Company Acquisition Proposals. (a) Notwithstanding anything to the contrary contained in this Agreement but subject to Section 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 April 16, 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 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 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 simultaneously with providing it to such Third Party, and (ii) engage in and maintain discussions or negotiations with respect to any 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 terms or proposals provided (including financing commitments) 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 terms proposed orally or supplementally). (b) Except as expressly permitted by this Section 7.5, from and after the No Shop Period Start Date until the Effective 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 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 (vi) resolve, agree, approve, recommend or publicly propose or agree to do any of the foregoing. (c) Notwithstanding anything to the contrary in this Section 7.5, at any time following the No Shop Period Start Date and prior to the 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 made after the date of this Agreement (that did not result from a breach of this Section 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) furnish non-public information to such Third Party (and such Third Party’s Representatives) making a Company Acquisition Proposal (provided, however, that (A) prior to so furnishing such 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 or Merger Sub prior to or 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 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 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 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 of any Company Acquisition Proposal or any request for nonpublic information relating to the Company or any Company Subsidiary by any Third 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 any Company Acquisition Proposals, Inquiries, proposals or offers, including a copy thereof if in writing and any related documentation or correspondence), and (ii) it enters into any discussions or negotiations concerning any Company Acquisition Proposal or provides nonpublic information or data to any Person in accordance with this Section 7.5(d), and, in each case, the Company shall keep Parent informed of the status and terms of any such Company Acquisition Proposals, Inquiries, proposals, offers, discussions or negotiations on a current basis (including any change to the financial terms, conditions or other material terms 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 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 Parent or Merger Sub, the Company 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 in the Schedule 14D-9 and, if Company Stockholder Approval is required under the MGCL in order to consummate the Merger other than pursuant to Section 3-106 of the MGCL, in the Proxy Statement, (iv) fail to publicly recommend against any Company Acquisition Proposal 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 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 7.5). Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to the Offer Closing, the Company Board shall be permitted to effect an Adverse Recommendation Change if the Company Board (x) has received a bona fide Company Acquisition Proposal (that did not result from a breach of this Section 7.5) that, in the good faith determination of the Company 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, that in the event of any such termination, the Company complies with its obligation to pay the Termination Payment pursuant to Section 9.3(a)(iii)). (f) The Company Board shall not be entitled to effect an Adverse Recommendation Change pursuant to Section 7.5(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 five (5) 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 end of the five (5) Business Day period, the Company Board shall have determined in good 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 or otherwise, that the Superior Proposal giving rise to the Notice of Superior Proposal continues to constitute a Superior Proposal and, after consultation with outside legal counsel, that failure to take such action would be inconsistent with the directors’ duties under applicable Law. Any amendment to the financial terms or any other material amendment of such Superior Proposal shall require a new Notice of Superior Proposal, and the Company shall be required to comply again with the requirements of this Section 7.5(f); provided, however, that references to the five (5) Business Day period above shall then be deemed to be references to a three (3) Business Day period. (g) Nothing contained in this Section 7.5 or elsewhere in this Agreement shall prohibit the Company or the Company 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 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 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 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
Samples: Merger Agreement (Cole Credit Property Trust Inc), Merger Agreement (American Realty Capital Properties, Inc.)
Company Acquisition Proposals. (a) Notwithstanding anything to Except as permitted by, and subject to, this Section 5.3(a), Section 5.3(c), Section 5.3(e) and Section 5.3(g), and except as provided below in respect of any Window Period Bidder, from the contrary contained in date hereof until the earlier of the Merger Effective Time and the date, if any, on which this Agreement but subject is terminated pursuant to Section 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 April 16, 2014 (the “No Shop Period Start Date”)8.1, the Company and its 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 shall have the right (acting under the direction of the Company, the Company Board Operating Partnership or any committee thereof) of the other Company Subsidiaries to, directly or indirectly, (i) initiate, solicit, induceinitiate or knowingly encourage or facilitate any inquiry, causeproposal or offer with respect to, encourage and facilitate or the announcement, making or completion of, any Company Acquisition ProposalsProposal, including by way of providing 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 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 simultaneously with providing it to such Third Party, and (ii) engage in and maintain discussions or negotiations with respect to any inquiry, proposal 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, 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 terms or proposals provided (including financing commitments) 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 terms proposed orally or supplementally).
(b) Except as expressly permitted by this Section 7.5, from and after the No Shop Period Start Date until the Effective 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 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 withor 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 InquiryProposal, (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 7.5Agreement) 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) amend agree to 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 (vi) resolve, agree, approve, recommend or propose publicly propose or agree to do any of the foregoing.
(c) . Notwithstanding anything to the contrary in this Section 7.5, at any time following the No Shop Period Start Date and prior to the Offer Closing (and in no event after that time), the Company may, directly or indirectly through any Representativeforegoing, in response to an unsolicited bona fide written Company Acquisition Proposal by a Third Party made after 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 (that did not result 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 breach third party (including any Affiliates of this Section 7.5; provided that such Person and joint venture partners of such Person in connection with any bona fide written Company Acquisition Proposal received from Proposal, each a Go Shop Bidder “Window Period Bidder”) that the Company Board determines, after consultation with outside legal counsel and not actively solicited following the No Shop Period Start Date shall not its financial advisors, constitutes, or could reasonably be deemed a solicitation of a expected to lead to, any Company Acquisition Proposal in breach of this Superior Proposal, then, subject to Section 7.55.3(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 such Third Party (and such Third Party’s Representativesbut only pursuant to) making a Company Acquisition Proposal one or more Acceptable Confidentiality Agreements (provided, however, that (A) prior to so furnishing such informationthe extent Company, the Company receives from Operating Partnership, the Third Party an executed Acceptable Confidentiality Agreementother Company Subsidiaries or their respective Representatives furnishes, and (B) makes available or provided access to a Window Period Bidder of any non-public information concerning 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 Section 5.3(b) shall preclude the Company, the Company Operating Partnership, the other Company Subsidiaries or their respective Representatives from contacting any such Person solely for the purpose of complying with the immediately preceding sentence.
(c) Notwithstanding the foregoing or anything to the contrary in this Section 5.3, if, prior to obtaining the Company Stockholder Approval, (i) the Company or the Company Subsidiaries Operating Partnership receives a written Company Acquisition Proposal (including any Company Acquisition Proposal previously received from any Window Period Bidder) that is provided the Company Board believes in good faith to be bona fide, (ii) such Third Party shallCompany Acquisition Proposal was not the result of a violation of Section 5.3(a) (provided, that 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 extent not previously provided terms and conditions thereof so as to Parent determine whether such Company Acquisition Proposal constitutes, or Merger Subcould reasonably be expected to lead to, be provided to Parent or Merger Sub prior to or simultaneously with providing it to such Third Partya Company Superior Proposal), 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): (xiii) the Company Board determines (or, with respect to any Company Acquisition Proposal from any Window Period Bidder, has previously determined and not rescinded such determination) 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 inlead 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) engage in discussions and participate in negotiations with the Person making such Company Acquisition Proposal (and such Person’s Representatives) regarding such Company Acquisition Proposal.
(d) 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 Transactions, and (B) shall not adopt, approve, or publicly recommend, endorse or otherwise declare advisable the adoption of any Company Acquisition Proposal (each such action set forth in this Section 5.3(d)(i) being referred to herein as a “Company Adverse Recommendation Change”), and (ii) shall not 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 any Company Acquisition Proposal (other than an Acceptable Confidentiality Agreement pursuant to Section 5.3(a) or Section 5.3(c)).
(e) Notwithstanding anything in this Agreement to the contrary, at any time prior to obtaining the Company Stockholder Approval, the Company Board may (i) make a Company Adverse Recommendation Change (and may thereafter and following the termination of this Agreement pursuant to Section 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) 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 (after consultation with outside counsel and its financial advisors) that the applicable Company Acquisition Proposal (whether or not from a Window Period Bidder) 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 absence of a Company Acquisition Proposal, (A) a Company Intervening Event has occurred, and (B) the Company Board determines in good faith, faith (after consultation with outside legal counsel, counsel and its financial advisors) that the failure to take make such action Company Adverse Recommendation Change would reasonably be expected to be inconsistent with the directors’ its duties under applicable Law; providedso long as, however, that in each of the foregoing clauses 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, 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 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) during the four business day period beginning on the date of delivery of the applicable Company Change Notice to Parent, the Company shall have offered to negotiate with (and, if accepted, negotiated in good faith with) Parent (to the extent that Parent desires to negotiate) in making adjustments to the terms and conditions of this Agreement such that (1) in circumstances involving or relating to a Company Acquisition Proposal, the Company Superior Proposal ceases to be a Company Superior Proposal (provided that any amendment, supplement or modification to any Company Acquisition Proposal was shall be deemed a new Company Acquisition Proposal and the Company may not solicited terminate this Agreement pursuant to Section 8.1 or make a Company Adverse Recommendation Change pursuant to clause (i) of this Section 5.3(e) unless the Company has again complied with the requirements of this Section 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)), and (2) in violation of Section 7.5circumstances not involving a Company Acquisition Proposal, as may be proposed by Parent.
(df) In addition to the other obligations of the Company set forth in this Section 7.5, after the No Shop Period Start Date, the The Company shall notify Parent promptly (but in no event later than 24 hoursone (1) Business Day) after (i) it obtains Knowledge of the receipt by the Company, the Company 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 Proposal, any inquiry that could reasonably be expected to lead to a Company Acquisition Proposal, or any request for nonpublic non-public information relating to the 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 Third PartyPerson 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 Inquiry from any Person seeking to have discussions or negotiations with confidentiality agreement between the Company relating and such Person entered into prior to a possible Company Acquisition Proposal (such notice shall indicate the date of this Agreement, the identity of the Third Party making the parties and a copy of such Company Acquisition Proposal, request or Inquiry and or, if not made in writing, a written description of the material terms and conditions of any Company Acquisition Proposals, Inquiries, proposals or offers, including a copy thereof if in writing and any related documentation or correspondence), and (ii) it enters into any discussions or negotiations concerning any Company Acquisition Proposal or provides nonpublic information or data to any Person in accordance with this Section 7.5(d), and, in each case, the thereof. The Company shall keep Parent informed reasonably apprised, on a reasonably current basis, of the status and terms of material terms, including any material or proposed developments with respect to discussions and negotiations concerning any such Company Acquisition Proposals, Inquiries, proposals, offers, discussions or negotiations on a current basis (including any change to the financial terms, conditions or other material terms 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 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 Parent or Merger Sub, the Company 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 in the Schedule 14D-9 and, if Company Stockholder Approval is required under the MGCL in order to consummate the Merger other than pursuant to Section 3-106 of the MGCL, in the Proxy Statement, (iv) fail to publicly recommend against any Company Acquisition Proposal 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 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 7.5). Notwithstanding anything to the contrary set forth in this Agreement, at any time prior but subject to the Offer Closingpreceding three sentences, nothing herein shall prohibit the Company, the Company Board shall be permitted to effect an Adverse Recommendation Change if Operating Partnership, the other Company Board (x) has received Subsidiaries and their respective Representatives from contacting any Person submitting a bona fide Company Acquisition Proposal (that did was not the result from of a breach violation of this Section 7.55.3) that, in solely to clarify the good faith determination terms of the Company Board, after consultation with outside legal counsel and financial advisors, constitutes a Superior Proposal, after having complied with, and giving effect to all Acquisition Proposal for the sole purpose of the adjustments which may be offered by Parent and Merger Sub pursuant to Section 7.5(f), and Company Board informing itself about 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, that in the event of any such termination, the Company complies with its obligation to pay the Termination Payment pursuant to Section 9.3(a)(iii)).
(f) The Company Board shall not be entitled to effect an Adverse Recommendation Change pursuant to Section 7.5(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 five (5) 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 end of the five (5) Business Day period, the Company Board shall have determined in good 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 or otherwise, that the Superior Proposal giving rise to the Notice of Superior Proposal continues to constitute a Superior Proposal and, after consultation with outside legal counsel, that failure to take such action would be inconsistent with the directors’ duties under applicable Law. Any amendment to the financial terms or any other material amendment of such Superior Proposal shall require a new Notice of Superior Proposal, and the Company shall be required to comply again with the requirements of this Section 7.5(f); provided, however, that references to the five (5) Business Day period above shall then be deemed to be references to a three (3) Business Day period.
(g) Nothing contained in this Section 7.5 or elsewhere in this Agreement 5.3 shall prohibit the Company or the Company Board, directly or indirectly Board 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 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 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 Offer and the Merger Act shall not be deemed to be an a Company Adverse Recommendation Change; and provided further that the taking of any such position or making of any such disclosure 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
Samples: Merger Agreement (OHI Healthcare Properties Limited Partnership), Merger Agreement (MedEquities Realty Trust, Inc.)
Company Acquisition Proposals. (ai) Notwithstanding anything Subject to the contrary contained in this Agreement but subject to Section 7.5(f), 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 April 16, 2014 (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 (acting under the direction of the Company Board retained by it or any committee thereofof 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 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 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 simultaneously with providing it to such Third Party, and (ii) engage in and maintain discussions or negotiations inquiries with respect to any inquiryto, 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 terms or proposals provided (including financing commitments) 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 terms proposed orally or supplementally).
(b) Except as expressly permitted by this Section 7.5, from and after the No Shop Period Start Date until the Effective 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 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 intoapprove 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, (iiiD) 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 7.5) providing for or relating to a any 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 (vi) resolve, agree, approve, recommend or propose publicly propose or agree to do any of the foregoingforegoing relating to any Company Acquisition Proposal.
(cii) Notwithstanding anything to the contrary Nothing contained in this Section 7.5, at any time following the No Shop Period Start Date and prior to the Offer Closing (and in no event after that time), Agreement shall prevent the Company may, directly or indirectly through any Representative, in response to an unsolicited bona fide written Company Acquisition Proposal by a Third Party made after the date Company’s Board from complying with its disclosure obligations under Sections 14d-9 and 14e-2 of this Agreement (that did not result from a breach of this Section 7.5the Exchange Act; 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) furnish non-public information to such Third Party (and such Third Party’s Representatives) making a Company Acquisition Proposal (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 Section 7.4(c).
(iii) Notwithstanding the limitations set forth in Section 5.3(c)(i), until the earlier of the receipt of the Company Stockholder Approval and the 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 Company Acquisition Proposal, if, and only if, prior to so furnishing such information, the Company receives from the Third Party third party an executed Acceptable Confidentiality Agreementconfidentiality 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 (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 simultaneously with providing it to such Third Party), and (iiy) engage in discussions or negotiations with such Third Party (and such Third Party’s Representatives) the third party with respect to the Company Acquisition Proposal.
(iv) Notwithstanding anything in this Agreement to the contrary, nothing contained in this Agreement shall prevent the Company or the Company’s Board from, at any time prior to, but not after, the time this Agreement is adopted by the Company’s Stockholders at the Company Stockholder Meeting, recommending such an unsolicited bona fide written Company Acquisition Proposal ifto the Company’s Stockholders, in if and only to the case of each of clauses extent that, (i) and (ii): (xA) the Board of the Company Board 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 inother than immaterial changes, a Superior Proposal, and (y) that was the subject of the Company Board determines in good faith, after consultation with outside legal counsel, that failure Superior Proposal Notice) constitutes a Company Superior Proposal and Parent shall have received written notice (the “Company Superior Proposal Notice”) of the Company’s intention to take such action would be inconsistent with the directors’ duties under applicable Law; provided, however, that in each of the foregoing clauses at least four (i4) 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 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 of any Company Acquisition Proposal or any request for nonpublic information relating to the Company or any Company Subsidiary by any Third 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 any Company Acquisition Proposals, Inquiries, proposals or offers, including a copy thereof if in writing and any related documentation or correspondence), and (ii) it enters into any discussions or negotiations concerning any Company Acquisition Proposal or provides nonpublic information or data to any Person in accordance with this Section 7.5(d), and, in each case, the Company shall keep Parent informed of the status and terms of any such Company Acquisition Proposals, Inquiries, proposals, offers, discussions or negotiations on a current basis (including any change to the financial terms, conditions or other material terms 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 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 Parent or Merger Sub, the Company 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 in the Schedule 14D-9 and, if Company Stockholder Approval is required under the MGCL in order to consummate the Merger other than pursuant to Section 3-106 of the MGCL, in the Proxy Statement, (iv) fail to publicly recommend against any Company Acquisition Proposal 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 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 7.5). Notwithstanding anything to the contrary set forth in this Agreement, at any time business days prior to the Offer Closing, the Company Board shall be permitted to effect an Adverse Recommendation Change if the Company Board (x) has received a bona fide Company Acquisition Proposal (that did not result from a breach of this Section 7.5) that, in the good faith determination of the Company 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, that in the event of any such termination, the Company complies with its obligation to pay the Termination Payment pursuant to Section 9.3(a)(iii)).
(f) The Company Board shall not be entitled to effect an Adverse Recommendation Change pursuant to Section 7.5(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 taking of such action (it being understood that such material terms shall include the identity of the Third Party), (ii) during the five (5) Business Day period following Parent’s and Merger Sub’s receipt of the Notice of Superior Proposal, by the Company shall, and shall cause has complied with 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 end of the five (5) Business Day period, the Company Board shall have determined in good 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 or otherwise, that the Superior Proposal giving rise to the Notice of Superior Proposal continues to constitute a Superior Proposal and, after consultation with outside legal counsel, that failure to take such action would be inconsistent with the directors’ duties other obligations under applicable Law. Any amendment to the financial terms or any other material amendment of such Superior Proposal shall require a new Notice of Superior Proposal, and the Company shall be required to comply again with the requirements of this Section 7.5(f5.3(c)(iv); provided, however, that references the Company’s Board continues to believe, after taking into account any modifications to the five terms of the transaction contemplated by this Agreement that are proposed by Parent after its receipt of the Company 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 clause (5) Business Day period above iv), the Company shall then be deemed entitled to be references terminate this Agreement pursuant to a three (3) Business Day periodSection 7.3(b).
(gv) Nothing contained in this Section 7.5 or elsewhere in this Agreement shall prohibit the The Company or the Company 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 has determined, after consultation with outside legal counsel, agrees that the failure to do so would be inconsistent with applicable Law; provided, however, that any disclosure 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 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, it will immediately cease and cause to be terminated any existing discussionsactivities, discussions or negotiations or communications with any Person (other than the parties hereto) conducted prior to the No Shop Period Start Date heretofore with respect to any Company Acquisition Proposal Proposal. The Company agrees that it will take the necessary steps to promptly inform the officers, directors, employees and shall request Representatives of the prompt return or destruction Company and its subsidiaries of all confidential information previously furnished the obligations undertaken in connection therewith. this Section 5.3(c).
(vi) From and after the No Shop Period Start Datedate of this Agreement, the Company shall promptly orally notify Parent of any request for information or any inquiries, proposals or offers relating to a Company Acquisition Proposal indicating, in connection with such notice, the name of such Person making such request, inquiry, proposal or offer and the Company Subsidiaries material terms and their respective officers, directors and employees shall, conditions of any proposals or offers and the Company shall instruct provide to Parent written notice of any such inquiry, proposal or offer within forty-eight (48) hours of such event and cause its and the copies of any written or electronic correspondence to or from any Person making a 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 AgreementAcquisition Proposal. The Company shall not submit to keep Parent informed orally on a current basis of the vote status of its stockholders any Company Acquisition Proposal other than the Merger prior Proposal, including with respect to the termination status and terms of any such proposal or offer and whether any such proposal or offer has been withdrawn or rejected and the Company shall provide to Parent written notice of any such developments (including copies of any written proposals or requests for information) within forty-eight (48) hours. The Company also agrees to provide any information to Parent (not previously provided to Parent) that it is providing to another Person pursuant to this AgreementSection 5.3(c)(vi) at substantially the same time it provides such information to such other Person.
(jvii) For purposes of this Agreement:
Appears in 1 contract
Samples: Merger Agreement (Washington Group International Inc)
Company Acquisition Proposals. (ai) Notwithstanding anything Subject to the contrary contained in this Agreement but subject to Section 7.5(f), 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 April 16, 2014 (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 (acting under the direction of the Company Board retained by it or any committee thereofof 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 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 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 simultaneously with providing it to such Third Party, and (ii) engage in and maintain discussions or negotiations inquiries with respect to any inquiryto, 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 terms or proposals provided (including financing commitments) 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 terms proposed orally or supplementally).
(b) Except as expressly permitted by this Section 7.5, from and after the No Shop Period Start Date until the Effective 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 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 intoapprove 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, (iiiD) 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 7.5) providing for or relating to a any 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 (vi) resolve, agree, approve, recommend or propose publicly propose or agree to do any of the foregoingforegoing relating to any Company Acquisition Proposal.
(cii) Notwithstanding anything to the contrary Nothing contained in this Section 7.5, at any time following the No Shop Period Start Date and prior to the Offer Closing (and in no event after that time), Agreement shall prevent the Company may, directly or indirectly through any Representative, in response to an unsolicited bona fide written Company Acquisition Proposal by a Third Party made after the date Company’s Board from complying with its disclosure obligations under Sections 14d-9 and 14e-2 of this Agreement (that did not result from a breach of this Section 7.5the Exchange Act; 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) furnish non-public information to such Third Party (and such Third Party’s Representatives) making a Company Acquisition Proposal (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 Section 7.4(c).
(iii) Notwithstanding the limitations set forth in Section 5.3(c)(i), until the earlier of the receipt of the Company Stockholder Approval and the 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 Company Acquisition Proposal, if, and only if, prior to so furnishing such information, the Company receives from the Third Party third party an executed Acceptable Confidentiality Agreementconfidentiality 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 (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 simultaneously with providing it to such Third Party), and (iiy) engage in discussions or negotiations with such Third Party (and such Third Party’s Representatives) the third party with respect to the Company Acquisition Proposal.
(iv) Notwithstanding anything in this Agreement to the contrary, nothing contained in this Agreement shall prevent the Company or the Company’s Board from, at any time prior to, but not after, the time this Agreement is adopted by the Company’s Stockholders at the Company Stockholder Meeting, recommending 48 such an unsolicited bona fide written Company Acquisition Proposal ifto the Company’s Stockholders, in if and only to the case of each of clauses extent that, (i) and (ii): (xA) the Board of the Company Board 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 inother than immaterial changes, a Superior Proposal, and (y) that was the subject of the Company Board determines in good faith, after consultation with outside legal counsel, that failure Superior Proposal Notice) constitutes a Company Superior Proposal and Parent shall have received written notice (the “Company Superior Proposal Notice”) of the Company’s intention to take such action would be inconsistent with the directors’ duties under applicable Law; provided, however, that in each of the foregoing clauses at least four (i4) 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 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 of any Company Acquisition Proposal or any request for nonpublic information relating to the Company or any Company Subsidiary by any Third 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 any Company Acquisition Proposals, Inquiries, proposals or offers, including a copy thereof if in writing and any related documentation or correspondence), and (ii) it enters into any discussions or negotiations concerning any Company Acquisition Proposal or provides nonpublic information or data to any Person in accordance with this Section 7.5(d), and, in each case, the Company shall keep Parent informed of the status and terms of any such Company Acquisition Proposals, Inquiries, proposals, offers, discussions or negotiations on a current basis (including any change to the financial terms, conditions or other material terms 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 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 Parent or Merger Sub, the Company 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 in the Schedule 14D-9 and, if Company Stockholder Approval is required under the MGCL in order to consummate the Merger other than pursuant to Section 3-106 of the MGCL, in the Proxy Statement, (iv) fail to publicly recommend against any Company Acquisition Proposal 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 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 7.5). Notwithstanding anything to the contrary set forth in this Agreement, at any time business days prior to the Offer Closing, the Company Board shall be permitted to effect an Adverse Recommendation Change if the Company Board (x) has received a bona fide Company Acquisition Proposal (that did not result from a breach of this Section 7.5) that, in the good faith determination of the Company 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, that in the event of any such termination, the Company complies with its obligation to pay the Termination Payment pursuant to Section 9.3(a)(iii)).
(f) The Company Board shall not be entitled to effect an Adverse Recommendation Change pursuant to Section 7.5(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 taking of such action (it being understood that such material terms shall include the identity of the Third Party), (ii) during the five (5) Business Day period following Parent’s and Merger Sub’s receipt of the Notice of Superior Proposal, by the Company shall, and shall cause has complied with 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 end of the five (5) Business Day period, the Company Board shall have determined in good 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 or otherwise, that the Superior Proposal giving rise to the Notice of Superior Proposal continues to constitute a Superior Proposal and, after consultation with outside legal counsel, that failure to take such action would be inconsistent with the directors’ duties other obligations under applicable Law. Any amendment to the financial terms or any other material amendment of such Superior Proposal shall require a new Notice of Superior Proposal, and the Company shall be required to comply again with the requirements of this Section 7.5(f5.3(c)(iv); provided, however, that references the Company’s Board continues to believe, after taking into account any modifications to the five terms of the transaction contemplated by this Agreement that are proposed by Parent after its receipt of the Company 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 clause (5) Business Day period above iv), the Company shall then be deemed entitled to be references terminate this Agreement pursuant to a three (3) Business Day periodSection 7.3(b).
(gv) Nothing contained in this Section 7.5 or elsewhere in this Agreement shall prohibit the The Company or the Company 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 has determined, after consultation with outside legal counsel, agrees that the failure to do so would be inconsistent with applicable Law; provided, however, that any disclosure 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 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, it will immediately cease and cause to be terminated any existing discussionsactivities, discussions or negotiations or communications with any Person (other than the parties hereto) conducted prior to the No Shop Period Start Date heretofore with respect to any Company Acquisition Proposal Proposal. The Company agrees that it will take the necessary steps to promptly inform the officers, directors, employees and shall request Representatives of the prompt return or destruction Company and its subsidiaries of all confidential information previously furnished the obligations undertaken in connection therewith. this Section 5.3(c).
(vi) From and after the No Shop Period Start Datedate of this Agreement, the Company shall promptly orally notify Parent of any request for information or any inquiries, proposals or offers relating to a Company Acquisition Proposal indicating, in connection with such notice, the name of such Person making such request, inquiry, proposal or offer and the Company Subsidiaries material terms and their respective officers, directors and employees shall, conditions of any proposals or offers and the Company shall instruct provide to Parent written notice of any such inquiry, proposal or offer within forty-eight (48) hours of such event and cause its and the copies of any written or electronic correspondence to or from any Person making a 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 AgreementAcquisition Proposal. The Company shall not submit to keep Parent informed orally on a current basis of the vote status of its stockholders any Company Acquisition Proposal other than the Merger prior Proposal, including with respect to the termination status and terms of any such proposal or offer and whether any such proposal or offer has been withdrawn or rejected and the Company shall provide to Parent written notice of any such developments (including copies of any written proposals or requests for information) within forty-eight (48) hours. The Company also agrees to provide any information to Parent (not previously provided to Parent) that it is providing to another Person pursuant to this AgreementSection 5.3(c)(vi) at substantially the same time it provides such information to such other Person.
(jvii) For purposes of this Agreement:
Appears in 1 contract
Samples: Merger Agreement (Urs Corp /New/)
Company Acquisition Proposals. (a) Notwithstanding anything to the contrary contained in this Agreement but subject to Section 7.5(f)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 April 16, 2014 (the “No Shop Period Start Date”), the Company and its Representatives that it shall have the right (acting under the direction of the Company Board cause each Representative retained by it or any committee thereof) Company Subsidiary not to, directly or indirectly, : (ia) initiate, solicitsolicit or knowingly encourage any inquiries with respect to, induceor the making of, cause, encourage and facilitate any a Company Acquisition ProposalsProposal, including by way of providing non-public information pursuant to (but only pursuant tob) one engage in any negotiations concerning, or more Acceptable Confidentiality Agreements; provided, however, that provide any non-public information concerning the or data to any person relating to a Company Acquisition Proposal or any inquiries or the Company Subsidiaries making of any proposal 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 simultaneously with providing it to such Third Party, and (ii) engage in and maintain discussions or negotiations with respect to any 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, including providing access (c) approve or recommend or propose publicly to approve 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 Daterecommend, 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 terms or proposals provided (including financing commitments) 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 terms proposed orally or supplementally).
(b) Except as expressly permitted by this Section 7.5, from and after the No Shop Period Start Date until the Effective 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 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 7.5) providing for or relating to a any 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 (vi) resolve, agree, approve, recommend or propose publicly propose or agree to do any of the foregoing.
(c) Notwithstanding anything to the contrary in this Section 7.5, at any time following the No Shop Period Start Date and prior to the 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 made after the date of this Agreement (that did not result from a breach of this Section 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) furnish non-public information to such Third Party (and such Third Party’s Representatives) making a Company Acquisition Proposal (provided, however, that (A) prior to so furnishing such 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 or Merger Sub prior to or 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 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 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 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 of any Company Acquisition Proposal or any request for nonpublic information relating to the Company or any Company Subsidiary by any Third 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 any Company Acquisition Proposals, Inquiries, proposals or offers, including a copy thereof if in writing and any related documentation or correspondence), and (ii) it enters into any discussions or negotiations concerning any Company Acquisition Proposal or provides nonpublic information or data to any Person in accordance with this Section 7.5(d), and, in each case, the Company shall keep Parent informed of the status and terms of any such Company Acquisition Proposals, Inquiries, proposals, offers, discussions or negotiations on a current basis (including any change to the financial terms, conditions or other material terms 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 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 Parent or Merger Sub, the Company 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 in the Schedule 14D-9 and, if Company Stockholder Approval is required under the MGCL in order to consummate the Merger other than pursuant to Section 3-106 of the MGCL, in the Proxy Statement, (iv) fail to publicly recommend against any Company Acquisition Proposal 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 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 7.5). Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to the Offer Closing, the Company Board shall be permitted to effect an Adverse Recommendation Change if the Company Board (x) has received a bona fide Company Acquisition Proposal (that did not result from a breach of this Section 7.5) that, in the good faith determination of the Company 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, that in the event of any such termination, the Company complies with its obligation to pay the Termination Payment pursuant to Section 9.3(a)(iii)).
(f) Section 5.11.2 The Company Board shall not be entitled to effect an Adverse Recommendation Change pursuant to Section 7.5(e) unless (i) the Company has provided a written notice (a “Notice of Superior Proposal”) to Parent and Merger Sub agrees 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 five (5) 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 end of the five (5) Business Day period, the Company Board shall have determined in good 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 or otherwise, that the Superior Proposal giving rise to the Notice of Superior Proposal continues to constitute a Superior Proposal and, after consultation with outside legal counsel, that failure to take such action would be inconsistent with the directors’ duties under applicable Law. Any amendment to the financial terms or any other material amendment of such Superior Proposal shall require a new Notice of Superior Proposal, and the Company shall be required to comply again with the requirements of this Section 7.5(f); provided, however, that references to the five (5) Business Day period above shall then be deemed to be references to a three (3) Business Day period.
(g) Nothing contained in this Section 7.5 or elsewhere in this Agreement shall prohibit the Company or the Company 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 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 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 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, will immediately cease and cause to be terminated any existing discussionsactivities, discussions or negotiations or communications with any Person person (other than the parties hereto) conducted prior to the No Shop Period Start Date heretofore with respect to any Company Acquisition Proposal Proposal. The Company agrees that it will take the necessary steps to promptly inform the Representatives of the Company and shall request its subsidiaries of the prompt return or destruction of all confidential information previously furnished obligations undertaken in connection therewiththis Section 5.11.2. From Between the date hereof and after the No Shop Period Start Closing 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 promptly notify Parent of similar effect to which receipt by the Company or its majority stockholder of any contact with respect to a Company Acquisition Proposal. Section 5.11.3 Any breach of this Section 5.11 by any Representative of the Company Subsidiaries is or its subsidiaries shall be deemed to be a party or breach 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 by 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 AgreementCompany.
(j) For purposes of this Agreement:
Appears in 1 contract
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 7.5(f)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 April 16, 2014 (the “No Shop Period Start Date”), the Company and its Representatives Subsidiaries. The Company shall have the right (acting under the direction not terminate, waive, amend, release or modify in any respect any material provision of the any confidentiality agreement to which any Acquired Company Board or any committee thereof) to, directly or indirectly, (i) initiate, solicit, induce, cause, encourage and facilitate of its Affiliates is a party with respect to any Company Acquisition Proposals, including by way of providing 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 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 simultaneously with providing it to such Third Party, and (ii) engage in and maintain discussions or negotiations a party with respect to any inquiryCompany Acquisition Proposal or any proposal, proposal inquiry or offer that constitutes or may would reasonably be expected to lead to a Company Acquisition Proposal if the Company Board determines in 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 Company under applicable Law.
(b) 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 permitted under this Agreement (including Section 5.3(c), Section 5.3(e) and Section 5.3(g)), the Company shall not, and shall cause its Representatives and other Acquired Companies not to, directly or otherwise cooperate with indirectly, (i) solicit, initiate or assist knowingly encourage or participate in, knowingly induce or facilitate the making, submission or announcement of any such inquiries, proposalsproposals or offers constituting or that would reasonably be expected to lead to a Company Acquisition Proposal, offers(ii) 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 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 the making of recommend any Company Acquisition Proposal, including providing access to (v) make or otherwise making available non-public information authorize any statement, recommendation or solicitation 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 support of any Company Acquisition Proposal made in writing and any other written terms or proposals provided (including financing commitments) 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 terms proposed orally proposal, inquiry or supplementally).
(b) Except as expressly permitted by this Section 7.5, from and after the No Shop Period Start Date until the Effective 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 would reasonably be expected to lead to, to a Company Acquisition Proposal, including from any Go Shop Bidder or (an “Inquiry”), (iivi) enter intointo any letter of intent or agreement in principle or any Contract providing for, continue, conduct, engage, maintain relating to 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 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 (vi) resolve, agree, approve, recommend or publicly propose or agree to do any of the foregoingProposal.
(c) Notwithstanding anything to the contrary in this Agreement (including this Section 7.55.3), if at any time following the No Shop Period Start Date and prior to the Offer Closing (and in no event after that time), obtaining the Company mayStockholder Approval, directly or indirectly through any Representative, in response to an unsolicited (x)(i) the Company receives a bona fide written Company Acquisition Proposal by a Third Party made after the date of this Agreement (that did not arise or result from a material breach of this Section 7.5; provided that any bona fide written 5.3, (i) the Company Acquisition Proposal received from a Go Shop Bidder and not actively solicited following may contact the No Shop Period Start Date shall not be deemed a solicitation of a Person who has made such Company Acquisition Proposal in breach order to clarify the terms of this Section 7.5) (i) furnish non-public information to such Third Party (and such Third Party’s Representatives) making a Company Acquisition Proposal (provided, however, so that (A) prior to so furnishing such information, the Company receives from the Third Party an executed Acceptable Confidentiality AgreementBoard (or any committee thereof) may inform itself about such Company Acquisition Proposal, 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 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) 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 inconstitute or lead to, a Company Superior ProposalProposal 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 determines has not breached this Section 5.3 in good faithany material respect with respect to such Company Acquisition Proposal, after consultation the Company may (A) make available information (including non-public information) with outside legal counsel, that failure respect to take such action would be inconsistent with the directors’ duties under applicable Law; provided, however, that in each of Acquired Companies to the foregoing clauses (i) and (ii), Person making such Company Acquisition Proposal was not solicited pursuant to a Company Acceptable Confidentiality Agreement; and (B) participate in violation of Section 7.5.
(d) In addition to the other obligations of the discussions or negotiations with such Person making such Company set forth in this Section 7.5, after the No Shop Period Start Date, the 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 of any Company Acquisition Proposal or any request for nonpublic inquiry, proposal or offer that would reasonably be expected to lead to a Company Acquisition Proposal, which notice will include the identity of the 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, any information relating concerning the Company, the Company Subsidiaries or their businesses, assets or properties provided or made available to such other person (or its representatives) by the Company after receipt by the Company of the Company Acquisition Proposal that was not previously provided or made available to Parent (such information and documentation, the “Company Acquisition Proposal Information”). 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 Company or any Company Subsidiary by shall enter into any Third Party, or any Inquiry Contract that would prohibit them from any Person seeking to have discussions or negotiations with providing the Company relating to a possible Company Acquisition Proposal Information to Parent or its Representatives.
(such notice shall indicate d) From the identity date of this Agreement until the earlier of the Third Party making the Company Acquisition Proposal, request or Inquiry Effective Time and the material terms and conditions termination of any Company Acquisition Proposals, Inquiries, proposals or offers, including a copy thereof if in writing and any related documentation or correspondence), and (ii) it enters into any discussions or negotiations concerning any Company Acquisition Proposal or provides nonpublic information or data to any Person this Agreement in accordance with this Section 7.5(d)7.1, and, in each case, the Company shall keep Parent informed of the status and terms of any such Company Acquisition Proposals, Inquiries, proposals, offers, discussions or negotiations on a current basis (including any change to the financial terms, conditions or other material terms 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 except as otherwise permitted by this Agreement (including Section 7.5(e5.3(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 (or publicly propose to withholdmodify, withdraw, modify or qualify), in each case in a manner adverse to Parent or Merger SubParent, the Company Recommendation, (ii) approveadopt, adoptauthorize, recommend, endorse or recommend otherwise declare advisable (or publicly propose to approve, adopt, endorse authorize, recommend or recommendendorse) 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 in the Schedule 14D-9 andProxy Statement/Prospectus, if Company Stockholder Approval is required under the MGCL (v) take any action or make any recommendation or public statement in order to consummate the Merger connection with a tender offer or exchange offer other than pursuant an unequivocal recommendation against such offer; or (vi) resolve or agree to Section 3-106 of the MGCL, in the Proxy Statement, (iv) fail to publicly recommend against any Company Acquisition Proposal 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 7.5(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 or permit the Company to enter into, any Alternative Acquisition Agreement (other than an Acceptable Confidentiality Agreement entered into in accordance with this Section 7.5). Notwithstanding anything to the contrary set forth in this AgreementAgreement (including this Section 5.3), at any time if prior to the Offer Closing, obtaining the Company Board shall be permitted to effect an Adverse Recommendation Change if Stockholder Approval, (i) the Company Board (x) has received receives a bona fide written Company Acquisition Proposal (that did not arise or result from a material breach of this Section 7.55.3, (ii) that, the Company Board determines in the good faith determination of the Company Board, (after consultation with the Company’s outside legal counsel and outside 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 ) that (x) such Company Acquisition Proposal is not withdrawnconstitutes a Company Superior Proposal and, and in any event, (y) determines in good faith, after consultation with outside legal counsel, that the failure to take such action make a Company Adverse Recommendation Change would reasonably be expected to be inconsistent with the directors’ fiduciary 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, Company and the Company Board shall have complied with all of its obligations set forth in the case of a terminationthis Section 5.3 (including Section 5.3(f)) then, 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, that in the event of any such termination, the make a Company complies with its obligation to pay the Termination Payment pursuant to Section 9.3(a)(iii))Adverse Recommendation Change.
(f) The Company Board shall not be entitled to effect an Adverse Recommendation Change pursuant to take any action set forth in Section 7.5(e5.3(e) unless the Company has (i) the Company has provided a written notice to Parent (a “Notice of Company Superior Proposal”) to informing Parent and Merger Sub that the Company intends 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 take effect such action, specifying in reasonable detail the reasons therefor and describing the material terms and conditions of, and attaching a complete copy of, the Company 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)other Company Acquisition Proposal Information, (ii) during for the five four (54) Business Day period following Parent’s and Merger Sub’s receipt of the Notice of Company Superior ProposalProposal (the “Company Superior Proposal Notice Period”), the Company shall, and Board shall cause its Representatives to, negotiate have negotiated in good faith with Parent and Merger Sub considered in good faith (any counteroffers or proposals, including to the extent Parent and Merger Sub desire to negotiate) to make such adjustments in amend the terms and conditions of this Agreement so that such Superior Proposal ceases (to constitute a Superior Proposalthe 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), 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 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 may effect a Company Adverse Recommendation Change, in response to a Company Intervening Event only if (i) the Company Board determines in good faith (after consultation with the Company’s outside counsel) that the failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, (ii) the Company has notified Parent in writing that it intends to effect such a Company Adverse Recommendation Change pursuant to this Section 5.3(g), which notice shall include a reasonably detailed description of the facts and circumstances giving rise to such Company Intervening Event, (iii) for a period of four (4) Business Days following the notice delivered pursuant to clause (ii) of this Section 5.3(g), the Company Board shall have negotiated in good faith with Parent and shall have considered in good faith any proposals to amend the terms and conditions of this Agreement (to the extent Parent wishes to do so) so that the failure to take such action would no longer reasonably be expected to be inconsistent with the Company Board’s fiduciary duties under applicable Law; and (iv) no earlier than the end of the five such four (54) Business Day Day-period, the Company Board shall have determined in good faith, faith (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 or otherwise, Parent) that the Superior Proposal giving rise to the Notice of Superior Proposal continues to constitute a Superior Proposal and, after consultation with outside legal counsel, that failure to take such action would still reasonably be expected to be inconsistent with the directors’ its fiduciary duties under applicable Law. Any amendment to the financial terms or any other material amendment of such Superior Proposal shall require a new Notice of Superior Proposal, and the Company shall be required to comply again with the requirements of this Section 7.5(f); provided, however, that references to the five (5) Business Day period above shall then be deemed to be references to a three (3) Business Day period.
(gh) Nothing contained in this Section 7.5 or elsewhere in this Agreement 5.3 shall prohibit the Company or the Company Board, directly or indirectly through its Representatives, Board 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 has determined, determines in good faith (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 (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 Offer and the Merger shall be deemed to be an a Company Adverse Recommendation Change; and provided further that the taking of any such position or making of any such disclosure contemplated by this Section 7.5(g) shall not affect the Company’s and Change unless the Company Board’s duties under this Section 7.5.
(h) At the No Shop Period Start Date, Board expressly reaffirms the Company Recommendation 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 rejects any Company Acquisition Proposal and shall request the prompt return or destruction of all confidential information previously furnished in connection therewith. From and within ten (10) Business Days 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 any 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 beneficiarydisclosure.
(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 1 contract
Company Acquisition Proposals. (a) Notwithstanding anything to the contrary contained in this Agreement but Except as permitted by, and subject to to, Section 7.5(f7.3(b), during the period (the “Go Shop Period”Section 7.3(d) beginning on and Section 7.3(f), from the date of this Agreement and continuing until 11:59 p.m. (New York City time) on April 16, 2014 (the “No Shop Period Start Date”), the Company and its Representatives shall have the right (acting under the direction earlier of the Company Board or any committee thereof) toREIT Merger Effective Time and the date, directly or indirectlyif any, (i) initiate, solicit, induce, cause, encourage and facilitate any Company Acquisition Proposals, including by way of providing non-public information on which this Agreement is terminated pursuant to (but only pursuant to) one or more Acceptable Confidentiality Agreements; providedSection 9.1, howeverCompany, that any non-public information concerning the Company or OP and DownREIT shall not, and shall cause 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 simultaneously with providing it to such Third Partyto, and shall not authorize (ii) engage in and maintain discussions shall use commercially reasonable efforts to cause the Representatives of Company, Company OP or negotiations with respect to any 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 terms or proposals provided (including financing commitments) 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 terms proposed orally or supplementally).
(b) Except as expressly permitted by this Section 7.5, from and after the No Shop Period Start Date until the Effective 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, seek or knowingly encourage or facilitate any inquiry, discussion, request, proposal or offer or request that constituteswith respect to, or could the announcement, making or completion of, any Company Acquisition Proposal, or any inquiry, discussion, request, 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 negotiations or 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 otherwise cooperate in any way with, or facilitate in any way any effort by, any Third Party (including any Go Shop Bidder) in connection data with respect to any Company Acquisition Proposal or InquiryProposal, (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, joint venture agreement, partnership agreement or other similar definitive agreement (other than an Acceptable Confidentiality Agreement entered into agreement, in accordance with this Section 7.5) providing for or relating each case, related to a Company Acquisition Proposal with any Third Party (including any Go Shop Bidderother than a Company Acceptable Confidentiality Agreement pursuant to Section 7.3(b)) or requiring or having the effect of requiring Company to abandon, terminate or breach its obligations hereunder or fail to consummate the Mergers (an each, a “Company Alternative Acquisition Agreement”), or (iv) amend agree to 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 (vi) resolve, agree, approve, recommend or propose publicly propose or agree to do any of the foregoing. Subject to the other provisions of this Section 7.3, from and after the date of this Agreement, Company agrees that it shall, and shall cause each of the Company Subsidiaries and shall direct its and their respective Representatives to, immediately cease any solicitations, discussions, negotiations or communications with any Person that may be ongoing with respect to any Company Acquisition Proposal.
(cb) Notwithstanding the foregoing or anything to the contrary in this Agreement, but subject to Company’s compliance with this Section 7.57.3 (other than Section 7.3(a)), at any time following the No Shop Period Start Date and if, prior to the Offer Closing (and in no event after that time), obtaining the Company mayStockholder Approval, directly (i) Company or indirectly through any Representative, in response to Company Subsidiary receives an unsolicited bona fide written Company Acquisition Proposal made by a Third Party made third party after the date of this Agreement that the Company Board believes in good faith to be bona fide, (that did ii) such Company Acquisition Proposal was not the result from of a breach violation of this Section 7.5; 7.3 (provided that the Parties agree that Company and the Company Board may inquire with a third party making any bona fide written such Company Acquisition Proposal received from a Go Shop Bidder to request clarification of the terms and not actively solicited following the No Shop Period Start Date shall not be deemed a solicitation of a conditions thereof so as to determine whether such Company Acquisition Proposal in breach of this Section 7.5) (i) furnish non-public information constitutes, or could reasonably be expected to such Third Party (and such Third Party’s Representatives) making lead to, a Company Acquisition Proposal (provided, however, that (A) prior to so furnishing such 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 or Merger Sub prior to or simultaneously with providing it to such Third PartySuperior Proposal), 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): (xiii) the Company Board determines in good faith, faith (after consultation with outside legal counsel and the Company’s financial advisors, advisor) that such Company Acquisition Proposal constitutes, or is could reasonably likely be expected to result inlead to, a Company Superior Proposal, then Company may (and may authorize the Company Subsidiaries and their Representatives to) (x) furnish non-public information with respect to Company, Company OP and the Company Subsidiaries to the Person making such Company Acquisition Proposal (and its Representatives) pursuant to a Company Acceptable Confidentiality Agreement; provided that any non-public information provided to any Person given such access shall have previously been provided to Parent or shall be provided to Parent prior to or as promptly as practicable after it is provided to such Person (but in any event within 48 hours thereafter), and (y) engage in discussions and participate in negotiations with the Person making such Company Acquisition Proposal (and such Person’s Representatives) regarding such Company Acquisition Proposal in any manner that the Company Board determines deems appropriate in good faithits sole and absolute discretion.
(c) Except as provided in Section 7.3(d), 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 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 REIT Merger or any of the other transactions contemplated hereby, (B) shall not adopt, approve, or publicly recommend, endorse or otherwise declare advisable the adoption of any Company Acquisition Proposal or (C) shall not fail to include in the Proxy Statement a recommendation that the Company’s stockholders provide the Company Stockholder Approval (each such action set forth in this Section 7.3(c)(i) being referred to herein as a “Company Adverse Recommendation Change”), and (ii) shall not cause or permit Company, Company OP or any of the Company Subsidiaries to enter into any Company Alternative Acquisition Agreement relating to any Company Acquisition Proposal (other than a Company Acceptable Confidentiality Agreement pursuant to Section 7.3(b)).
(d) Notwithstanding anything in this Agreement to the contrary, at any time prior to obtaining the Company Stockholder Approval, the Company Board may (i) make a Company Adverse Recommendation Change (and may thereafter and following the termination of this Agreement pursuant to Section 9.1 cause or permit Company, Company OP or any of the Company Subsidiaries to enter into any Company Alternative Acquisition Agreement relating to an unsolicited written bona fide Company Acquisition Proposal), if (A) such Company Acquisition Proposal was not solicited in the result of a violation of Section 7.5.
(d) In addition to the other obligations of the Company set forth in this Section 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 of any Company Acquisition Proposal or any request for nonpublic information relating to the Company or any Company Subsidiary by any Third 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 any Company Acquisition Proposals, Inquiries, proposals or offers, including a copy thereof if in writing and any related documentation or correspondence), and (ii) it enters into any discussions or negotiations concerning any Company Acquisition Proposal or provides nonpublic information or data to any Person in accordance with this Section 7.5(d), and, in each case, the Company shall keep Parent informed of the status and terms of any such Company Acquisition Proposals, Inquiries, proposals, offers, discussions or negotiations on a current basis (including any change to the financial terms, conditions or other material terms 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 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 Parent or Merger Sub, the Company 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 in the Schedule 14D-9 and, if Company Stockholder Approval is required under the MGCL in order to consummate the Merger other than pursuant to Section 3-106 of the MGCL, in the Proxy Statement, (iv) fail to publicly recommend against any Company Acquisition Proposal 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 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 7.5). Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to the Offer Closing, the Company Board shall be permitted to effect an Adverse Recommendation Change if the Company Board (x) has received a bona fide Company Acquisition Proposal (that did not result from a breach of this Section 7.5) that, in the good faith determination of the Company 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), 7.3 and such Company Acquisition Proposal is not withdrawn, and (yB) determines the Company Board has determined in good faith, faith (after consultation with outside legal counsel and the Company’s financial advisors and taking into account all adjustments to the terms of this Agreement that may be offered by Parent pursuant to subsection (y) below) that such Company Acquisition Proposal constitutes a Company Superior Proposal and (after consultation with outside counsel, ) that the failure to take such action make a Company Adverse Recommendation Change would reasonably be expected to be inconsistent with the directors’ duties of the members of the Company Board under applicable Law, ; and in such case the Company may (i) terminate this Agreement pursuant to Section 9.1(c)(ii), (ii) make an a Company Adverse Recommendation Change and/or (iii) approve or recommend such Superior Proposal to the Company’s stockholders andif, in the case absence of a terminationCompany Acquisition Proposal, (A) a Company Intervening Event has occurred, and (B) the Company may immediately prior Board determines in good faith (after consultation with outside counsel and taking into account all adjustments to or concurrently with such termination the terms of this Agreement, enter into an Alternative Acquisition Agreement with respect to such Superior Proposal (provided, that in the event of any such termination, the Company complies with its obligation to pay the Termination Payment may be offered by Parent pursuant to Section 9.3(a)(iii)).
subsection (fy) The below) that the failure to make such Company Board shall not be entitled to effect an Adverse Recommendation Change pursuant would reasonably be expected to Section 7.5(e) unless be inconsistent with the duties of the members of the Company Board under applicable Law; so long as, in each case ((i) the and (ii)), (x) four Business Days prior to making any such Company Adverse Recommendation Change, Company has provided a written notice (a “Notice of Superior Proposal”) to notified Parent and Merger Sub in writing that the Company Board intends to take make a Company Adverse Recommendation Change in connection with a Company Superior Proposal or a Company Intervening Event (each, a “Company Change Notice”) and which Company Change Notice shall specify, in a case where such actionCompany Change Notice relates to a Company Superior Proposal, specifying in reasonable detail the reasons therefor identity of the party who made such Company Superior Proposal and describing all of the material terms and conditions of, and attaching a complete copy of, the of such Company Superior Proposal and attach a copy of the terms most current version of any and all agreements the related Company Alternative Acquisition Agreement, and, in connection therewitha case where such Company Change Notice relates to a Company Intervening Event, including any financing arrangements, that is the basis a description of such action Company Intervening Event, and (it being understood that such material terms shall include the identity of the Third Party), (iiy) during the five (5) four 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 Proposalto Parent, the Company shallshall have offered to negotiate with (and, if accepted, negotiated, and shall cause caused its Representatives toto negotiate, negotiate with Parent and Merger Sub 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 ProposalProposal (provided that any amendment, supplement or modification to any Company Acquisition Proposal shall be deemed a new Company Acquisition Proposal and (iii) following the end of the five (5) Business Day period, the Company Board shall have determined in good faith, after consultation with outside legal counsel and financial advisors, taking into account any changes to may not terminate this Agreement proposed in writing by Parent and Merger Sub in response pursuant to the Notice Section 9.1 or make a Company Adverse Recommendation Change pursuant to clause (i) of Superior Proposal or otherwise, that the Superior Proposal giving rise to the Notice of Superior Proposal continues to constitute a Superior Proposal and, after consultation with outside legal counsel, that failure to take such action would be inconsistent with the directors’ duties under applicable Law. Any amendment to the financial terms or any other material amendment of such Superior Proposal shall require a new Notice of Superior Proposal, and the this Section 7.3(d) unless Company shall be required to comply has again complied with the requirements of this Section 7.5(f7.3(d) 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 7.3(d)(y)(1) with respect to any revised Company Acquisition Proposal shall be two Business Days, instead of four Business Days); provided), howeverand (2) in circumstances not involving a Company Acquisition Proposal, that references to the five (5) Business Day period above shall then as may be deemed to be references to a three (3) Business Day periodproposed by Parent.
(ge) In the event that Company, Company OP, any other Company Subsidiary or any of their respective Representatives receives from a Person or group of related Persons a Company Acquisition Proposal or any request for nonpublic information regarding Company, Company OP or any other Company Subsidiary from a third party that informs Company that it is making or intends to make a Company Acquisition Proposal, Company shall promptly (but in no event more than 48 hours following receipt of such Company Acquisition Proposal or such request for information) notify Parent of the receipt of such Company Acquisition Proposal or such request for information. Such notification shall include, to the extent then known, the identity of the parties and a copy of such Company Acquisition Proposal, which may be redacted to the extent necessary to protect confidential information of the business or operations of the Person making such Company Acquisition Proposal, or, if not made in writing, a written description of the material terms thereof, provided that Company shall not be required to provide any such information to Parent to the extent that such disclosure is prohibited by the terms of any confidentiality agreement between Company and any such Person entered into prior to the date hereof, provided further that Company shall not be entitled to furnish any additional nonpublic information to or enter into any discussions or negotiations with any such Person submitting any such Company Acquisition Proposal as otherwise permitted by Section 7.3(b) (other than to request a waiver of any confidentiality restrictions limiting the provision of such information to Parent) prior to the provision of such information to Parent. Company shall keep Parent reasonably apprised, on a reasonably current basis, of any material developments with respect to discussions and negotiations concerning any such Company Acquisition Proposal, including by providing a copy of all amendments to such Company Acquisition Proposal and drafts of proposed agreements in respect of such Company Acquisition Proposal. None of Company, Company OP, or any other Company Subsidiary shall, after the date of this Agreement, enter into any confidentiality or similar agreement that would prohibit it from providing such information to Parent.
(f) Nothing contained in this Section 7.5 or elsewhere in this Agreement 7.3 shall prohibit the Company or the Company Board, directly or indirectly Board 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 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 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 similar communication of the type taking and disclosing to its stockholders a position contemplated by Rule 14d-9(f14e-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 pending disclosure of its position thereunder, or (ii) making any disclosure to the stockholders of Company if, in the good faith judgment of the Company Board (after consultation with outside counsel), failure to so disclose would reasonably be expected to be inconsistent with the duties of the members of the Company Board under applicable Law (for the avoidance of doubt, it being agreed that the issuance by the Company or the Company Board of a “stop, look and listen” statement pending disclosure of its position, as contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act, an express rejection shall not constitute a Company Adverse Recommendation Change); provided, however, that (A) neither Company nor the Company Board shall be permitted to recommend that the stockholders of Company tender any applicable securities in connection with any tender offer or exchange offer that is a Company Acquisition Proposal or an express reaffirmation otherwise effect a Company Adverse Recommendation Change with respect thereto, except as permitted by Section 7.3(d) and (B) any such disclosure that addresses the approval, recommendation or declaration of advisability by the Company Recommendation Board with respect to the Company’s stockholders in favor of the Offer and the Merger this Agreement or a Company Acquisition Proposal shall be deemed to be an a Company Adverse Recommendation Change unless the Company Board, in connection with such communication, publicly states that its recommendation with respect to this Agreement and the transactions contemplated hereby has not changed or such disclosure refers to the prior recommendation of the Company Board, without disclosing any Company Adverse Recommendation Change; and provided further that the taking of any such position or making of any such disclosure 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.
(jg) For purposes of this Agreement:
Appears in 1 contract
Samples: Merger Agreement (Education Realty Operating Partnership L P)
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 7.5(f)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 April 16, 2014 (the “No Shop Period Start Date”), the Company and its Representatives Subsidiaries. The Company shall have the right (acting under the direction not terminate, waive, amend, release or modify in any respect any material provision of the any confidentiality agreement to which any Acquired Company Board or any committee thereof) to, directly or indirectly, (i) initiate, solicit, induce, cause, encourage and facilitate of its Affiliates is a party with respect to any Company Acquisition Proposals, including by way of providing 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 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 simultaneously with providing it to such Third Party, and (ii) engage in and maintain discussions or negotiations a party with respect to any inquiryCompany Acquisition Proposal or any proposal, proposal inquiry or offer that constitutes or may would reasonably be expected to lead to a Company Acquisition Proposal if the Company Board determines in 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 Company under applicable Law.
(b) 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 permitted under this Agreement (including Section 5.3(c), Section 5.3(e) and Section 5.3(g)), the Company shall not, and shall cause its Representatives and other Acquired Companies not to, directly or otherwise cooperate with indirectly, (i) solicit, initiate or assist knowingly encourage or participate in, knowingly induce or facilitate the making, submission or announcement of any such inquiries, proposalsproposals or offers constituting or that would reasonably be expected to lead to a Company Acquisition Proposal, offers(ii) 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 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 the making of recommend any Company Acquisition Proposal, including providing access to (v) make or otherwise making available non-public information authorize any statement, recommendation or solicitation 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 support of any Company Acquisition Proposal made in writing and any other written terms or proposals provided (including financing commitments) 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 terms proposed orally proposal, inquiry or supplementally).
(b) Except as expressly permitted by this Section 7.5, from and after the No Shop Period Start Date until the Effective 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 would reasonably be expected to lead to, to a Company Acquisition Proposal, including from any Go Shop Bidder or (an “Inquiry”), (iivi) enter intointo any letter of intent or agreement in principle or any Contract providing for, continue, conduct, engage, maintain relating to 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 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 (vi) resolve, agree, approve, recommend or publicly propose or agree to do any of the foregoingProposal.
(c) Notwithstanding anything to the contrary in this Agreement (including this Section 7.55.3), if at any time following the No Shop Period Start Date and prior to the Offer Closing (and in no event after that time), obtaining the Company mayStockholder Approval, directly or indirectly through any Representative, in response to an unsolicited (x)(i) the Company receives a bona fide written Company Acquisition Proposal by a Third Party made after the date of this Agreement (that did not arise or result from a material breach of this Section 7.5; provided that any bona fide written 5.3, (i) the Company Acquisition Proposal received from a Go Shop Bidder and not actively solicited following may contact the No Shop Period Start Date shall not be deemed a solicitation of a Person who has made such Company Acquisition Proposal in breach order to clarify the terms of this Section 7.5) (i) furnish non-public information to such Third Party (and such Third Party’s Representatives) making a Company Acquisition Proposal (provided, however, so that (A) prior to so furnishing such information, the Company receives from the Third Party an executed Acceptable Confidentiality AgreementBoard (or any committee thereof) may inform itself about such Company Acquisition Proposal, 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 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) 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 inconstitute or lead to, a Company Superior ProposalProposal 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 determines has not breached this Section 5.3 in good faithany material respect with respect to such Company Acquisition Proposal, after consultation the Company may (A) make available information (including non-public information) with outside legal counsel, that failure respect to take such action would be inconsistent with the directors’ duties under applicable Law; provided, however, that in each of Acquired Companies to the foregoing clauses (i) and (ii), Person making such Company Acquisition Proposal was not solicited pursuant to a Company Acceptable Confidentiality Agreement; and (B) participate in violation of Section 7.5.
(d) In addition to the other obligations of the discussions or negotiations with such Person making such Company set forth in this Section 7.5, after the No Shop Period Start Date, the 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 of any Company Acquisition Proposal or any request for nonpublic inquiry, proposal or offer that would reasonably be expected to lead to a Company Acquisition Proposal, which notice will include the identity of the 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, any information relating concerning the Company, the Company Subsidiaries or their businesses, assets or properties provided or made available to such other person (or its representatives) by the Company after receipt by the Company of the Company Acquisition Proposal that was not previously provided or made available to Parent (such information and documentation, the “Company Acquisition Proposal Information”). 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 Company or any Company Subsidiary by shall enter into any Third Party, or any Inquiry Contract that would prohibit them from any Person seeking to have discussions or negotiations with providing the Company relating to a possible Company Acquisition Proposal Information to Parent or its Representatives.
(such notice shall indicate d) From the identity date of this Agreement until the earlier of the Third Party making the Company Acquisition Proposal, request or Inquiry Effective Time and the material terms and conditions termination of any Company Acquisition Proposals, Inquiries, proposals or offers, including a copy thereof if in writing and any related documentation or correspondence), and (ii) it enters into any discussions or negotiations concerning any Company Acquisition Proposal or provides nonpublic information or data to any Person this Agreement in accordance with this Section 7.5(d)7.1, and, in each case, the Company shall keep Parent informed of the status and terms of any such Company Acquisition Proposals, Inquiries, proposals, offers, discussions or negotiations on a current basis (including any change to the financial terms, conditions or other material terms 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 except as otherwise permitted by this Agreement (including Section 7.5(e5.3(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 (or publicly propose to withholdmodify, withdraw, modify or qualify), in each case in a manner adverse to Parent or Merger SubParent, the Company Recommendation, (ii) approveadopt, adoptauthorize, recommend, endorse or recommend otherwise declare advisable (or publicly propose to approve, adopt, endorse authorize, recommend or recommendendorse) 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 in the Schedule 14D-9 andProxy Statement/Prospectus, if Company Stockholder Approval is required under the MGCL (v) take any action or make any recommendation or public statement in order to consummate the Merger connection with a tender offer or exchange offer other than pursuant an unequivocal recommendation against such offer; or (vi) resolve or agree to Section 3-106 of the MGCL, in the Proxy Statement, (iv) fail to publicly recommend against any Company Acquisition Proposal 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 7.5(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 or permit the Company to enter into, any Alternative Acquisition Agreement (other than an Acceptable Confidentiality Agreement entered into in accordance with this Section 7.5). Notwithstanding anything to the contrary set forth in this AgreementAgreement (including this Section 5.3), at any time if prior to the Offer Closing, obtaining the Company Board shall be permitted to effect an Adverse Recommendation Change if Stockholder Approval, (i) the Company Board (x) has received receives a bona fide written Company Acquisition Proposal (that did not arise or result from a material breach of this Section 7.55.3, (ii) that, the Company Board determines in the good faith determination of the Company Board, (after consultation with the Company’s outside legal counsel and outside 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 ) that (x) such Company Acquisition Proposal is not withdrawnconstitutes a Company Superior Proposal and, and in any event, (y) determines in good faith, after consultation with outside legal counsel, that the failure to take such action make a Company Adverse Recommendation Change would reasonably be expected to be inconsistent with the directors’ fiduciary 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, Company and the Company Board shall have complied with all of its obligations set forth in the case of a terminationthis Section 5.3 (including Section 5.3(f)) then, 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, that in the event of any such termination, the make a Company complies with its obligation to pay the Termination Payment pursuant to Section 9.3(a)(iii))Adverse Recommendation Change.
(f) The Company Board shall not be entitled to effect an Adverse Recommendation Change pursuant to take any action set forth in Section 7.5(e5.3(e) unless the Company has (i) the Company has provided a written notice to Parent (a “Notice of Company Superior Proposal”) to informing Parent and Merger Sub that the Company intends 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 take effect such action, specifying in reasonable detail the reasons therefor and describing the material terms and conditions of, and attaching a complete copy of, the Company 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)other Company Acquisition Proposal Information, (ii) during for the five four (54) Business Day period following Parent’s and Merger Sub’s receipt of the Notice of Company Superior ProposalProposal (the “Company Superior Proposal Notice Period”), the Company shall, and Board shall cause its Representatives to, negotiate have negotiated in good faith with Parent and Merger Sub considered in good faith (any counteroffers or proposals, including to the extent Parent and Merger Sub desire to negotiate) to make such adjustments in amend the terms and conditions of this Agreement so that such Superior Proposal ceases (to constitute a Superior Proposalthe 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), 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 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 may effect a Company Adverse Recommendation Change, in response to a Company Intervening Event only if (i) the Company Board determines in good faith (after consultation with the Company’s outside counsel) that the failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, (ii) the Company has notified Parent in writing that it intends to effect such a Company Adverse Recommendation Change pursuant to this Section 5.3(g), which notice shall include a reasonably detailed description of the facts and circumstances giving rise to such Company Intervening Event, (iii) for a period of four (4) Business Days following the notice delivered pursuant to clause (ii) of this Section 5.3(g), the Company Board shall have negotiated in good faith with Parent and shall have considered in good faith any proposals to amend the terms and conditions of this Agreement (to the extent Parent wishes to do so) so that the failure to take such action would no longer reasonably be expected to be inconsistent with the Company Board’s fiduciary duties under applicable Law; and (iv) no earlier than the end of the five such four (54) Business Day Day-period, the Company Board shall have determined in good faith, faith (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 or otherwise, Parent) that the Superior Proposal giving rise to the Notice of Superior Proposal continues to constitute a Superior Proposal and, after consultation with outside legal counsel, that failure to take such action would still reasonably be expected to be inconsistent with the directors’ its fiduciary duties under applicable Law. Any amendment to the financial terms or any other material amendment of such Superior Proposal shall require a new Notice of Superior Proposal, and the Company shall be required to comply again with the requirements of this Section 7.5(f); provided, however, that references to the five (5) Business Day period above shall then be deemed to be references to a three (3) Business Day period.
(gh) Nothing contained in this Section 7.5 or elsewhere in this Agreement 5.3 shall prohibit the Company or the Company Board, directly or indirectly through its Representatives, Board 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 has determined, determines in good faith (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 (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 Offer and the Merger shall be deemed to be an a Company Adverse Recommendation Change; and provided further that the taking of any such position or making of any such disclosure contemplated by this Section 7.5(g) shall not affect the Company’s and Change unless the Company Board’s duties under this Section 7.5.
(h) At the No Shop Period Start Date, Board expressly reaffirms the Company Recommendation 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 rejects any Company Acquisition Proposal and shall request the prompt return or destruction of all confidential information previously furnished in connection therewith. From and within ten (10) Business Days 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 any 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 beneficiarydisclosure.
(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 1 contract
Samples: Merger Agreement (ExOne Co)
Company Acquisition Proposals. (a) Notwithstanding anything to the contrary contained in this Agreement but subject Subject to Section 7.5(f5.3(c) through Section 5.3(f), during the period (the “Go Shop Period”) beginning on Company agrees that, from the date of this Agreement and continuing until 11:59 p.m. (New York City time) on April 16the Closing or, 2014 (the “No Shop Period Start Date”)if earlier, the Company termination of this Agreement in accordance with ARTICLE VII, neither it nor any of its Subsidiaries shall, and that it shall use its reasonable best efforts to cause its and its Representatives shall have the right Subsidiaries’ directors, officers, employees, agents, investment bankers, attorneys, accountants and other representatives (acting under the direction of the Company Board or any committee thereof“Representatives”) not to, directly or indirectly, (i) initiate, solicit, induce, cause, initiate or solicit or knowingly encourage and or facilitate any inquiries with respect to, or the making of, a Company Acquisition ProposalsProposal, including by way of providing 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 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 simultaneously with providing it to such Third Party, and (ii) engage in and maintain discussions or any negotiations with respect to any 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 inconcerning, or facilitate provide any such inquiries, proposals, offers, discussions confidential information 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 terms or proposals provided (including financing commitments) to data regarding the Company or its Subsidiaries to any Company Subsidiary and (y) a written summary of the material terms of any Company Acquisition Proposal not made in writing (including any terms proposed orally or supplementally).
(b) Except as expressly permitted by this Section 7.5, from and after the No Shop Period Start Date until the Effective 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 person relating to, a Company Acquisition Proposal, including from any Go Shop Bidder (an “Inquiry”), (iiiii) enter into, continue, conduct, engage, maintain approve or otherwise participate in any discussions or negotiations regardingrecommend, or furnish propose publicly to any Third Party (including any Go Shop Bidder) any non-public information in connection withapprove or recommend, 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, (iiiiv) 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 publicly 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 7.5) providing for or relating to a any Company Acquisition Proposal with any Third Party (including any Go Shop Bidder) (an each a “Alternative Company 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 (vi) resolve, agree, approve, recommend or propose publicly propose or agree to do any of the foregoingforegoing relating to any Company Acquisition Proposal.
(b) Subject to Section 5.3(c) through Section 5.3(f), prior to the Closing, neither the Company Board nor any committee thereof shall, directly or indirectly, (i) withdraw, withhold, modify or qualify, or publicly propose to withdraw, withhold, modify or qualify, in a manner adverse to Parent, the Company Board Recommendation, (ii) approve, adopt or recommend, or publicly propose to approve, adopt or recommend, any Company Acquisition Proposal, (iii) in the event of the commencement of a tender offer or exchange offer for any outstanding shares of the Company’s capital stock, fail to recommend against acceptance of such tender offer or exchange offer by the Company Stockholders within ten Business Days of the commencement thereof (for the avoidance of doubt, the taking of no position or a neutral position by the Company Board in respect of the acceptance of any tender offer or exchange offer by the Company Stockholders as of the end of the ten Business Day period shall constitute a failure to recommend against any such offer), or (iv) recommend that the Company Stockholders not adopt this Agreement or approve the Merger (any action described in clauses (i)-(iv) above being referred to as an “Company Change of Recommendation”).
(c) Notwithstanding anything Nothing contained in this Agreement shall prevent the Company or the Company Board from (i) complying with its disclosure obligations under Rule 14d-9 and 14e-2 promulgated under the Exchange Act and (ii) making any disclosure to the contrary Company’s stockholders if the Company Board determines in good faith, after consultation with its outside legal counsel, that the failure to make such disclosure would be inconsistent with its fiduciary duties or applicable Law; provided, however, that if any such public disclosure by the Company has the effect of a Company Change of Recommendation, Parent shall have the right to terminate this Section 7.5, at any time following the No Shop Period Start Date and prior Agreement to the Offer Closing extent set forth in Section 7.1(d).
(d) Notwithstanding the limitations set forth in Section 5.3(a) and in no event after that timeSection 5.3(b), until the earlier of receipt of the Company mayStockholder Approval and any termination of this Agreement pursuant to Section 7.1, directly or indirectly through any Representative, in response to an unsolicited bona fide written Company Acquisition Proposal by a Third Party made if after the date of this Agreement the Company receives a written unsolicited bona fide Company Acquisition Proposal that the Company Board has determined in good faith, after consultation with its outside legal counsel and financial advisors (i) constitutes a Company Superior Proposal or (ii) could reasonably be expected to result in a Company Superior Proposal, then the Company, its Subsidiaries and its and their respective Representatives may, subject to Section 5.3(h), take the following actions: (A) furnish nonpublic information to the third party making such Company Acquisition Proposal, if, and only if, prior to furnishing such information, the Company receives from the third party an executed confidentiality agreement with provisions no less restrictive to such third party with respect to the use or disclosure of nonpublic information than the Confidentiality Agreement and (B) engage in discussions or negotiations with the third party with respect to such Company Acquisition Proposal.
(e) Notwithstanding anything in this Agreement to the contrary, nothing contained in this Agreement shall prevent the Company or the Company Board from, at any time prior to, but not after, the time of the receipt of the Company Stockholder Approval, in response to the receipt of a written unsolicited bona fide Company Acquisition Proposal after the date of this Agreement that did not result from a breach of this Section 7.5; provided that any bona fide 5.3, (i) terminating this Agreement pursuant to Section 7.1(e) in order to enter into a definitive written agreement with respect to such 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) furnish non-public information to such Third Party (and such Third Party’s Representatives) making a Company Acquisition Proposal (provided, however, that (A) prior to so furnishing such 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 or Merger Sub prior to or 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 effecting a Company Acquisition Proposal Change of Recommendation, if, prior to taking any of the actions described in the case of each of clauses (i) and or (ii): ), (xA) the Company Board determines in good faith, after consultation with its outside legal counsel and financial advisors, that (x) failure to take such action would reasonably be expected to be inconsistent with the Company directors’ fiduciary duties under applicable Law and (y) such Company Acquisition Proposal constitutes(in the form, or is reasonably likely to result inother than immaterial changes, that was the subject of the Superior Proposal Notice) constitutes a Company Superior Proposal, (B) Parent shall have received written notice (the “Superior Proposal Notice”) of the Company’s intention to take such action at least four Business Days prior to the taking of such action by the Company and (yC) the Company Board continues to believe, after taking into account any modifications to the terms of the transactions contemplated by this Agreement that are offered by Parent after its receipt of the Superior Proposal Notice, that such Company Acquisition Proposal continues to constitute a Company Superior Proposal.
(f) Notwithstanding anything in this Agreement to the contrary, nothing contained in this Agreement shall prevent the Company Board from, at any time prior to, but not after, the time of the receipt of the Company Stockholder Approval, effecting a Company Change of Recommendation (other than in response to the receipt or making of a Company Acquisition Proposal, which shall be subject to Section 5.3(e)) if, prior to taking such action, the Company Board determines in good faith, after consultation with its outside legal counsel, that failure to take such action would be inconsistent with the Company directors’ fiduciary duties under applicable Law; provided, however, however that in each of the foregoing clauses (i) and Parent shall have received written notice (ii), such Company Acquisition Proposal was not solicited in violation of Section 7.5.
(da “Board Recommendation Notice” ) In addition to the other obligations of the Company set forth in this Section 7.5, after Board’s intention to take any such action at least four Business Days prior to the No Shop Period Start Date, taking of such action by the Company shall notify Parent promptly (but in no event later than 24 hours) after (i) receipt of any Company Acquisition Proposal or any request for nonpublic information relating to the Company or any Company Subsidiary by any Third 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 any Company Acquisition Proposals, Inquiries, proposals or offers, including a copy thereof if in writing and any related documentation or correspondence), Board and (ii) it enters into any discussions or negotiations concerning any Company Acquisition Proposal or provides nonpublic information or data to any Person in accordance with this Section 7.5(d), and, in each case, the Company shall keep Parent informed of the status and terms of Board continues to believe, after taking into account any such Company Acquisition Proposals, Inquiries, proposals, offers, discussions or negotiations on a current basis (including any change modifications to the financial terms, conditions or other material terms 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 the transactions contemplated by this Section 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 Parent or Merger Sub, the Company 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 in the Schedule 14D-9 and, if Company Stockholder Approval is required under the MGCL in order to consummate the Merger other than pursuant to Section 3-106 of the MGCL, in the Proxy Statement, (iv) fail to publicly recommend against any Company Acquisition Proposal 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 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 7.5). Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to the Offer Closing, the Company Board shall be permitted to effect an Adverse Recommendation Change if the Company Board (x) has received a bona fide Company Acquisition Proposal (that did not result from a breach of this Section 7.5) that, in the good faith determination of the Company 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 are offered by Parent and Merger Sub pursuant to Section 7.5(f), and after its receipt of such Company Acquisition Proposal is not withdrawn, and (y) determines in good faith, after consultation with outside legal counsel, Board Recommendation Notice that failure failing to take such action would be inconsistent with the Company directors’ fiduciary 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, that in the event of any such termination, the Company complies with its obligation to pay the Termination Payment pursuant to Section 9.3(a)(iii)).
(f) The Company Board shall not be entitled to effect an Adverse Recommendation Change pursuant to Section 7.5(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 five (5) 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 end of the five (5) Business Day period, the Company Board shall have determined in good 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 or otherwise, that the Superior Proposal giving rise to the Notice of Superior Proposal continues to constitute a Superior Proposal and, after consultation with outside legal counsel, that failure to take such action would be inconsistent with the directors’ duties under applicable Law. Any amendment to the financial terms or any other material amendment of such Superior Proposal shall require a new Notice of Superior Proposal, and the Company shall be required to comply again with the requirements of this Section 7.5(f); provided, however, that references to the five (5) Business Day period above shall then be deemed to be references to a three (3) Business Day period.
(g) Nothing contained in this Section 7.5 or elsewhere in this Agreement shall prohibit the The Company or the Company Board, directly or indirectly through agrees that it and its Representatives, from disclosing to the Company’s stockholders a position contemplated by Rule 14e-2(aSubsidiaries will (i) or Rule 14d-9 promulgated under the Exchange Act or making any disclosure to its stockholders if the Company Board 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 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 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 discussionsactivities, discussions or negotiations or communications with any Person person (other than the parties) conducted prior to the No Shop Period Start Date date of this Agreement with respect to any Company Acquisition Proposal and shall (ii) request the prompt each third party that has heretofore executed a confidentiality agreement that relates to a Company Acquisition Proposal (other than Parent) to return or destruction of destroy all confidential information previously regarding the Company or its Subsidiaries heretofore furnished to such third party by the Company or on its behalf. The Company agrees that it and its Subsidiaries will take the necessary steps to promptly inform its and its Subsidiaries’ Representatives of the obligations undertaken in connection therewith. this Section 5.3.
(h) From and after the No Shop Period Start Datedate of this Agreement, the Company shall promptly orally notify Parent of any request for information or any inquiries, proposals or offers relating to a Company Acquisition Proposal indicating, in connection with such notice, the name of such person making such request, inquiry, proposal or offer and the Company Subsidiaries material terms and their respective officers, directors and employees shall, conditions of any proposals or offers and the Company shall instruct provide to Parent written notice of any such inquiry, proposal or offer within 48 hours of such event and cause its copies of any written or electronic correspondence to or from any person making a Company Acquisition Proposal. The Company shall keep Parent informed orally, as soon as is reasonably practicable, of the status of any Company Acquisition Proposal, including with respect to the status and terms of any such proposal or offer and whether any such proposal or offer has been withdrawn or rejected and the Company Subsidiaries’ Representatives to, take shall provide to Parent written notice of any such action as withdrawal or rejection and copies of any written proposals or requests for information within 48 hours. The Company also agrees to provide any information to Parent (not previously provided to Parent) that it is necessary providing to enforce any confidentiality provisions or provisions of similar effect another person pursuant to which this Section 5.3 at substantially the Company or any same time it provides such information to such other person. All information provided to Parent under this Section 5.3 shall be kept confidential by Parent in accordance with the terms of the Company Subsidiaries is a party or of which the Company or any of the Company Subsidiaries is a beneficiaryConfidentiality Agreement.
(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 1 contract
Samples: Merger Agreement (Office Depot Inc)
