Competing Transaction. (a) Except as provided in Section 7.03(c), until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article IX, the Company agrees that neither it nor any of its Subsidiaries nor any of their respective Representatives will, and that it will cause each of its Subsidiaries and each of its and its Subsidiaries’ Representatives not to, directly or indirectly, (i) solicit, initiate or knowingly encourage (including by way of furnishing nonpublic information), or knowingly take any other action to facilitate, any inquiries or the making of any proposal or offer (including without limitation any proposal or offer to the Company’s shareholders) with respect to, or that may reasonably be expected to lead to, any Competing Transaction, (ii) enter into, maintain, continue or otherwise engage or participate in any discussions or negotiations with, or provide any non-public information or data concerning the Company or any Subsidiary to, any Person or entity in furtherance of such inquiries or to obtain a proposal or offer with respect to a Competing Transaction or any proposal or offer that may reasonably be expected to lead to a Competing Transaction, (iii) agree to, approve, endorse, recommend, execute, enter into or consummate any Competing Transaction or any proposal or offer that may reasonably be expected to lead to a Competing Transaction, or that requires the Company to abandon this Agreement or the Merger (other than any Acceptable Confidentiality Agreement), (iv) grant any waiver, amendment or release under any standstill or confidentiality agreement or Takeover Statutes (and the Company shall promptly take all actions reasonably necessary to terminate or cause to be terminated any such waiver previously granted with respect to any provision of any such confidentiality or standstill agreement or Takeover Statute), or (v) resolve, propose or agree, or authorize or permit any Representative, to do any of the foregoing. The Company shall, and shall cause its Subsidiaries and its Subsidiaries’ Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Persons conducted prior to the execution of this Agreement by the Company, any of its Subsidiaries or any of their Representatives with respect to a Competing Transaction. The Company shall promptly request each Person that has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring (whether by merger, acquisition of share or assets or otherwise) the Company or any of its Subsidiaries, to return (or if permitted by the applicable confidentiality agreement, destroy) all information required to be returned (or, if applicable, destroyed) by such Person under the terms of the applicable confidentiality agreement. (b) The Company shall notify Parent as promptly as practicable (and in any event within 48 hours after the Company attains knowledge thereof), orally and in writing, after the receipt by the Company, any of its Subsidiaries or any of their respective Representatives of any proposal or offer (or any amendment thereto) with respect to a Competing Transaction. Such notice shall indicate the identity of the Person making such proposal or offer and the material terms and conditions of such proposal or offer, accompanied by, if applicable, copies of any written materials received by the Company in connection with any of the foregoing. The Company agrees that it shall keep Parent informed, on a reasonably prompt basis (at least within 48 hours of occurrence of any material changes, developments, discussions or negotiations), of the status and material details of (including discussions with respect to or amendments or proposed amendments to) any such proposal or offer. (c) Notwithstanding anything to the contrary in Section 7.03(a), at any time prior to the receipt of the Company Shareholder Approval, the Company may, subject to compliance with this Section 7.03(c) and acting under the direction of the Special Committee, furnish information to, and enter into discussions or negotiations with, a Person who has made an unsolicited, written, bona fide proposal or offer with respect to a Competing Transaction that did not arise or result from any breach of this Section 7.03(a), if, prior to furnishing such information and entering into such discussions, the Company Board has (i) determined, in its good faith judgment (after having received the advice of a financial advisor of internationally recognized reputation and outside legal counsel) that (A) such proposal or offer constitutes, or would reasonably be expected to lead to, a Superior Proposal and (B) the failure to furnish such information to, or enter into such discussions with, the Person who made such proposal or offer would violate the Company Board’s fiduciary duties to the Company and its shareholders under applicable Law, (ii) provided written notice to Parent of its intent to furnish information or enter into discussions with such Person at least three (3) Business Days prior to taking any such action, and (iii) obtained from such Person an Acceptable Confidentiality Agreement (it being understood that an Acceptable Confidentiality Agreement and any related agreements shall not include any provision granting such Person exclusive rights to negotiate with the Company or having the effect of prohibiting the Company from satisfying its obligations under this Agreement) and, immediately upon its execution, delivered to Parent a copy of such Acceptable Confidentiality Agreement; provided, that the Company shall promptly make available to Parent any material information concerning the Company and its Subsidiaries that is provided to any such Person and that was not previously made available to Parent or its Representatives. (d) Except as set forth in this Section 7.03(d) or Section 7.03(e), neither the Company Board nor any committee thereof shall (i) (A) withhold, withdraw (or not continue to make), qualify or modify (or publicly propose or resolve to withhold, withdraw (or not continue to make), qualify or modify), in a manner adverse to Parent or Merger Sub or the Company Recommendation with respect to the Merger, or (B) adopt, approve or recommend or propose to adopt, approve or recommend (publicly or otherwise) any Competing Transaction (any action described in clauses (A) or (B), a “Change in the Company Recommendation”), or (ii) cause or permit the Company or any of its Subsidiaries to enter into any acquisition agreement, merger agreement or other similar definitive agreement relating to any Competing Transaction (an “Alternative Acquisition Agreement”). Notwithstanding the foregoing, if at any time prior to the receipt of the Company Shareholder Approval, the Company has received an unsolicited, written, bona fide proposal or offer with respect to a Competing Transaction that did not arise or result from any breach of this Section 7.03, that is not withdrawn and that the Company Board (upon recommendation of the Special Committee) determines, in its good faith judgment (after having received the advice of a financial advisor of internationally recognized reputation and outside legal counsel) constitutes, or would reasonably be expected to lead to, a Superior Proposal, the Company Board (upon recommendation of the Special Committee) may, with respect to such Superior Proposal, make a Change in the Company Recommendation and/or authorize the Company to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal; provided, however, that the Company Board shall not be entitled to exercise its right to make a Change in the Company Recommendation or to authorize the Company to enter into an Alternative Acquisition Agreement pursuant to this Section 7.03(d) unless: (1) the Company Board (upon recommendation of the Special Committee) determines in its good faith judgment (after having received the advice of its financial advisor and outside legal counsel), that the failure to do so would violate its fiduciary duties to the Company and its shareholders under applicable Law; (2) prior to effecting a Change in the Company Recommendation or terminating this Agreement to enter into an Alternative Acquisition Agreement, the Company has provided written notice to Parent (a “Notice of Superior Proposal”) advising Parent that the Company Board has received a Superior Proposal promptly after the Company Board determines it has received a Superior Proposal, stating that the Company Board intends to make a Change in the Company Recommendation and the manner in which it intends to do so, specifying the information required to be included in any notice required to be delivered to Parent under Section 7.03(b) and including written evidence of the determination of the Company Board that the Company has received a Superior Proposal; and (3) Parent does not, within five (5) Business Days of receipt of the Notice of Superior Proposal (the “Notice Period”), make an offer or proposal to revise the terms of this Agreement (any such offer, a “Revised Transaction Proposal”) in a manner that the Company Board determines in its good faith judgment, after having received the advice of its financial advisor and outside legal counsel, to be at least as favorable to the Company’s shareholders (other than the holders of the Excluded Shares) as such Superior Proposal; provided, however, that during the Notice Period the Company shall negotiate in good faith with Parent (to the extent Parent desires to negotiate) regarding any Revised Transaction Proposal; provided, further, that any amendment to the terms of such Superior Proposal during the Notice Period shall require a new written notice of the terms of such amended Superior Proposal from the Company and an additional Notice Period that satisfies this Section 7.03(d)(3). (e) Notwithstanding anything in this Section 7.03 to the contrary, prior to obtaining the Company Shareholder Approval, if the Company Board determines, in its good faith judgment upon the recommendation of the Special Committee (after having received the advice of its financial advisor and outside legal counsel), other than in response to or in connection with a Competing Transaction, that failure to make a Change in the Company Recommendation would be inconsistent with its fiduciary duties under applicable Law, the Company Board may, upon the recommendation of the Special Committee, effect a Change in the Company Recommendation; provided, that the Company has provided Parent at least five (5) Business Days’ prior written notice indicating that the Company Board intends to effect a Change in the Company Recommendation. Notwithstanding that the Company Board shall have effected a Change in Company Recommendation pursuant to this Section 7.03(e), upon Parent’s written request, the Company shall convene Company Shareholders’ Meeting promptly and submit this Agreement to the holders of the Shares to obtain the Company Shareholder Approval at a duly convened Company Shareholders’ Meeting, in each case in accordance with the terms and conditions hereof. (f) Nothing contained in this Section 7.03 shall be deemed to prohibit the Company from complying with its disclosure obligations under United States federal or state Law, or other applicable Laws, with regard to a Competing Transaction; provided, however, that if such disclosure includes a Change in the Company Recommendation or has the substantive effect of withdrawing or adversely modifying the Company Recommendation, such disclosure shall be deemed to be a Change in the Company Recommendation and Parent and Merger Sub shall have the right to terminate this Agreement as set forth in Section 9.01(d) (it being understood that a statement by the Company that describes the Company’s receipt of a Competing Transaction and the operation of this Agreement with respect thereto, or any “stop, look or listen” communication that contains only the information set forth in Rule 14d-9(f) under the Exchange Act shall not be deemed a Change in the Company Recommendation or be deemed to have the substantive effect of withdrawing or adversely modifying the Company Recommendation).
Appears in 3 contracts
Samples: Merger Agreement (Cnshangquan E-Commerce Co., Ltd.), Merger Agreement (ChinaEquity USD Fund I L.P.), Merger Agreement (Mecox Lane LTD)
Competing Transaction. (ai) Except as provided may be agreed by Parent and Gadsden in Section 7.03(c), until the Effective Time or, if earlier, the termination of a supplement to this Agreement in accordance with Article IXand subject to Section 5.6, during the Company agrees that neither it Exclusivity Period, no party nor any Subsidiary of its Subsidiaries a party shall, nor any of their respective Representatives will, and that shall it will cause each of its Subsidiaries and each of its and its Subsidiaries’ Representatives not toauthorize or permit, directly or indirectly, any officer, director, employee, agent, investment banker, financial advisor, attorney, broker, finder or other agent, representative or Affiliate of a party or any other Subsidiary of a party to (ix) initiate, solicit, initiate or knowingly encourage or facilitate (including by way of furnishing nonpublic information), information or knowingly take any other action to facilitate, assistance) any inquiries or the making of any proposal or offer (or other action, including without limitation any proposal or offer to the Company’s shareholders) with respect toits stockholders that constitutes, or that may reasonably be expected to lead to, any Competing Transaction, or (iiy) enter into, maintainengage in, continue or otherwise engage or participate in any discussions or negotiations withwith any Person regarding, or provide any non-public information or data concerning the Company or any Subsidiary to, any Person or entity furnish in furtherance of such inquiries or to obtain a proposal or offer with respect to a Competing Transaction or any proposal or offer that may reasonably be expected to lead to a Competing Transaction, (iii) agree to, approve, endorse, recommend, execute, enter into or consummate any Competing Transaction or any proposal or offer that may reasonably be expected to lead to a Competing Transaction, or that requires the Company (z) otherwise enter into or effectuate a Competing Transaction. Each party shall take, and shall cause each Subsidiary of such party to abandon this Agreement or the Merger (other than any Acceptable Confidentiality Agreement)take, (iv) grant any waiver, amendment or release under any standstill or confidentiality agreement or Takeover Statutes (and the Company shall promptly take all actions reasonably necessary to terminate cause their respective officers, directors, employees, investment bankers, financial advisors, attorneys, brokers, finders and any other agents, representatives or cause to be terminated Affiliates to, immediately cease any such waiver previously granted discussions, negotiations or communications with any party or parties with respect to any provision Competing Transaction; provided, that nothing in this sentence shall preclude Parent or Gadsden, as the case may be, or any Subsidiary of such Person or their respective officers, trustees, directors, employees, investment bankers, financial advisors, attorneys, brokers, finders and any other agents, representatives or Affiliates from complying with the provisions of Section 5.5(a)(ii). Each party and each Subsidiary of such party shall be responsible for any failure on the part of their respective officers, directors, employees, investment bankers, financial advisors, attorneys, brokers, finders and any other agents, representatives or Affiliates to comply with this Section 5.5(a). Each party acknowledges that, effective as of the date of this Agreement, the other party waives all standstill or similar provisions of any such confidentiality agreement, letter or standstill agreement understanding for the benefit of it or Takeover Statute), or (v) resolve, propose or agree, or authorize or permit any Representative, to do any of the foregoing. The Company shall, and shall cause its Subsidiaries and its Subsidiaries’ Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Persons conducted prior to the execution of this Agreement by the Company, any of its Subsidiaries that would in any way prohibit any Person from making or any otherwise facilitate the making of their Representatives a proposal with respect to a Competing Transaction. The Company Each party represents and warrants that neither it nor any of its Affiliates is currently engaged in any Competing Transaction.
(ii) Each party shall promptly request each Person that has heretofore executed a confidentiality agreement in connection with such Person’s its consideration of acquiring (whether by merger, acquisition of share or assets acquisition, stock sale, asset sale or otherwise) the Company such party or any Subsidiary of its Subsidiariessuch party, or any material position of their assets, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) destroy all confidential information required heretofore furnished to be returned (or, if applicable, destroyed) by such Person under the terms of the applicable confidentiality agreement.
(b) The Company shall notify Parent as promptly as practicable (and in any event within 48 hours after the Company attains knowledge thereof), orally and in writing, after the receipt by the Company, any of its Subsidiaries or any of their respective Representatives of any proposal or offer (or any amendment thereto) with respect to a Competing Transaction. Such notice shall indicate the identity of the Person making such proposal or offer and the material terms and conditions on behalf of such proposal or offer, accompanied by, if applicable, copies of any written materials received by the Company in connection with any of the foregoing. The Company agrees that it shall keep Parent informed, on a reasonably prompt basis (at least within 48 hours of occurrence of any material changes, developments, discussions or negotiations), of the status and material details of (including discussions with respect to or amendments or proposed amendments to) any such proposal or offer.
(c) Notwithstanding anything to the contrary in Section 7.03(a), at any time prior to the receipt of the Company Shareholder Approval, the Company may, subject to compliance with this Section 7.03(c) and acting under the direction of the Special Committee, furnish information to, and enter into discussions or negotiations with, a Person who has made an unsolicited, written, bona fide proposal or offer with respect to a Competing Transaction that did not arise or result from any breach of this Section 7.03(a), if, prior to furnishing such information and entering into such discussions, the Company Board has (i) determined, in its good faith judgment (after having received the advice of a financial advisor of internationally recognized reputation and outside legal counsel) that (A) such proposal or offer constitutes, or would reasonably be expected to lead to, a Superior Proposal and (B) the failure to furnish such information to, or enter into such discussions with, the Person who made such proposal or offer would violate the Company Board’s fiduciary duties to the Company and its shareholders under applicable Law, (ii) provided written notice to Parent of its intent to furnish information or enter into discussions with such Person at least three (3) Business Days prior to taking any such action, and (iii) obtained from such Person an Acceptable Confidentiality Agreement (it being understood that an Acceptable Confidentiality Agreement and any related agreements shall not include any provision granting such Person exclusive rights to negotiate with the Company or having the effect of prohibiting the Company from satisfying its obligations under this Agreement) and, immediately upon its execution, delivered to Parent a copy of such Acceptable Confidentiality Agreement; provided, that the Company shall promptly make available to Parent any material information concerning the Company and its Subsidiaries that is provided to any such Person and that was not previously made available to Parent party or its Representativesapplicable Subsidiary.
(d) Except as set forth in this Section 7.03(d) or Section 7.03(e), neither the Company Board nor any committee thereof shall (i) (A) withhold, withdraw (or not continue to make), qualify or modify (or publicly propose or resolve to withhold, withdraw (or not continue to make), qualify or modify), in a manner adverse to Parent or Merger Sub or the Company Recommendation with respect to the Merger, or (B) adopt, approve or recommend or propose to adopt, approve or recommend (publicly or otherwise) any Competing Transaction (any action described in clauses (A) or (B), a “Change in the Company Recommendation”), or (ii) cause or permit the Company or any of its Subsidiaries to enter into any acquisition agreement, merger agreement or other similar definitive agreement relating to any Competing Transaction (an “Alternative Acquisition Agreement”). Notwithstanding the foregoing, if at any time prior to the receipt of the Company Shareholder Approval, the Company has received an unsolicited, written, bona fide proposal or offer with respect to a Competing Transaction that did not arise or result from any breach of this Section 7.03, that is not withdrawn and that the Company Board (upon recommendation of the Special Committee) determines, in its good faith judgment (after having received the advice of a financial advisor of internationally recognized reputation and outside legal counsel) constitutes, or would reasonably be expected to lead to, a Superior Proposal, the Company Board (upon recommendation of the Special Committee) may, with respect to such Superior Proposal, make a Change in the Company Recommendation and/or authorize the Company to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal; provided, however, that the Company Board shall not be entitled to exercise its right to make a Change in the Company Recommendation or to authorize the Company to enter into an Alternative Acquisition Agreement pursuant to this Section 7.03(d) unless:
(1) the Company Board (upon recommendation of the Special Committee) determines in its good faith judgment (after having received the advice of its financial advisor and outside legal counsel), that the failure to do so would violate its fiduciary duties to the Company and its shareholders under applicable Law;
(2) prior to effecting a Change in the Company Recommendation or terminating this Agreement to enter into an Alternative Acquisition Agreement, the Company has provided written notice to Parent (a “Notice of Superior Proposal”) advising Parent that the Company Board has received a Superior Proposal promptly after the Company Board determines it has received a Superior Proposal, stating that the Company Board intends to make a Change in the Company Recommendation and the manner in which it intends to do so, specifying the information required to be included in any notice required to be delivered to Parent under Section 7.03(b) and including written evidence of the determination of the Company Board that the Company has received a Superior Proposal; and
(3) Parent does not, within five (5) Business Days of receipt of the Notice of Superior Proposal (the “Notice Period”), make an offer or proposal to revise the terms of this Agreement (any such offer, a “Revised Transaction Proposal”) in a manner that the Company Board determines in its good faith judgment, after having received the advice of its financial advisor and outside legal counsel, to be at least as favorable to the Company’s shareholders (other than the holders of the Excluded Shares) as such Superior Proposal; provided, however, that during the Notice Period the Company shall negotiate in good faith with Parent (to the extent Parent desires to negotiate) regarding any Revised Transaction Proposal; provided, further, that any amendment to the terms of such Superior Proposal during the Notice Period shall require a new written notice of the terms of such amended Superior Proposal from the Company and an additional Notice Period that satisfies this Section 7.03(d)(3).
(e) Notwithstanding anything in this Section 7.03 to the contrary, prior to obtaining the Company Shareholder Approval, if the Company Board determines, in its good faith judgment upon the recommendation of the Special Committee (after having received the advice of its financial advisor and outside legal counsel), other than in response to or in connection with a Competing Transaction, that failure to make a Change in the Company Recommendation would be inconsistent with its fiduciary duties under applicable Law, the Company Board may, upon the recommendation of the Special Committee, effect a Change in the Company Recommendation; provided, that the Company has provided Parent at least five (5) Business Days’ prior written notice indicating that the Company Board intends to effect a Change in the Company Recommendation. Notwithstanding that the Company Board shall have effected a Change in Company Recommendation pursuant to this Section 7.03(e), upon Parent’s written request, the Company shall convene Company Shareholders’ Meeting promptly and submit this Agreement to the holders of the Shares to obtain the Company Shareholder Approval at a duly convened Company Shareholders’ Meeting, in each case in accordance with the terms and conditions hereof.
(f) Nothing contained in this Section 7.03 shall be deemed to prohibit the Company from complying with its disclosure obligations under United States federal or state Law, or other applicable Laws, with regard to a Competing Transaction; provided, however, that if such disclosure includes a Change in the Company Recommendation or has the substantive effect of withdrawing or adversely modifying the Company Recommendation, such disclosure shall be deemed to be a Change in the Company Recommendation and Parent and Merger Sub shall have the right to terminate this Agreement as set forth in Section 9.01(d) (it being understood that a statement by the Company that describes the Company’s receipt of a Competing Transaction and the operation of this Agreement with respect thereto, or any “stop, look or listen” communication that contains only the information set forth in Rule 14d-9(f) under the Exchange Act shall not be deemed a Change in the Company Recommendation or be deemed to have the substantive effect of withdrawing or adversely modifying the Company Recommendation).
Appears in 2 contracts
Samples: Stock Purchase Agreement (FC Global Realty Inc), Merger Agreement (FC Global Realty Inc)
Competing Transaction. (a) Except Subject to Section 7.2, and notwithstanding anything else in this Agreement, nothing shall prevent the Board of Directors from withdrawing, modifying or changing any recommendation regarding the Offer in response to a bona fide Competing Transaction (as provided in Section 7.03(c)defined below) that has not been solicited, until initiated, assisted or encouraged by or on behalf of the Effective Time or, if earlier, the termination of this Agreement in accordance with Article IX, the Company agrees that neither it nor Corporation or any of its Subsidiaries nor subsidiaries, or by any advisor to or director or senior officer of the Corporation, any of their respective Representatives willits subsidiaries or any affiliate or associate thereof, where in the opinion of the Board of Directors, acting in good faith and that it will cause each after consultation with its financial and legal advisors, a failure to so respond would be a violation of its Subsidiaries and each fiduciary obligations under applicable law.
(b) Notwithstanding the foregoing, it shall not be a breach of its and its Subsidiaries’ Representatives not tothis section 7.1 if, directly or indirectlyat any time prior to the consummation of the Offer, the Corporation (iacting at the direction of the Board of Directors) solicit, initiate or knowingly encourage (including by way of furnishing nonpublic information), or knowingly take any other action to facilitate, any inquiries or the making Board of Directors requests clarifications from any proposal or offer (including without limitation any proposal or offer to the Company’s shareholders) with respect to, or that may reasonably be expected to lead to, any third party which proposes a Competing Transaction, (ii) enter intoif such action is taken solely for the purpose of obtaining information reasonably necessary for the Corporation to ascertain whether such Competing Transaction provides or will provide consideration, maintainon a cash equivalent basis, continue or otherwise more favorable to the Corporation’s Shareholders from a financial point of view; provided, however, that the Board of Directors shall not rely on this clause to engage or participate in any discussions or negotiations with, or provide any non-public confidential information or data concerning the Company or any Subsidiary to, any Person or entity in furtherance of such inquiries or to obtain a proposal or offer with respect to a Competing Transaction or any proposal or offer third party, and provided further that may reasonably be expected to lead to a Competing Transaction, (iii) agree to, approve, endorse, recommend, execute, enter into or consummate any Competing Transaction or any proposal or offer that may reasonably be expected to lead to a Competing Transaction, or that requires the Company to abandon this Agreement Corporation or the Merger (other than any Acceptable Confidentiality Agreement)Board of Directors, (iv) grant any waiveras the case may be, amendment or release under any standstill or confidentiality agreement or Takeover Statutes (and will inform the Company shall promptly take all actions reasonably necessary to terminate or cause to be terminated any such waiver previously granted with respect to any provision Offeror in writing of any such confidentiality or standstill agreement or Takeover Statute), or (v) resolve, propose or agree, or authorize or permit any Representative, to do any of the foregoing. The Company shall, and shall cause its Subsidiaries and its Subsidiaries’ Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Persons conducted prior to the execution of this Agreement by the Company, any of its Subsidiaries or any of their Representatives with respect to a Competing Transaction. The Company shall promptly request each Person that has heretofore executed a confidentiality agreement actions taken in connection with such Person’s consideration this section 7.1(b) and will apprise the Offeror of acquiring (whether by merger, acquisition of share or assets or otherwise) the Company or any of its Subsidiaries, to return (or if permitted by the applicable confidentiality agreement, destroy) all information required to be returned (or, if applicable, destroyed) by such Person under the terms of the applicable confidentiality agreementdevelopments with respect thereto.
(bc) The Company Corporation shall immediately notify Parent as promptly as practicable (and the Offeror in any event within 48 hours after the Company attains knowledge thereof), orally and in writing, after writing of the receipt by the Company, any of its Subsidiaries or any of their respective Representatives of any proposal or offer (which has been or is made relating to any amendment thereto) transaction that is inconsistent with respect or could reasonably be expected to frustrate the successful completion of the Offer including, without limitation, any proposal which constitutes or could constitute a Competing Transaction. Such notice shall indicate , indicating, in connection such notice, the identity name of the Person person making such proposal or offer and the material terms (including, without limitation, price, form of consideration, form of transaction and conditions of such proposal or offer, accompanied by, if applicable, copies conditions) of any written materials received by the Company in connection with any of the foregoing. The Company agrees that it shall keep Parent informedinquiries, on a reasonably prompt basis (at least within 48 hours of occurrence of any material changes, developments, discussions proposals or negotiations), of the status and material details of (including discussions with respect to or amendments or proposed amendments to) any such proposal or offer.
(c) Notwithstanding anything to the contrary in Section 7.03(a), at any time prior to the receipt of the Company Shareholder Approval, the Company may, subject to compliance with this Section 7.03(c) and acting under the direction of the Special Committee, furnish information to, and enter into discussions or negotiations with, a Person who has made an unsolicited, written, bona fide proposal or offer with respect to a Competing Transaction that did not arise or result from any breach of this Section 7.03(a), if, prior to furnishing such information and entering into such discussions, the Company Board has (i) determined, in its good faith judgment (after having received the advice of a financial advisor of internationally recognized reputation and outside legal counsel) that (A) such proposal or offer constitutes, or would reasonably be expected to lead to, a Superior Proposal and (B) the failure to furnish such information to, or enter into such discussions with, the Person who made such proposal or offer would violate the Company Board’s fiduciary duties to the Company and its shareholders under applicable Law, (ii) provided written notice to Parent of its intent to furnish information or enter into discussions with such Person at least three (3) Business Days prior to taking any such action, and (iii) obtained from such Person an Acceptable Confidentiality Agreement (it being understood that an Acceptable Confidentiality Agreement and any related agreements shall not include any provision granting such Person exclusive rights to negotiate with the Company or having the effect of prohibiting the Company from satisfying its obligations under this Agreement) and, immediately upon its execution, delivered to Parent a copy of such Acceptable Confidentiality Agreement; provided, that the Company shall promptly make available to Parent any material information concerning the Company and its Subsidiaries that is provided to any such Person and that was not previously made available to Parent or its Representativesoffers.
(d) Except as set forth in this Section 7.03(d) For the purposes hereof, “Competing Transaction” means an unsolicited offer or Section 7.03(e), neither the Company Board nor any committee thereof shall (i) (A) withhold, withdraw (or not continue to make), qualify or modify (or publicly propose or resolve to withhold, withdraw (or not continue to make), qualify or modify), in a manner adverse to Parent or Merger Sub or the Company Recommendation with respect proposal made to the Merger, or (B) adopt, approve or recommend or propose to adopt, approve or recommend (publicly or otherwise) any Competing Transaction (any action described in clauses (A) or (B), a “Change in the Company Recommendation”), or (ii) cause or permit the Company Corporation or any of its Subsidiaries subsidiaries in writing and duly authorized by the board of directors of the person making the offer or proposal (i) to enter into purchase or otherwise acquire all of the Common Shares of the Corporation or the shares of any acquisition agreementof its subsidiaries or all or substantially all of their respective assets, (ii) that is made or proposed to be made by means of a take-over bid, amalgamation, plan of arrangement, merger agreement or other similar definitive agreement relating means of acquisition or business combination and is available to any Competing Transaction all holders of Common Shares (an “Alternative Acquisition Agreement”including Common Shares issuable upon the conversion or exchange of Exchangeable Shares). Notwithstanding the foregoing, if at any time prior (iii) with conditions no more beneficial, taken as a whole, to the receipt person making the offer or proposal than those contained in the Offer for the benefit of the Company Shareholder ApprovalOfferor, (iv) which the Company Board of Directors has received an unsolicited, written, bona fide proposal or offer with respect to a Competing Transaction that did not arise or result from any breach of this Section 7.03, that is not withdrawn and that the Company Board (upon recommendation of the Special Committee) determinesdetermined, in its good faith judgment (after having received the advice of a financial advisor of internationally recognized reputation and outside legal counsel) constitutesreasonable judgment, or would reasonably be expected to lead to, a Superior Proposal, the Company Board (upon recommendation of the Special Committee) may, with respect to such Superior Proposal, make a Change in the Company Recommendation and/or authorize the Company to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal; provided, however, that the Company Board shall not be entitled to exercise its right to make a Change in the Company Recommendation or to authorize the Company to enter into an Alternative Acquisition Agreement pursuant to this Section 7.03(d) unless:
(1) the Company Board (upon recommendation of the Special Committee) determines in its good faith judgment (after having received based on the advice of its financial advisor and outside legal counsel)advisor, that the failure to do so would violate its fiduciary duties to the Company and its shareholders under applicable Law;
(2) prior to effecting provides or will provide consideration, on a Change in the Company Recommendation or terminating this Agreement to enter into an Alternative Acquisition Agreementcash equivalent basis, the Company has provided written notice to Parent (a “Notice of Superior Proposal”) advising Parent that the Company Board has received a Superior Proposal promptly after the Company Board determines it has received a Superior Proposal, stating that the Company Board intends to make a Change in the Company Recommendation and the manner in which it intends to do so, specifying the information required to be included in any notice required to be delivered to Parent under Section 7.03(b) and including written evidence of the determination of the Company Board that the Company has received a Superior Proposal; and
(3) Parent does not, within five (5) Business Days of receipt of the Notice of Superior Proposal (the “Notice Period”), make an offer or proposal to revise the terms of this Agreement (any such offer, a “Revised Transaction Proposal”) in a manner that the Company Board determines in its good faith judgment, after having received the advice of its financial advisor and outside legal counsel, to be at least as more favorable to the CompanyCorporation’s shareholders from a financial point of view at the time the Board of Directors proposes to withdraw or otherwise change its recommendation to support the Offer as provided for herein, and (v) that is reasonably capable of being completed, taking into account all financial, regulatory, legal and other than the holders aspects of the Excluded Shares) as such Superior Proposal; provided, however, that during the Notice Period the Company shall negotiate in good faith with Parent (to the extent Parent desires to negotiate) regarding any Revised Transaction Proposal; provided, further, that any amendment to the terms of such Superior Proposal during the Notice Period shall require a new written notice of the terms of such amended Superior Proposal from the Company and an additional Notice Period that satisfies this Section 7.03(d)(3)offer or proposal.
(e) Notwithstanding anything in this Section 7.03 to the contrary, prior to obtaining the Company Shareholder Approval, if the Company Board determines, in its good faith judgment upon the recommendation of the Special Committee (after having received the advice of its financial advisor and outside legal counsel), other than in response to or in connection with a Competing Transaction, that failure to make a Change in the Company Recommendation would be inconsistent with its fiduciary duties under applicable Law, the Company Board may, upon the recommendation of the Special Committee, effect a Change in the Company Recommendation; provided, that the Company has provided Parent at least five (5) Business Days’ prior written notice indicating that the Company Board intends to effect a Change in the Company Recommendation. Notwithstanding that the Company Board shall have effected a Change in Company Recommendation pursuant to this Section 7.03(e), upon Parent’s written request, the Company shall convene Company Shareholders’ Meeting promptly and submit this Agreement to the holders of the Shares to obtain the Company Shareholder Approval at a duly convened Company Shareholders’ Meeting, in each case in accordance with the terms and conditions hereof.
(f) Nothing contained in this Section 7.03 shall be deemed to prohibit the Company from complying with its disclosure obligations under United States federal or state Law, or other applicable Laws, with regard to a Competing Transaction; provided, however, that if such disclosure includes a Change in the Company Recommendation or has the substantive effect of withdrawing or adversely modifying the Company Recommendation, such disclosure shall be deemed to be a Change in the Company Recommendation and Parent and Merger Sub shall have the right to terminate this Agreement as set forth in Section 9.01(d) (it being understood that a statement by the Company that describes the Company’s receipt of a Competing Transaction and the operation of this Agreement with respect thereto, or any “stop, look or listen” communication that contains only the information set forth in Rule 14d-9(f) under the Exchange Act shall not be deemed a Change in the Company Recommendation or be deemed to have the substantive effect of withdrawing or adversely modifying the Company Recommendation).
Appears in 1 contract
Competing Transaction. (a) Except as provided in Section 7.03(c), until This Agreement is subject to approval by the Effective Time or, if earlier, the termination of this Agreement in accordance with Article IX, the Company agrees that neither it nor any of its Subsidiaries nor any of their respective Representatives will, and that it will cause each of its Subsidiaries and each of its and its Subsidiaries’ Representatives not to, directly or indirectly, (i) solicit, initiate or knowingly encourage (including by way of furnishing nonpublic information), or knowingly take any other action to facilitate, any inquiries or the making of any proposal or offer (including without limitation any proposal or offer to the Company’s shareholders) with respect to, or that may reasonably be expected to lead to, any Competing Transaction, (ii) enter into, maintain, continue or otherwise engage or participate in any discussions or negotiations with, or provide any non-public information or data concerning the Company or any Subsidiary to, any Person or entity in furtherance of such inquiries or to obtain a proposal or offer with respect to a Competing Transaction or any proposal or offer that may reasonably be expected to lead to a Competing Transaction, (iii) agree to, approve, endorse, recommend, execute, enter into or consummate any Competing Transaction or any proposal or offer that may reasonably be expected to lead to a Competing Transaction, or that requires the Company to abandon this Agreement or the Merger (other than any Acceptable Confidentiality Agreement), (iv) grant any waiver, amendment or release under any standstill or confidentiality agreement or Takeover Statutes (Bankruptcy Court and the Company shall promptly take all actions reasonably necessary to terminate consideration by SVCMC of higher or cause to be terminated any such waiver previously granted with respect to any provision of any such confidentiality or standstill agreement or Takeover Statutebetter competing bids (each a “Competing Bid”), or (v) resolve, propose or agree, or authorize or permit any Representative, to do any of the foregoing. The Company shall, and shall cause its Subsidiaries and its Subsidiaries’ Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Persons conducted prior to the execution of this Agreement by the Company, any of its Subsidiaries or any of their Representatives with respect to a Competing Transaction. The Company shall promptly request each Person that has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring (whether by merger, acquisition of share or assets or otherwise) the Company or any of its Subsidiaries, to return (or if permitted by the applicable confidentiality agreement, destroy) all information required to be returned (or, if applicable, destroyed) by such Person under the terms of the applicable confidentiality agreement.
(b) The Company shall notify Parent From the date of this Agreement until the earlier of the date that the Bankruptcy Court enters the Bidding Procedures Order or the termination of this Agreement, except as promptly as practicable (and in any event within 48 hours after the Company attains knowledge thereof), orally and in writing, after the receipt otherwise required by the CompanyBankruptcy Court, the Sellers shall not, and shall cause their respective Affiliates and officers, trustees, employees, agents and representatives not to directly or indirectly, solicit or initiate any inquiry, offer or proposal from any Person regarding the sale or other disposition of its Subsidiaries all or any of their respective Representatives of any proposal or offer (or any amendment thereto) with respect to a Competing Transaction. Such notice shall indicate the identity part of the Person making such proposal or offer and the material terms and conditions of such proposal or offer, accompanied by, if applicable, copies of any written materials received by the Company in connection with any of the foregoing. The Company agrees that it shall keep Parent informed, on a reasonably prompt basis (at least within 48 hours of occurrence of any material changes, developments, discussions or negotiations), of the status and material details of (including discussions with respect to or amendments or proposed amendments to) any such proposal or offer.
(c) Notwithstanding anything to the contrary in Section 7.03(a), at any time prior to the receipt of the Company Shareholder Approval, the Company may, subject to compliance with this Section 7.03(c) and acting under the direction of the Special Committee, furnish information to, and enter into discussions or negotiations with, a Person who has made an unsolicited, written, bona fide proposal or offer with respect to a Competing Transaction that did not arise or result from any breach of this Section 7.03(a), if, prior to furnishing such information and entering into such discussions, the Company Board has (i) determined, in its good faith judgment (after having received the advice of a financial advisor of internationally recognized reputation and outside legal counsel) that (A) such proposal or offer constitutes, or would reasonably be expected to lead to, a Superior Proposal and (B) the failure to furnish such information to, or enter into such discussions with, the Person who made such proposal or offer would violate the Company Board’s fiduciary duties to the Company and its shareholders under applicable Law, (ii) provided written notice to Parent of its intent to furnish information or enter into discussions with such Person at least three (3) Business Days prior to taking any such action, and (iii) obtained from such Person an Acceptable Confidentiality Agreement (it being understood that an Acceptable Confidentiality Agreement and any related agreements shall not include any provision granting such Person exclusive rights to negotiate with the Company or having the effect of prohibiting the Company from satisfying its obligations under this Agreement) and, immediately upon its execution, delivered to Parent a copy of such Acceptable Confidentiality Agreement; provided, that the Company shall promptly make available to Parent any material information concerning the Company and its Subsidiaries that is provided to any such Person and that was not previously made available to Parent or its Representatives.
(d) Except as set forth in this Section 7.03(d) or Section 7.03(e), neither the Company Board nor any committee thereof shall (i) (A) withhold, withdraw (or not continue to make), qualify or modify (or publicly propose or resolve to withhold, withdraw (or not continue to make), qualify or modify), in a manner adverse to Parent or Merger Sub or the Company Recommendation with respect to the Merger, or (B) adopt, approve or recommend or propose to adopt, approve or recommend (publicly or otherwise) any Competing Transaction (any action described in clauses (A) or (B), a “Change in the Company Recommendation”), or (ii) cause or permit the Company or any of its Subsidiaries to enter into any acquisition agreement, merger agreement or other similar definitive agreement relating to any Competing Transaction (an “Alternative Acquisition Agreement”). Notwithstanding the foregoing, if at any time prior to the receipt of the Company Shareholder Approval, the Company has received an unsolicited, written, bona fide proposal or offer with respect to a Competing Transaction that did not arise or result from any breach of this Section 7.03, that is not withdrawn and that the Company Board (upon recommendation of the Special Committee) determines, in its good faith judgment (after having received the advice of a financial advisor of internationally recognized reputation and outside legal counsel) constitutes, or would reasonably be expected to lead to, a Superior Proposal, the Company Board (upon recommendation of the Special Committee) may, with respect to such Superior Proposal, make a Change in the Company Recommendation and/or authorize the Company to enter into an Alternative Acquisition Agreement with respect to such Superior ProposalPurchased Assets; provided, however, that the Company Board Sellers and their respective Representatives shall not be entitled permitted at all times to exercise its right respond to make a Change in the Company Recommendation any unsolicited inquiries or offers to authorize the Company to enter into an Alternative Acquisition Agreement pursuant to this Section 7.03(d) unless:
(1) the Company Board (upon recommendation purchase all or any part of the Special Committee) determines in its good faith judgment (after having received Purchased Assets and perform any and all other acts related thereto which are required under the advice of its financial advisor and outside legal counsel), that the failure to do so would violate its fiduciary duties to the Company and its shareholders under applicable Law;
(2) prior to effecting a Change in the Company Recommendation Bankruptcy Code or terminating this Agreement to enter into an Alternative Acquisition Agreement, the Company has provided written notice to Parent (a “Notice of Superior Proposal”) advising Parent that the Company Board has received a Superior Proposal promptly after the Company Board determines it has received a Superior Proposal, stating that the Company Board intends to make a Change in the Company Recommendation and the manner in which it intends to do so, specifying the information required to be included in any notice required to be delivered to Parent under Section 7.03(b) and including written evidence of the determination of the Company Board that the Company has received a Superior Proposal; and
(3) Parent does not, within five (5) Business Days of receipt of the Notice of Superior Proposal (the “Notice Period”), make an offer or proposal to revise the terms of this Agreement (any such offer, a “Revised Transaction Proposal”) in a manner that the Company Board determines in its good faith judgment, after having received the advice of its financial advisor and outside legal counsel, to be at least as favorable to the Company’s shareholders (other than the holders of the Excluded Shares) as such Superior Proposal; provided, however, that during the Notice Period the Company shall negotiate in good faith with Parent (to the extent Parent desires to negotiate) regarding any Revised Transaction Proposal; provided, further, that any amendment to the terms of such Superior Proposal during the Notice Period shall require a new written notice of the terms of such amended Superior Proposal from the Company and an additional Notice Period that satisfies this Section 7.03(d)(3).
(e) Notwithstanding anything in this Section 7.03 to the contrary, prior to obtaining the Company Shareholder Approval, if the Company Board determines, in its good faith judgment upon the recommendation of the Special Committee (after having received the advice of its financial advisor and outside legal counsel), other than in response to or in connection with a Competing Transaction, that failure to make a Change in the Company Recommendation would be inconsistent with its fiduciary duties under applicable Law, including supplying information relating to the Company Board may, upon Business and the recommendation assets of the Special CommitteeSellers to prospective purchasers and negotiating a Competing Bid. For the avoidance of doubt, effect a Change any statements made by the Sellers in the Company Recommendation; provided, that the Company has provided Parent at least five (5) Business Days’ prior written notice indicating that the Company Board intends to effect a Change Bidding Procedures Motion or in the Company Recommendation. Notwithstanding that the Company Board hearing in connection therewith shall have effected a Change in Company Recommendation pursuant to this Section 7.03(e), upon Parent’s written request, the Company shall convene Company Shareholders’ Meeting promptly and submit this Agreement to the holders of the Shares to obtain the Company Shareholder Approval at a duly convened Company Shareholders’ Meeting, in each case in accordance with the terms and conditions hereof.
(f) Nothing contained in this Section 7.03 shall be deemed to prohibit the Company from complying with its disclosure obligations under United States federal or state Law, or other applicable Laws, with regard to a Competing Transaction; provided, however, that if such disclosure includes a Change in the Company Recommendation or has the substantive effect of withdrawing or adversely modifying the Company Recommendation, such disclosure shall not be deemed to be a Change solicitation for purposes of this Agreement. Prior to the Sellers furnishing any non-public information to any Person in connection with an offer regarding the Company Recommendation sale or other disposition of all or any part of the Purchased Assets, SVCMC must enter into a customary confidentiality agreement with such Person on terms no less favorable to SVCMC than those contained in Section 8.6.
(c) Following the entry of the Bidding Procedures Order by the Bankruptcy Court and Parent until the Contemplated Transactions are consummated, the Sellers are permitted to cause their respective Representatives to market and Merger Sub initiate contact with, solicit or encourage submission of any inquiries, proposals or offers by, any Person (in addition to Purchaser and its Representatives) in connection with any sale or other disposition of all or any part of the Purchased Assets, alone or in connection with the sale or other disposition of any other asset of the Sellers. In addition, during such time period, the Sellers shall have the right responsibility and obligation to terminate this Agreement as set forth in Section 9.01(d) (it being understood that a statement by respond to any inquiries or offers to purchase all or any part of the Company that describes Purchased Assets and perform any and all other acts related thereto which are required under the Company’s receipt of a Competing Transaction Bankruptcy Code or other applicable law, including supplying information relating to the Business and the operation assets of this Agreement with respect thereto, or any “stop, look or listen” communication that contains only the information set forth in Rule 14d-9(f) under the Exchange Act shall not be deemed a Change in the Company Recommendation or be deemed Sellers to have the substantive effect of withdrawing or adversely modifying the Company Recommendation)prospective purchasers.
Appears in 1 contract
Samples: Asset Purchase Agreement
Competing Transaction. (a) Except as provided in Section 7.03(c), From the date of this Agreement until the Effective Time orentry of the U.S. Bidding Procedures Order, if earlier, and from the date of the conclusion of the Auction (as defined in the U.S. Bidding Procedures Order) until the Closing Date or termination of this Agreement in accordance with Article IXAgreement, the Company agrees that neither it any Seller nor any Affiliate of any Seller shall, directly or indirectly through any of its Subsidiaries nor any of their respective Representatives willofficers, and that it will cause each of its Subsidiaries and each of its and its Subsidiaries’ Representatives not todirectors, directly employees, agents, professional advisors or indirectlyother representatives (collectively, the “Representatives”), (i) solicit, initiate or knowingly encourage (including by way of furnishing nonpublic information), or knowingly take any other action engage in discussions or negotiations with respect to facilitate, any inquiries or the making of any proposal or offer from any Person (including without limitation other than the Purchaser or its affiliates) relating to in each case any proposal acquisition, divestiture, recapitalization, business combination or offer to reorganization of or involving all or a substantial part of the Company’s shareholdersbusiness and operations of the Business (a “Competing Transaction”), (ii) furnish any information with respect to, or that may reasonably be expected to lead toparticipate in, or assist, any Competing Transaction, (ii) enter into, maintain, continue effort or otherwise engage or participate in any discussions or negotiations with, or provide any non-public information or data concerning the Company or any Subsidiary to, attempt by any Person to do or entity in furtherance of such inquiries or to obtain a proposal or offer with respect to a Competing Transaction or any proposal or offer that may reasonably be expected to lead to a Competing Transactionseek the foregoing, (iii) agree to, approve, endorse, recommend, execute, enter into execute any letter of intent or consummate any Competing Transaction or any proposal or offer that may reasonably be expected to lead to agreement providing for a Competing Transaction, or that requires the Company to abandon this Agreement or the Merger (other than any Acceptable Confidentiality Agreement), (iv) grant seek or support Bankruptcy Court approval of a motion or Order inconsistent with the transactions contemplated herein (provided, however, that nothing contained herein shall prohibit the Sellers from providing any waiverPerson with the Bidding Procedures and related documents, amendment answering questions about the Bidding Procedures or release under any standstill or confidentiality agreement or Takeover Statutes (and the Company shall promptly take all actions reasonably necessary to terminate or cause to be terminated any such waiver previously granted with respect to any provision of any such confidentiality or standstill agreement or Takeover Statute), or (v) resolve, propose or agree, or authorize or permit any Representative, to do any of the foregoing. The Company shall, and shall cause its Subsidiaries and its Subsidiaries’ Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Persons conducted prior to announcing the execution of this Agreement by the Company, any of its Subsidiaries or any of their Representatives with respect to a Competing Transaction. The Company shall promptly request each Person that has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring (whether by merger, acquisition of share or assets or otherwise) the Company or any of its Subsidiaries, to return (or if permitted by the applicable confidentiality agreement, destroy) all information required to be returned (or, if applicable, destroyed) by such Person under the terms of the applicable confidentiality agreement.
(b) The Company shall notify Parent as promptly as practicable (and in any event within 48 hours after the Company attains knowledge thereof), orally and in writing, after the receipt by the Company, any of its Subsidiaries or any of their respective Representatives of any proposal or offer (or any amendment thereto) with respect to a Competing Transaction. Such notice shall indicate the identity of the Person making such proposal or offer and the material terms and conditions of such proposal or offer, accompanied by, if applicable, copies of any written materials received by the Company in connection with any of the foregoing. The Company agrees that it shall keep Parent informed, on a reasonably prompt basis (at least within 48 hours of occurrence of any material changes, developments, discussions or negotiations), of the status and material details of (including discussions with respect to or amendments or proposed amendments to) any such proposal or offer.
(c) Notwithstanding anything to the contrary in Section 7.03(a), at any time prior to the receipt of the Company Shareholder Approval, the Company may, subject to compliance with this Section 7.03(c) and acting under the direction of the Special Committee, furnish information to, and enter into discussions or negotiations with, a Person who has made an unsolicited, written, bona fide proposal or offer with respect to a Competing Transaction that did not arise or result from any breach of this Section 7.03(a), if, prior to furnishing such information and entering into such discussions, the Company Board has (i) determined, in its good faith judgment (after having received the advice of a financial advisor of internationally recognized reputation and outside legal counsel) that (A) such proposal or offer constitutes, or would reasonably be expected to lead to, a Superior Proposal and (B) the failure to furnish such information to, or enter into such discussions with, the Person who made such proposal or offer would violate the Company Board’s fiduciary duties to the Company and its shareholders under applicable Law, (ii) provided written notice to Parent of its intent to furnish information or enter into discussions with such Person at least three (3) Business Days prior to taking any such action, and (iii) obtained from such Person an Acceptable Confidentiality Agreement (it being understood that an Acceptable Confidentiality Agreement and any related agreements shall not include any provision granting such Person exclusive rights to negotiate with the Company or having the effect of prohibiting the Company from satisfying its obligations under this Agreement) and, immediately upon its execution, delivered to Parent a copy of such Acceptable Confidentiality Agreement; provided, that the Company shall promptly make available to Parent any material information concerning the Company and its Subsidiaries that is provided to any such Person and that was not previously made available to Parent or its Representatives.
(d) Except as set forth in this Section 7.03(d) or Section 7.03(e), neither the Company Board nor any committee thereof shall (i) (A) withhold, withdraw (or not continue to make), qualify or modify (or publicly propose or resolve to withhold, withdraw (or not continue to make), qualify or modify), in a manner adverse to Parent or Merger Sub or the Company Recommendation with respect to the Merger, or (B) adopt, approve or recommend or propose to adopt, approve or recommend (publicly or otherwise) any Competing Transaction (any action described in clauses (A) or (B), a “Change in the Company Recommendation”), or (ii) cause or permit the Company or any of its Subsidiaries to enter into any acquisition agreement, merger agreement or other similar definitive agreement relating to any Competing Transaction (an “Alternative Acquisition Agreement”Auction). Notwithstanding the foregoing, if at any time prior to from the receipt date of this Agreement until the entry of the Company Shareholder ApprovalU.S. Bidding Procedures Order, the Company has received Sellers may provide continued access to written due diligence materials about the Business in an unsolicitedelectronic data room (including written responses to requests for information made after the date hereof), writtento only such Person or Persons that (A) have access to such electronic data room as of the date hereof and (B) have satisfied the requirements of paragraph (a) of the “Participation Requirements” of the U.S. Bidding Procedures Order within ten (10) Business Days from the date hereof (it being understood that, bona fide proposal or offer during such ten (10) Business Day period, the Sellers will be allowed to (x) request such Persons to enter into amendments to their existing confidentiality agreements in order to render them compliant with respect to the requirements of the U.S. Bidding Procedures, (y) discuss and negotiate such amendments with those Persons and (z) execute such amendments, and each such action shall not constitute a Competing Transaction that did not arise or result from any breach of this Section 7.03, that is not withdrawn and that the Company Board (upon recommendation of the Special Committee) determines, in its good faith judgment (after having received the advice of a financial advisor of internationally recognized reputation and outside legal counsel) constitutes, or would reasonably be expected to lead to, a Superior Proposal, the Company Board (upon recommendation of the Special Committee) may, with respect to such Superior Proposal, make a Change in the Company Recommendation and/or authorize the Company to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal5.29); provided, however, that the Company Board shall not be entitled Sellers must provide the Purchaser at least equivalent access to exercise its right all such written due diligence materials. Without prejudice to make a Change any other methods or actions that may result in the Company Recommendation or to authorize the Company to enter into an Alternative Acquisition Agreement pursuant to cure of any breach of this Section 7.03(d5.29, the Parties acknowledge and agree that in the event that any officer or other employee of any Seller acting alone (without the assistance of outside advisors) unless:
in violation of a corporate policy approved by the board of directors of NNC takes an action that constitutes a breach of clause (1i) of this Section 5.29 but does not constitute a breach of any other clause of this Section 5.29, such breach shall be deemed cured in the Company Board (upon recommendation event such action ceases and one or more of the Special CommitteeSellers notifies the counterparty or counterparties to the potential Competing Transaction in writing that the Sellers will not undertake such Competing Transaction, in each case no later than the fifth (5th) determines in its good faith judgment day after the Sellers become aware of such breach (after having received for such purposes excluding the advice knowledge of its financial advisor and outside legal counselthe employee or officer whose action constitutes such breach), provided that such action that constituted the failure to do so would violate its fiduciary duties to the Company and its shareholders under applicable Law;
(2) prior to effecting a Change in the Company Recommendation or terminating this Agreement to enter into an Alternative Acquisition Agreement, the Company has provided written notice to Parent (a “Notice of Superior Proposal”) advising Parent that the Company Board has received a Superior Proposal promptly after the Company Board determines it has received a Superior Proposal, stating that the Company Board intends to make a Change in the Company Recommendation and the manner in which it intends to do so, specifying the information required to be included in any notice required to be delivered to Parent under Section 7.03(b) and including written evidence of the determination of the Company Board that the Company has received a Superior Proposal; and
(3) Parent does not, within five (5) Business Days of receipt of the Notice of Superior Proposal (the “Notice Period”), make an offer or proposal to revise the terms of this Agreement (any such offer, a “Revised Transaction Proposal”) in a manner that the Company Board determines in its good faith judgment, after having received the advice of its financial advisor and outside legal counsel, to be at least as favorable to the Company’s shareholders (other than the holders of the Excluded Shares) as such Superior Proposal; provided, however, that during the Notice Period the Company shall negotiate in good faith with Parent (to the extent Parent desires to negotiate) breach did not involve substantive negotiations regarding any Revised Transaction Proposal; provided, further, that any amendment to the terms of such Superior Proposal during the Notice Period shall require a new written notice of the terms of such amended Superior Proposal from the Company and an additional Notice Period that satisfies this Section 7.03(d)(3).
(e) Notwithstanding anything in this Section 7.03 to the contrary, prior to obtaining the Company Shareholder Approval, if the Company Board determines, in its good faith judgment upon the recommendation of the Special Committee (after having received the advice of its financial advisor and outside legal counsel), other than in response to or in connection with a Competing Transaction, that failure to make a Change in the Company Recommendation would be inconsistent with its fiduciary duties under applicable Law, the Company Board may, upon the recommendation of the Special Committee, effect a Change in the Company Recommendation; provided, that the Company has provided Parent at least five (5) Business Days’ prior written notice indicating that the Company Board intends to effect a Change in the Company Recommendation. Notwithstanding that the Company Board shall have effected a Change in Company Recommendation pursuant to this Section 7.03(e), upon Parent’s written request, the Company shall convene Company Shareholders’ Meeting promptly and submit this Agreement to the holders of the Shares to obtain the Company Shareholder Approval at a duly convened Company Shareholders’ Meeting, in each case in accordance with the terms and conditions hereof.
(f) Nothing contained in this Section 7.03 shall be deemed to prohibit the Company from complying with its disclosure obligations under United States federal or state Law, or other applicable Laws, with regard to a Competing Transaction; provided, however, that if such disclosure includes a Change in the Company Recommendation or has the substantive effect of withdrawing or adversely modifying the Company Recommendation, such disclosure shall be deemed to be a Change in the Company Recommendation and Parent and Merger Sub shall have the right to terminate this Agreement as set forth in Section 9.01(d) (it being understood that a statement by the Company that describes the Company’s receipt of a Competing Transaction and the operation of this Agreement with respect thereto, or any “stop, look or listen” communication that contains only the information set forth in Rule 14d-9(f) under the Exchange Act shall not be deemed a Change in the Company Recommendation or be deemed to have the substantive effect of withdrawing or adversely modifying the Company Recommendation).
Appears in 1 contract
Samples: Asset and Share Sale Agreement (Nortel Networks LTD)
Competing Transaction. (a) Except as provided in Section 7.03(c), This Agreement is subject to approval by the Bankruptcy Court and the consideration by the Company and the Bankruptcy Court of higher or otherwise better competing bids. From and after the date hereof until the Effective Time or, if earlier, earlier of (i) the entry of the Bid Procedures Order and (ii) the termination of this Agreement in accordance with Article IX(the “Exclusivity Period”), neither the Company agrees that neither it nor any Seller Subsidiary or any of its Subsidiaries nor any of their respective Representatives will, and that it will cause each of its Subsidiaries and each of its and its Subsidiaries’ Representatives not to, representatives or Affiliates shall directly or indirectly, indirectly (ia) solicitnegotiate, initiate or knowingly encourage (including by way of furnishing nonpublic information), or knowingly take any other action to facilitate, any inquiries or the making of any proposal or offer (including without limitation any proposal or offer to the Company’s shareholders) with respect to, or that may reasonably be expected to lead to, any Competing Transaction, (ii) enter into, maintain, continue or otherwise engage or participate in any discussions or negotiations contact with, or provide solicit or encourage submission of any non-public information inquiries, proposals or data concerning the Company or any Subsidiary tooffers by, any Person or entity in furtherance of such inquiries or to obtain a proposal or offer with respect to a Competing Transaction or any proposal or offer that may reasonably be expected to lead to a Competing Transaction, (iii) agree to, approve, endorse, recommend, execute, enter into or consummate any Competing Transaction or any proposal or offer that may reasonably be expected to lead to a Competing Transaction, or that requires the Company to abandon this Agreement or the Merger (other than any Acceptable Confidentiality Agreement)Purchaser and its affiliates, (ivagents and representatives) grant any waiver, amendment or release under any standstill or confidentiality agreement or Takeover Statutes (and the Company shall promptly take all actions reasonably necessary to terminate or cause to be terminated any such waiver previously granted with respect to any provision transaction (or series of any such confidentiality or standstill agreement or Takeover Statutetransactions), whether direct or (v) resolveindirect, propose concerning a sale, financing, recapitalization, liquidation or agree, or authorize or permit any Representative, to do any other disposition of the foregoing. The Company shall, and shall cause its Subsidiaries and its Subsidiaries’ Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Persons conducted prior to the execution of this Agreement by the Company, any of its Subsidiaries Seller Subsidiary or any of their Representatives with respect to a Competing Transaction. The Company shall promptly request each Person that has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring portion thereof (whether by merger, acquisition sale of share or assets or stock, or otherwise) the Company or any of its Subsidiaries, to return (or if permitted by the applicable confidentiality agreement, destroy) all information required to be returned (or, if applicable, destroyed) by such Person under the terms of the applicable confidentiality agreement.
(b) The Company shall notify Parent as promptly as practicable (and in any event within 48 hours after the Company attains knowledge thereof), orally and in writing, after the receipt by consummation of which would be substantially inconsistent with the Company, any of its Subsidiaries or any of their respective Representatives of any proposal or offer Contemplated Transactions (or any amendment thereto) with respect to a “Competing Transaction. Such notice shall indicate the identity of the Person making such proposal or offer and the material terms and conditions of such proposal or offer, accompanied by, if applicable, copies of any written materials received by the Company in connection with any of the foregoing. The Company agrees that it shall keep Parent informed, on a reasonably prompt basis (at least within 48 hours of occurrence of any material changes, developments, discussions or negotiations), of the status and material details of (including discussions with respect to or amendments or proposed amendments to) any such proposal or offer.
(c) Notwithstanding anything to the contrary in Section 7.03(a), at any time prior to the receipt of the Company Shareholder Approval, the Company may, subject to compliance with this Section 7.03(c) and acting under the direction of the Special Committee, furnish information to, and enter into discussions or negotiations with, a Person who has made an unsolicited, written, bona fide proposal or offer with respect to a Competing Transaction that did not arise or result from any breach of this Section 7.03(a), if, prior to furnishing such information and entering into such discussions, the Company Board has (i) determined, in its good faith judgment (after having received the advice of a financial advisor of internationally recognized reputation and outside legal counsel) that (A) such proposal or offer constitutes, or would reasonably be expected to lead to, a Superior Proposal and (B) the failure to furnish such information to, or enter into such discussions with, the Person who made such proposal or offer would violate the Company Board’s fiduciary duties to the Company and its shareholders under applicable Law, (ii) provided written notice to Parent of its intent to furnish information or enter into discussions with such Person at least three (3) Business Days prior to taking any such action, and (iii) obtained from such Person an Acceptable Confidentiality Agreement (it being understood that an Acceptable Confidentiality Agreement and any related agreements shall not include any provision granting such Person exclusive rights to negotiate with the Company or having the effect of prohibiting the Company from satisfying its obligations under this Agreement) and, immediately upon its execution, delivered to Parent a copy of such Acceptable Confidentiality Agreement; provided, that the Company shall promptly make available to Parent any material information concerning the Company and its Subsidiaries that is provided to any such Person and that was not previously made available to Parent or its Representatives.
(d) Except as set forth in this Section 7.03(d) or Section 7.03(e), neither the Company Board nor any committee thereof shall (i) (A) withhold, withdraw (or not continue to make), qualify or modify (or publicly propose or resolve to withhold, withdraw (or not continue to make), qualify or modify), in a manner adverse to Parent or Merger Sub or the Company Recommendation with respect to the Merger, or (B) adopt, approve or recommend or propose to adopt, approve or recommend (publicly or otherwise) any Competing Transaction (any action described in clauses (A) or (B), a “Change in the Company Recommendation”), or (iib) cause provide any confidential information regarding the Company, any Seller Subsidiary, the STB Business or permit any of the Purchased Assets to any Person other than the Purchaser, except to the extent expressly permitted herein. During the Exclusivity Period, the Company will promptly (and in all events within 24 hours) inform and provide a summary to Purchaser of any other offer, proposal or expression of interest for the Company, any Seller Subsidiary or any portion thereof that it or any of its Subsidiaries affiliates or representatives may receive. Nothing contained herein shall be construed to enter into any acquisition agreementprohibit the Company and their representatives from soliciting, merger agreement considering, negotiating, agreeing to or other similar definitive agreement relating to otherwise taking action in furtherance of, any Competing Transaction (an “Alternative Acquisition Agreement”). Notwithstanding after the foregoing, if at any time prior to the receipt entry of the Company Shareholder Approval, the Company has received an unsolicited, written, bona fide proposal or offer with respect to a Competing Transaction that did not arise or result from any breach of this Section 7.03, that is not withdrawn and that the Company Board (upon recommendation of the Special Committee) determines, in its good faith judgment (after having received the advice of a financial advisor of internationally recognized reputation and outside legal counsel) constitutes, or would reasonably be expected to lead to, a Superior Proposal, the Company Board (upon recommendation of the Special Committee) may, with respect to such Superior Proposal, make a Change in the Company Recommendation and/or authorize the Company to enter into an Alternative Acquisition Agreement with respect to such Superior ProposalBid Procedures Order; provided, however, that neither the Company Board shall not be entitled to exercise its right to make a Change in the Company Recommendation or to authorize the Company to enter into an Alternative Acquisition Agreement pursuant to this Section 7.03(d) unless:
(1) the Company Board (upon recommendation of the Special Committee) determines in its good faith judgment (after having received the advice nor any of its financial advisor and outside legal counsel), that the failure Affiliates or their respective representatives shall provide any Confidential Information to do so would violate its fiduciary duties to the Company and its shareholders under applicable Law;
(2) prior to effecting a Change in the Company Recommendation or terminating this Agreement to enter into an Alternative Acquisition Agreement, the Company has provided written notice to Parent (a “Notice any strategic bidders without appropriate assurances of Superior Proposal”) advising Parent that the Company Board has received a Superior Proposal promptly after the Company Board determines it has received a Superior Proposal, stating that the Company Board intends to make a Change in the Company Recommendation and the manner in which it intends to do so, specifying the information required to be included in any notice required to be delivered to Parent under Section 7.03(b) and including written evidence of the determination of the Company Board that the Company has received a Superior Proposal; and
(3) Parent does not, within five (5) Business Days of receipt of the Notice of Superior Proposal (the “Notice Period”), make an offer or proposal to revise the terms of this Agreement (any such offer, a “Revised Transaction Proposal”) in a manner that the Company Board determines in its good faith judgment, after having received the advice of its financial advisor and outside legal counsel, to be at least as favorable to the Company’s shareholders (other than the holders of the Excluded Shares) as such Superior Proposal; provided, however, that during the Notice Period the Company shall negotiate in good faith with Parent (to the extent Parent desires to negotiate) regarding any Revised Transaction Proposal; provided, further, that any amendment to the terms of such Superior Proposal during the Notice Period shall require a new written notice of the terms of such amended Superior Proposal from the Company and an additional Notice Period that satisfies this Section 7.03(d)(3)confidentiality.
(e) Notwithstanding anything in this Section 7.03 to the contrary, prior to obtaining the Company Shareholder Approval, if the Company Board determines, in its good faith judgment upon the recommendation of the Special Committee (after having received the advice of its financial advisor and outside legal counsel), other than in response to or in connection with a Competing Transaction, that failure to make a Change in the Company Recommendation would be inconsistent with its fiduciary duties under applicable Law, the Company Board may, upon the recommendation of the Special Committee, effect a Change in the Company Recommendation; provided, that the Company has provided Parent at least five (5) Business Days’ prior written notice indicating that the Company Board intends to effect a Change in the Company Recommendation. Notwithstanding that the Company Board shall have effected a Change in Company Recommendation pursuant to this Section 7.03(e), upon Parent’s written request, the Company shall convene Company Shareholders’ Meeting promptly and submit this Agreement to the holders of the Shares to obtain the Company Shareholder Approval at a duly convened Company Shareholders’ Meeting, in each case in accordance with the terms and conditions hereof.
(f) Nothing contained in this Section 7.03 shall be deemed to prohibit the Company from complying with its disclosure obligations under United States federal or state Law, or other applicable Laws, with regard to a Competing Transaction; provided, however, that if such disclosure includes a Change in the Company Recommendation or has the substantive effect of withdrawing or adversely modifying the Company Recommendation, such disclosure shall be deemed to be a Change in the Company Recommendation and Parent and Merger Sub shall have the right to terminate this Agreement as set forth in Section 9.01(d) (it being understood that a statement by the Company that describes the Company’s receipt of a Competing Transaction and the operation of this Agreement with respect thereto, or any “stop, look or listen” communication that contains only the information set forth in Rule 14d-9(f) under the Exchange Act shall not be deemed a Change in the Company Recommendation or be deemed to have the substantive effect of withdrawing or adversely modifying the Company Recommendation).
Appears in 1 contract
Samples: Asset Purchase Agreement (Trident Microsystems Inc)
Competing Transaction. (a) Except as provided in Section 7.03(c), From the date of this Agreement until the Effective Time orentry of the U.S. Bidding Procedures Order, if earlier, and from the date of the conclusion of the Auction (as defined in the U.S. Bidding Procedures Order) until the Closing Date or termination of this Agreement in accordance with Article IXAgreement, the Company agrees that neither it any Seller nor any Affiliate of any Seller shall, directly or indirectly through any of its Subsidiaries nor any of their respective Representatives willofficers, and that it will cause each of its Subsidiaries and each of its and its Subsidiaries’ Representatives not todirectors, directly employees, agents, professional advisors or indirectlyother representatives (collectively, the “Representatives”), (i) solicit, initiate or knowingly encourage (including by way of furnishing nonpublic information), or knowingly take any other action engage in discussions or negotiations with respect to facilitate, any inquiries or the making of any proposal or offer from any Person (including without limitation other than the Purchaser or its affiliates) relating to in each case any proposal or offer to the Company’s shareholderstransaction that would be considered an Alternative Transaction (a “Competing Transaction”), (ii) furnish any information with respect to, or that may reasonably be expected to lead toparticipate in, or assist, any Competing Transaction, (ii) enter into, maintain, continue effort or otherwise engage or participate in any discussions or negotiations with, or provide any non-public information or data concerning the Company or any Subsidiary to, attempt by any Person to do or entity in furtherance of such inquiries or to obtain a proposal or offer with respect to a Competing Transaction or any proposal or offer that may reasonably be expected to lead to a Competing Transactionseek the foregoing, (iii) agree to, approve, endorse, recommend, execute, enter into execute any letter of intent or consummate any Competing Transaction or any proposal or offer that may reasonably be expected to lead to agreement providing for a Competing Transaction, or that requires the Company to abandon this Agreement or the Merger (other than any Acceptable Confidentiality Agreement), (iv) grant seek or support Bankruptcy Court approval of a motion or Order inconsistent with the transactions contemplated herein (provided, however, that nothing contained herein shall prohibit the Sellers from providing any waiverPerson with the Bidding Procedures and related documents, amendment answering questions about the Bidding Procedures or release under any standstill or confidentiality agreement or Takeover Statutes (and the Company shall promptly take all actions reasonably necessary to terminate or cause to be terminated any such waiver previously granted with respect to any provision of any such confidentiality or standstill agreement or Takeover Statute), or (v) resolve, propose or agree, or authorize or permit any Representative, to do any of the foregoing. The Company shall, and shall cause its Subsidiaries and its Subsidiaries’ Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Persons conducted prior to announcing the execution of this Agreement by the Company, any of its Subsidiaries or any of their Representatives with respect to a Competing Transaction. The Company shall promptly request each Person that has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring (whether by merger, acquisition of share or assets or otherwise) the Company or any of its Subsidiaries, to return (or if permitted by the applicable confidentiality agreement, destroy) all information required to be returned (or, if applicable, destroyed) by such Person under the terms of the applicable confidentiality agreement.
(b) The Company shall notify Parent as promptly as practicable (and in any event within 48 hours after the Company attains knowledge thereof), orally and in writing, after the receipt by the Company, any of its Subsidiaries or any of their respective Representatives of any proposal or offer (or any amendment thereto) with respect to a Competing Transaction. Such notice shall indicate the identity of the Person making such proposal or offer and the material terms and conditions of such proposal or offer, accompanied by, if applicable, copies of any written materials received by the Company in connection with any of the foregoing. The Company agrees that it shall keep Parent informed, on a reasonably prompt basis (at least within 48 hours of occurrence of any material changes, developments, discussions or negotiations), of the status and material details of (including discussions with respect to or amendments or proposed amendments to) any such proposal or offer.
(c) Notwithstanding anything to the contrary in Section 7.03(a), at any time prior to the receipt of the Company Shareholder Approval, the Company may, subject to compliance with this Section 7.03(c) and acting under the direction of the Special Committee, furnish information to, and enter into discussions or negotiations with, a Person who has made an unsolicited, written, bona fide proposal or offer with respect to a Competing Transaction that did not arise or result from any breach of this Section 7.03(a), if, prior to furnishing such information and entering into such discussions, the Company Board has (i) determined, in its good faith judgment (after having received the advice of a financial advisor of internationally recognized reputation and outside legal counsel) that (A) such proposal or offer constitutes, or would reasonably be expected to lead to, a Superior Proposal and (B) the failure to furnish such information to, or enter into such discussions with, the Person who made such proposal or offer would violate the Company Board’s fiduciary duties to the Company and its shareholders under applicable Law, (ii) provided written notice to Parent of its intent to furnish information or enter into discussions with such Person at least three (3) Business Days prior to taking any such action, and (iii) obtained from such Person an Acceptable Confidentiality Agreement (it being understood that an Acceptable Confidentiality Agreement and any related agreements shall not include any provision granting such Person exclusive rights to negotiate with the Company or having the effect of prohibiting the Company from satisfying its obligations under this Agreement) and, immediately upon its execution, delivered to Parent a copy of such Acceptable Confidentiality Agreement; provided, that the Company shall promptly make available to Parent any material information concerning the Company and its Subsidiaries that is provided to any such Person and that was not previously made available to Parent or its Representatives.
(d) Except as set forth in this Section 7.03(d) or Section 7.03(e), neither the Company Board nor any committee thereof shall (i) (A) withhold, withdraw (or not continue to make), qualify or modify (or publicly propose or resolve to withhold, withdraw (or not continue to make), qualify or modify), in a manner adverse to Parent or Merger Sub or the Company Recommendation with respect to the Merger, or (B) adopt, approve or recommend or propose to adopt, approve or recommend (publicly or otherwise) any Competing Transaction (any action described in clauses (A) or (B), a “Change in the Company Recommendation”), or (ii) cause or permit the Company or any of its Subsidiaries to enter into any acquisition agreement, merger agreement or other similar definitive agreement relating to any Competing Transaction (an “Alternative Acquisition Agreement”Auction). Notwithstanding the foregoing, if at any time prior to from the receipt date of this Agreement until the entry of the Company Shareholder ApprovalU.S. Bidding Procedures Order, the Company has received Sellers may provide continued access to written due diligence materials about the Business in an unsolicitedelectronic data room (including written responses to requests for information made after the date hereof), writtento only such Person or Persons (and their representatives) that (A) have access to such electronic data room as of the date hereof and (B) have satisfied the requirements of paragraph (a) of the “Participation Requirements” of the U.S. Bidding Procedures Order within ten (10) Business Days from the date hereof (it being understood that, bona fide proposal or offer during such ten (10) Business Day period, the Sellers will be allowed to (x) request such Persons to enter into amendments to their existing confidentiality agreements in order to render them compliant with respect to the requirements of the U.S. Bidding Procedures, (y) discuss and negotiate such amendments with those Persons and (z) execute such amendments, and each such action shall not constitute a Competing Transaction that did not arise or result from any breach of this Section 7.03, that is not withdrawn and that the Company Board (upon recommendation of the Special Committee) determines, in its good faith judgment (after having received the advice of a financial advisor of internationally recognized reputation and outside legal counsel) constitutes, or would reasonably be expected to lead to, a Superior Proposal, the Company Board (upon recommendation of the Special Committee) may, with respect to such Superior Proposal, make a Change in the Company Recommendation and/or authorize the Company to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal5.29); provided, however, that the Company Board shall not be entitled Sellers must provide the Purchaser at least equivalent access to exercise its right all such written due diligence materials. Without prejudice to make a Change any other methods or actions that may result in the Company Recommendation or to authorize the Company to enter into an Alternative Acquisition Agreement pursuant to cure of any breach of this Section 7.03(d5.29, the Parties acknowledge and agree that in the event that any officer or other employee of any Seller acting alone (without the assistance of outside advisors) unless:
in violation of a corporate policy approved by the board of directors of NNC takes an action that constitutes a breach of clause (1i) of this Section 5.29 but does not constitute a breach of any other clause of this Section 5.29, such breach shall be deemed cured in the Company Board (upon recommendation event such action ceases and one or more of the Special CommitteeSellers notifies the counterparty or counterparties to the potential Competing Transaction in writing that the Sellers will not undertake such Competing Transaction, in each case no later than the fifth (5th) determines in its good faith judgment day after the Sellers become aware of such breach (after having received for such purposes excluding the advice knowledge of its financial advisor and outside legal counselthe employee or officer whose action constitutes such breach), provided that such action that constituted the failure to do so would violate its fiduciary duties to the Company and its shareholders under applicable Law;
(2) prior to effecting a Change in the Company Recommendation or terminating this Agreement to enter into an Alternative Acquisition Agreement, the Company has provided written notice to Parent (a “Notice of Superior Proposal”) advising Parent that the Company Board has received a Superior Proposal promptly after the Company Board determines it has received a Superior Proposal, stating that the Company Board intends to make a Change in the Company Recommendation and the manner in which it intends to do so, specifying the information required to be included in any notice required to be delivered to Parent under Section 7.03(b) and including written evidence of the determination of the Company Board that the Company has received a Superior Proposal; and
(3) Parent does not, within five (5) Business Days of receipt of the Notice of Superior Proposal (the “Notice Period”), make an offer or proposal to revise the terms of this Agreement (any such offer, a “Revised Transaction Proposal”) in a manner that the Company Board determines in its good faith judgment, after having received the advice of its financial advisor and outside legal counsel, to be at least as favorable to the Company’s shareholders (other than the holders of the Excluded Shares) as such Superior Proposal; provided, however, that during the Notice Period the Company shall negotiate in good faith with Parent (to the extent Parent desires to negotiate) breach did not involve substantive negotiations regarding any Revised Transaction Proposal; provided, further, that any amendment to the terms of such Superior Proposal during the Notice Period shall require a new written notice of the terms of such amended Superior Proposal from the Company and an additional Notice Period that satisfies this Section 7.03(d)(3).
(e) Notwithstanding anything in this Section 7.03 to the contrary, prior to obtaining the Company Shareholder Approval, if the Company Board determines, in its good faith judgment upon the recommendation of the Special Committee (after having received the advice of its financial advisor and outside legal counsel), other than in response to or in connection with a Competing Transaction, that failure to make a Change in the Company Recommendation would be inconsistent with its fiduciary duties under applicable Law, the Company Board may, upon the recommendation of the Special Committee, effect a Change in the Company Recommendation; provided, that the Company has provided Parent at least five (5) Business Days’ prior written notice indicating that the Company Board intends to effect a Change in the Company Recommendation. Notwithstanding that the Company Board shall have effected a Change in Company Recommendation pursuant to this Section 7.03(e), upon Parent’s written request, the Company shall convene Company Shareholders’ Meeting promptly and submit this Agreement to the holders of the Shares to obtain the Company Shareholder Approval at a duly convened Company Shareholders’ Meeting, in each case in accordance with the terms and conditions hereof.
(f) Nothing contained in this Section 7.03 shall be deemed to prohibit the Company from complying with its disclosure obligations under United States federal or state Law, or other applicable Laws, with regard to a Competing Transaction; provided, however, that if such disclosure includes a Change in the Company Recommendation or has the substantive effect of withdrawing or adversely modifying the Company Recommendation, such disclosure shall be deemed to be a Change in the Company Recommendation and Parent and Merger Sub shall have the right to terminate this Agreement as set forth in Section 9.01(d) (it being understood that a statement by the Company that describes the Company’s receipt of a Competing Transaction and the operation of this Agreement with respect thereto, or any “stop, look or listen” communication that contains only the information set forth in Rule 14d-9(f) under the Exchange Act shall not be deemed a Change in the Company Recommendation or be deemed to have the substantive effect of withdrawing or adversely modifying the Company Recommendation).
Appears in 1 contract
