as expressly permitted by~~ From the date of this ~~Section 6.5, from and after the No Shop Period Start Date~~ Agreement until the earlier of the Effective Time and the ~~date on which~~ termination of this Agreement ~~is terminated pursuant to~~ in accordance with Section ~~8.1~~7.1, ~~neither the Company nor any of the Company Subsidiaries nor any of their respective officers~~except as permitted under this Agreement (including Section 5.3(c), ~~directors or employees shall~~Section 5.3(e) and Section 5.3(g)), ~~and~~ the Company shall ~~instruct~~ not, and shall cause its Representatives and ~~the Company Subsidiaries’ Representatives~~ other Acquired Companies not to, directly or ~~indirectly through another Person~~indirectly, (i) ~~whether publicly or otherwise,~~ solicit, ~~initiate, induce, cause,~~ initiate or knowingly encourage or knowingly induce or facilitate the making, submission or announcement of any ~~inquiry~~inquiries, ~~discussion, offer~~ proposals or ~~request~~ offers constituting or that ~~constitutes, or could~~ would reasonably be expected to lead ~~to,~~ to a Company Acquisition Proposal, ~~including from any Go Shop Bidder (an “Inquiry”),~~ (ii) ~~enter into, continue, conduct, engage, maintain or otherwise participate in any discussions or negotiations regarding, or furnish to any Third Party (including any Go Shop Bidder)~~ make available any non-public information regarding any of the Acquired Companies to any Person (other than Parent and Parent’s or the Company’s Representatives) in ~~connection with~~response to a Company Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to a Company Acquisition Proposal, (iii) engage in discussions or negotiations with any Person with respect to any Company Acquisition Proposal (other than to state that they currently are not permitted to have discussions), (iv) approve, endorse or recommend any Company Acquisition Proposal, (v) make or authorize any statement, recommendation or solicitation in support of any Company Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to a Company Acquisition Proposal, or ~~otherwise cooperate~~ (vi) enter into any letter of intent or agreement in principle or any ~~way with~~Contract providing for, relating to or ~~facilitate in any way any effort by, any Third Party (including any Go Shop Bidder)~~ in connection with any Company Acquisition Proposal or Inquiry, (iii) approve, endorse or recommend a Company Acquisition Proposal (including any Company Acquisition Proposal submitted by a Go Shop Bidder prior to the No Shop Period Start Date), or enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, share purchase agreement, asset purchase agreement, share exchange agreement, option agreement or other similar definitive agreement (other than an Acceptable Confidentiality Agreement entered into in accordance with this Section 6.5) providing for or relating to a Company Acquisition Proposal with any Third Party (including any Go Shop Bidder) (an “Alternative Acquisition Agreement”), (iv) take any action to make the provisions of any Takeover Statute or any restrictive provision of any applicable anti-takeover provision in the Company Charter or Company Bylaws inapplicable to any transactions contemplated by a Company Acquisition Proposal or (v) resolve, agree, approve, recommend or publicly propose or agree to do any of the foregoing. Notwithstanding the foregoing, nothing in this Agreement shall prohibit the Company or any of its Representatives from (A) (1) informing any Third Party of the provisions set forth in this Section 6.5 or (2) contacting the Person (or the Representatives of such Person) that made any Company Acquisition Proposals solely for the purpose of seeking clarification of solely those terms or conditions of such Company Acquisition Proposal that require clarification so as to determine whether such Company Acquisition Proposal is, or is reasonably likely to result in, a Superior Proposal; and (B) to the extent the Relevant Period extends beyond the No Shop Period Start Date with respect to any Qualified Go Shop Proposal, continuing to engage during such portion of the Relevant Period in the activities described in Section 6.5(a) with respect to the Go Shop Bidder that submitted such Qualified Go Shop Proposal (and the restrictions set forth in this Section 6.5(b) and Sections 6.5(d) and 6.5(g) will not apply until the earlier of the expiration of the Relevant Period and the withdrawal of such Qualified Go Shop Proposal). (c) Notwithstanding anything to the contrary in this Agreement (including this Section ~~6.5~~5.3), if at any time ~~following the No Shop Period Start Date and~~ prior to obtaining the Company Stockholder Approval, (x)(i) the Company ~~may, directly or indirectly through any Representative, in response to an unsolicited~~ receives a bona fide written Company Acquisition Proposal ~~by a Third Party (whether or not a Go Shop Bidder) made after the date of this Agreement (~~that did not arise or result from a material breach of this Section ~~6.5)~~ 5.3, (i) ~~provide access to the properties, offices, assets, books, records and personnel of~~ the Company ~~and~~ may contact the ~~Company Subsidiaries and furnish non-public information to~~ Person who has made such ~~Third Party (and such Third Party’s Representatives) making the~~ Company Acquisition Proposal ~~(provided, however, that (A) prior~~ in order to ~~so furnishing~~ clarify the terms of such non-public information, the Company receives from the Third Party an executed Acceptable Confidentiality Agreement and (B) any non-public information concerning the Company or the Company Subsidiaries that is provided to such Third Party shall, to the extent not previously provided to Parent or Merger Sub, be provided to Parent prior to or substantially concurrently with providing it to such Third Party), and (ii) engage in discussions or negotiations with such Third Party (and such Third Party’s Representatives) with respect to the Company Acquisition Proposal ~~if, in the case of each of clauses (i) and (ii): (x)~~ so that the Company Board (or any committee thereof) may inform itself about such Company Acquisition Proposal, (ii) if the Company Board determines in good ~~faith,~~ faith (after consultation with the Company’s outside legal counsel and outside financial advisors, ) that such Company Acquisition Proposal constitutes, or is would be reasonably likely to ~~result in~~constitute or lead to, a Company Superior ~~Proposal~~Proposal and (iii) the Company Board determines in good faith (after consultation with the Company’s outside legal counsel and outside financial advisors) that failure to take such action would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law, and (y) the Company Board (or any committee thereof) determines in good faith, after consultation with outside legal counsel, that failure to take such action would be inconsistent with the directors’ duties under applicable Law. (d) In addition to the other obligations of the Company set forth in has not breached this Section ~~6.5, after the No Shop Period Start Date~~5.3 in any material respect with respect to such Company Acquisition Proposal, the Company may (A) make available information (including non-public information) with respect to the Acquired Companies to the Person making such Company Acquisition Proposal pursuant to a Company Acceptable Confidentiality Agreement; and (B) participate in discussions or negotiations with such Person making such Company Acquisition Proposal regarding such Company Acquisition Proposal. The Company shall promptly (and in any event within twenty-four (24) hours) notify Parent ~~promptly (but~~ in ~~no event later than 24 hours) after (i)~~ writing following the receipt ~~after the No Shop Period Start Date~~ of any Company Acquisition Proposal or any ~~request for access~~ inquiry, proposal or offer that would reasonably be expected to ~~the properties, offices, assets, books, records and personnel of the Company or any Company Subsidiary or any nonpublic information relating~~ lead to ~~the Company or any Company Subsidiary by any Third Party in connection with~~ a Company Acquisition ~~Proposal or any Inquiry from any Person seeking to have discussions or negotiations with the Company relating to a possible Company Acquisition Proposal (such~~ Proposal, which notice ~~shall indicate~~ will include the identity of the ~~Third Party~~ person or persons making such Company Acquisition Proposal, a written summary of the material terms of such Company Acquisition Proposal and, concurrently with the delivery thereof to the person (or its Representatives) making the Company Acquisition Proposal, ~~request~~ any information concerning the Company, the Company Subsidiaries or ~~Inquiry and~~ their businesses, assets or properties provided or made available to such other person (or its representatives) by the ~~material terms and conditions of such~~ Company Acquisition Proposal, request or Inquiry, including a copy thereof if in writing and any related material documentation or material correspondence), and (ii) it enters into any discussions or negotiations concerning any after receipt by the Company ~~Acquisition Proposal, provides access to the properties, offices, assets, books, records and personnel~~ of the Company Acquisition Proposal that was not previously provided or ~~any~~ made available to Parent (such information and documentation, the “Company ~~Subsidiary or furnishes any nonpublic information to any Third Party pursuant to Section 6.5(c~~Acquisition Proposal Information”)~~, and, in each case~~. Following the delivery of such notice, the Company shall keep Parent reasonably informed on a prompt basis (and in any event within 24 hours) of any material developments, material discussions or material negotiations and the status thereof regarding any Company Acquisition Proposal described in the immediately preceding sentence, and none of the ~~status and material terms of~~ Company or any ~~such~~ Company Subsidiary shall enter into any Contract that would prohibit them from providing the Company Acquisition ~~Proposals, Inquiries, requests, discussions~~ Proposal Information to Parent or negotiations on a reasonably current basis (including any change to the financial terms or other material terms and conditions thereof and the terms of any and all material agreements in connection therewith (including any financing arrangements)), including by providing a copy of all material documentation or material correspondence relating theretoits Representatives. (ed) ~~Except~~ From the date of this Agreement until the earlier of the Effective Time and the termination of this Agreement in accordance with Section 7.1, except as otherwise permitted by this Agreement (including Section ~~6.5(e~~5.3(e), Section 5.3(f) or Section 5.3(g)), neither the Company Board nor any committee thereof shall (i) withhold, withdraw, ~~modify~~ qualify, or ~~qualify~~ modify, in each case in a manner adverse to Parent, the Company Recommendation, (ii) adopt, authorize, recommend, endorse or otherwise declare advisable (or publicly propose to ~~withhold, withdraw, modify or qualify), in a manner adverse to any Parent Party, the Company Recommendation or the Company OP General Partner’s approval of the Partnership Merger, (ii) approve,~~ adopt, ~~endorse~~ authorize, recommend or ~~recommend (or publicly propose to approve, adopt, endorse or recommend~~endorse) any Company Acquisition Proposal or any offer or proposal that would reasonably be expected to lead to a Company Acquisition Proposal, (iii) approve or cause the Company to enter into any merger agreement, letter of intent or similar agreement relating to any Company Acquisition Proposal or that could lead to a Company Acquisition Proposal, (iv) fail to include the Company Recommendation ~~or the Company OP General Partner’s approval of the Partnership Merger~~ in the Proxy ~~Statement or any Schedule 14D-9, as applicable~~Statement/Prospectus, (ivv) ~~fail~~ take any action or make any recommendation or public statement in connection with a tender offer or exchange offer other than an unequivocal recommendation against such offer; or (vi) resolve or agree to publicly recommend against any Company Acquisition Proposal that is publicly announced or disclosed within ten (10) Business Days of the request of Parent and/or reaffirm the Company Recommendation within ten (10) Business Days of the request of Parent (do any of the ~~actions described~~ foregoing (any action set forth in the foregoing clauses (i) - (vi), ~~(ii), (iii) and (iv) of this Section 6.5(e), an~~ a “Company Adverse Recommendation Change”)~~, or~~ . (ve) approve, adopt, declare advisable or recommend (or agree to, resolve or propose to approve, adopt, declare advisable or recommend), or cause the Company to enter into, any Alternative Acquisition Agreement (other than an Acceptable Confidentiality Agreement entered into in accordance with this Section 6.5). Notwithstanding anything to the contrary in this Agreement (including this Section 5.3), if prior to obtaining the Company Stockholder Approval, (i) the Company receives a bona fide written Company Acquisition Proposal that did not arise or result from a material breach of this Section 5.3, (ii) the Company Board determines in good faith (after consultation with the Company’s outside legal counsel and outside financial advisors) that (x) such Company Acquisition Proposal constitutes a Company Superior Proposal and, in any event, (y) the failure to make a Company Adverse Recommendation Change would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law, and (iii) the Company and the Company Board shall have complied with all of its obligations set forth in this Section 5.3 (including Section 5.3(f)) then, the Company may make a Company Adverse Recommendation Change. (f) The Company Board shall not take any action set forth in Section 5.3(e) unless the Company has (i) provided written notice to Parent (a “Notice of Company Superior Proposal”) informing Parent that the Company has determined that a Company Acquisition Proposal constitutes a Company Superior Proposal, identifying the Person making such Company Superior Proposal and providing a copy of the definitive agreement intended to effect such Company Superior Proposal and the other Company Acquisition Proposal Information, (ii) for the four (4) Business Day period following Parent’s receipt of the Notice of Company Superior Proposal (the “Company Superior Proposal Notice Period”), the Company Board shall have negotiated in good faith with Parent and considered in good faith any counteroffers or proposals, including to amend the terms and conditions of this Agreement (to the extent Parent wishes to do so), and (iii) after complying with clauses (i) and (ii), determined in good faith (after consultation with the Company’s outside legal counsel and financial advisors and taking into account any such counteroffer or proposed amendment to the terms and conditions of this Agreement) that such Company Acquisition Proposal remains a Company Superior Proposal. In the event of any material revisions to such Company Superior Proposal offered by the Person making such Company Superior Proposal (including any change in purchase price), at the Company shall be required to deliver a new written notice to Parent and to again comply with the requirements of this Section 5.3(f) with respect to such new written notice, except that the Company Superior Proposal Notice Period shall be two (2) Business Days with respect to any ~~time~~ such new written notice. (g) Other than in connection with circumstances involving or relating to a Company Acquisition Proposal (which shall be subject to Section 5.3(e) and Section 5.3(f) and shall not be subject to this Section 5.3(g)), prior to obtaining the Company Stockholder Approval, the Company Board ~~(or any committee thereof) shall be permitted to~~ may effect an a Company Adverse Recommendation ~~Change and cause the~~ Change, in response to a Company ~~to terminate this Agreement pursuant to Section 8.1(c)(ii~~Intervening Event only if (i) if the Company Board ~~(or any committee thereof) (x) has received a bona fide Company Acquisition Proposal (whether or not a Qualified Go Shop Proposal or from a Go Shop Bidder) that,~~ determines in ~~the~~ good faith ~~determination of the Company Board~~ (~~or any committee thereof),~~ after consultation with the Company’s outside ~~legal counsel and financial advisors, constitutes a Superior Proposal, and such Company Acquisition Proposal is not withdrawn, and (y~~counsel) ~~determines in good faith, after consultation with outside legal counsel,~~ that the failure to take such action would reasonably be expected to be inconsistent with ~~the directors’~~ its fiduciary duties under applicable Law~~; provided~~, ~~however, that neither~~ (ii) the Company ~~Board nor any committee thereof shall be entitled~~ has notified Parent in writing that it intends to effect an such a Company Adverse Recommendation Change ~~or cause the Company to terminate this Agreement~~ pursuant to this Section ~~6.5(e) unless: (i) the Company has provided a written~~ 5.3(g), which notice (a “Notice of Superior Proposal”) to Parent and Merger Sub that the Company intends to take such action, specifying in reasonable detail the reasons therefor and describing the material terms and conditions of, and attaching a complete copy of, the Superior Proposal and the terms of any and all agreements in connection therewith, including any financing arrangements, that is the basis of such action (it being understood that such material terms shall include ~~the identity~~ a reasonably detailed description of the ~~Third Party);~~ facts and circumstances giving rise to such Company Intervening Event, (iiiii) ~~during the~~ for a period of four (4) Business ~~Day period~~ Days following ~~Parent’s and Merger Sub’s receipt~~ the notice delivered pursuant to clause (ii) of ~~the Notice of Superior Proposal~~this Section 5.3(g), the Company ~~shall, and~~ Board shall ~~cause its Representatives to, negotiate~~ have negotiated in good faith with Parent and ~~Merger Sub~~ shall have considered in good faith (any proposals to ~~the extent Parent and Merger Sub desire to negotiate) to make such adjustments in~~ amend the terms and conditions of this Agreement (to the extent Parent wishes to do so) so that the failure to take such ~~Superior Proposal ceases~~ action would no longer reasonably be expected to ~~constitute a Superior Proposal;~~ be inconsistent with the Company Board’s fiduciary duties under applicable Law; and (~~iii~~iv) ~~following~~ no earlier than the ~~close~~ end of ~~business on the last day of the~~ such four (4) Business ~~Day~~ Day-period, the Company Board ~~(or any committee thereof)~~ shall have determined in good faith (x) after consultation with the Company’s outside ~~legal~~ counsel and ~~financial advisors,~~ taking into account any ~~changes to~~ adjustment or modification of the terms of this Agreement proposed ~~in writing~~ by ~~Parent and Merger Sub in response to the Notice of Superior Proposal,~~ Parent) that the ~~Superior Proposal giving rise to the Notice of Superior Proposal continues to constitute a Superior Proposal and (y) after consultation with outside legal counsel, that~~ failure to ~~effect an Adverse Recommendation Change~~ take such action would still reasonably be expected to be inconsistent with ~~the directors’~~ its fiduciary duties under applicable Law; and (iv) in connection with such Adverse Recommendation Change, the Company promptly thereafter terminates this Agreement pursuant to Section 8.1(c)(ii), concurrently pays the Termination Payment pursuant to Section 8.3(a)(ii) and then promptly enters into an Alternative Acquisition Agreement with respect to such Superior Proposal. If, following such four (4) Business Day period, the Company Board (or applicable committee) determines not to effect an Adverse Recommendation Change because the Company Acquisition Proposal ceased to constitute a Superior Proposal and thereafter any amendment to the financial terms or any other material amendment of such Company Acquisition Proposal that previously constituted a Superior Proposal occurs, such amendment shall require a new Notice of Superior Proposal, and the Company shall be required to comply again with the requirements of this Section 6.5(e), provided that references to the four (4) Business Day period above shall then be deemed to be references to a two (2) Business Day period. Notwithstanding the foregoing, the Company shall be obligated to negotiate with Parent and Merger Sub for such two (2) Business Day period pursuant to the foregoing sentence on only one occasion if, but only if, the Company Acquisition Proposal relates to a Qualified Go Shop Proposal before (y) the Company Board (or any committee thereof) can effect an Adverse Recommendation Change or (z) the Company can terminate this Agreement pursuant to Section 8.1(c)(ii), in each case, with respect to such Company Acquisition Proposal. (fh) Nothing contained in this Section ~~6.5 or elsewhere in this Agreement~~ 5.3 shall prohibit the Company ~~or the Company~~ Board from (~~or any committee thereof), directly or indirectly through its Representatives, from~~ A) taking and disclosing ~~to the Company’s stockholders~~ a position contemplated by Item 1012(a) of Regulation M-A, Rule 14e-2(a) ~~or Rule 14d-9 promulgated~~ under the Exchange Act or Rule 14d-9 under the Exchange Act, or from issuing a “stop, look and listen” communication or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act pending disclosure of its positions thereunder, or (B) making any disclosure to its stockholders if the Company Board determines in good faith (~~or any committee thereof) has determined,~~ after consultation with the Company’s outside ~~legal~~ counsel, ) that the failure to do so would reasonably be expected to be inconsistent with the Company Board’s fiduciary duties to the stockholders of the Company under applicable Law; provided, however, the Company Board shall not be permitted to take any such action that constitutes a Company Adverse Recommendation Change except in compliance with Section 5.3(e) or Section 5.3(g); provided, further that any such disclosure ~~of a position contemplated by Rule 14e-2(a) under the Exchange Act~~ (other than a “stop, look and listen” or similar communication of the type ~~contemplated~~ communicated by Rule 14d-9(f) ~~promulgated~~ under the Exchange Act) that addresses the approval, ~~an express rejection~~ recommendation or declaration of ~~any applicable~~ advisability by the Company Board with respect to this Agreement or a Company Acquisition Proposal ~~or an express reaffirmation of the Company Recommendation to the Company’s stockholders in favor of the Merger~~ shall be deemed to be an a Company Adverse Recommendation ~~Change;~~ Change unless the Company Board expressly reaffirms the Company Recommendation and ~~provided further that the taking of~~ rejects any Company Acquisition Proposal within ten (10) Business Days after any such ~~position or making~~ disclosure. (i) For purposes of ~~any such disclosure con~~this Agreement:

Appears in 1 contract

Sources: Merger Agreement (Desktop Metal, Inc.)

Common use of Company Acquisition Proposals Clause in Contracts