Go-Shop; No Solicitation. (a) Notwithstanding anything to the contrary contained in this Agreement, during the period beginning on the date of this Agreement and continuing until 11:59 p.m. (Eastern time) on the twenty-first (21st) calendar day after the date of this Agreement (the "Go-Shop Period"), the Company and its Subsidiaries and their respective directors, officers, employees, investment bankers, attorneys, accountants and other advisors or representatives (collectively, "Representatives") shall have the right to: (i) initiate, solicit and encourage any inquiry or the making of any proposals or offers that constitute Acquisition Proposals, including by way of providing access to non-public information to any Person pursuant to a confidentiality agreement that constitutes an Acceptable Confidentiality Agreement; provided that the Company shall promptly (and in any event within twenty-four (24) hours thereafter) make available to Parent and Merger Sub any material non-public information concerning the Company or its Subsidiaries that the Company provides to any Person given such access that was not previously made available to Parent or Merger Sub, and (ii) engage or enter into or otherwise participate in any discussions or negotiations with any Persons or groups of Persons with respect to any Acquisition Proposals or otherwise cooperate with or assist or participate in, or facilitate any such inquiries, proposals, discussions or negotiations or any effort or attempt to make any Acquisition Proposals. Within one (1) Business Day following the conclusion of the Go-Shop Period, the Company shall notify Parent of the number of Excluded Parties and provide Parent with a written summary of the material terms and conditions of any Acquisition Proposal received from any Excluded Party (which material terms and conditions shall include the identity of the Person or group of Persons making the Acquisition Proposal). (b) Except as expressly permitted by this Section 6.4 and except as may relate to any Excluded Party, the Company and its Subsidiaries and their respective officers and directors shall, and the Company shall use its reasonable best efforts to instruct and cause its and its Subsidiaries' other Representatives to, (i) at 12:00 a.m. on the twenty-second (22nd) calendar day after the date of this Agreement (the "No-Shop Period Start Date") immediately cease any discussions or negotiations with any Persons that may be ongoing with respect to an Acquisition Proposal, and (ii) from the No-Shop Period Start Date until the earlier of the Effective Time and the termination of this Agreement in accordance with Article 10, the Company shall not, and shall cause its Subsidiaries not to, and shall not authorize or permit its and its Subsidiaries' Representatives to, directly or indirectly, solicit, initiate or knowingly take any action to facilitate or encourage the submission of any Acquisition Proposal or the making of any proposal that could reasonably be expected to lead to any Acquisition Proposal, or, subject to Section 6.4(c), (1) conduct or engage in any discussions or negotiations with, disclose any non-public information relating to the Company or any of its Subsidiaries to, afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, or knowingly assist, participate in, facilitate or encourage any effort by, any third party that is seeking to make, or has made, any Acquisition Proposal, (2) (A) amend or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries or (B) approve any transaction under, or any third party becoming an "interested stockholder" under, Section 78.423 of Nevada Law, or (3) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Acquisition Proposal (each, a "Company Acquisition Agreement"). Subject to Section 6.4(c), neither the Company Board nor any committee thereof shall fail to make, withdraw, amend, modify or materially qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, or recommend an Acquisition Proposal, or make any public statement inconsistent with the Company Board Recommendation, or resolve or agree to take any of the foregoing actions (any of the foregoing, an "Adverse Recommendation Change"). The Company shall, and shall cause its Subsidiaries to cease immediately and cause to be terminated, and shall not authorize or knowingly permit any of its or their Representatives to continue, any and all existing activities, discussions or negotiations, if any, with any third party conducted prior to the date hereof with respect to any Acquisition Proposal. (c) Notwithstanding Section 6.4(a), at any time following the No-Shop Period Start Date and prior to the Acceptance Date, the Company Board, directly or indirectly through any Representative, may, subject to Section 6.4(d) (i) participate in negotiations or discussions with any third party that has made (and not withdrawn) a bona fide, unsolicited Acquisition Proposal in writing that the Company Board believes in good faith, after consultation with outside legal counsel and the Company Financial Advisor, constitutes or would reasonably be expected to result in a Superior Proposal, (ii) thereafter furnish to such third party non-public information relating to the Company or any of its Subsidiaries pursuant to an executed confidentiality agreement that constitutes an Acceptable Confidentiality Agreement (a copy of which confidentiality agreement shall be promptly (in all events within twenty-four (24) hours) provided for informational purposes only to Parent), (iii) following receipt of and on account of a Superior Proposal, make an Adverse Recommendation Change, and/or (iv) take any action that any court of competent jurisdiction orders the Company to take (which order remains unstayed), but in each case referred to in the foregoing clauses (i) through (iv), only if the Company Board determines in good faith, after consultation with outside legal counsel, that the failure to take such action would reasonably be expected to cause the Company Board to be in breach of its fiduciary duties under Nevada Law. Nothing contained herein shall prevent the Company Board from disclosing to the Company's stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act with regard to an Acquisition Proposal, if the Company determines, after consultation with outside legal counsel, that failure to disclose such position would constitute a violation of Applicable Law. For the avoidance of doubt, notwithstanding the occurrence of the No-Shop Period Start Date, the Company may continue to engage in the activities described in Section 6.4(a) with respect to any Excluded Party and the restrictions in Section 6.4(b) shall not apply with respect thereto. (d) The Company Board shall not take any of the actions referred to in clauses (i) through (iv) of Section 6.4(c) unless the Company shall have delivered to Parent a prior written notice advising Parent that it intends to take such action. The Company shall notify Parent promptly (but in no event later than twenty-four (24) hours) after it obtains Knowledge of the receipt by the Company (or any of its Representatives) of any Acquisition Proposal, any inquiry that would reasonably be expected to lead to an Acquisition Proposal, any request for non-public information relating to the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of the Company or any of its Subsidiaries by any third party. In such notice, the Company shall identify the third party making, and details of the material terms and conditions of, any such Acquisition Proposal, indication or request. The Company shall keep Parent fully informed, on a current basis, of the status and material terms of any such Acquisition Proposal, indication or request, including any material amendments or proposed amendments as to price and other material terms thereof. The Company shall provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company Board (or such lesser notice as is provided to the members of the Company Board) at which the Company Board is reasonably expected to consider any Acquisition Proposal. The Company shall promptly provide Parent with a list of any non-public information concerning the Company's business, present or future performance, financial condition or results of operations, provided to any third party, and, to the extent such information has not been previously provided to Parent, copies of such information. (e) Except as set forth in this Section 6.4(e), the Company Board shall not make any Adverse Recommendation Change or enter into (or permit any Subsidiary to enter into) a Company Acquisition Agreement. Notwithstanding the foregoing, at any time prior to the Offer Closing, the Company Board may make an Adverse Recommendation Change or enter into (or permit any Subsidiary to enter into) a Company Acquisition Agreement, if: (i) the Company promptly notifies Parent, in writing, at least two (2) Business Days (the "Notice Period") before making an Adverse Recommendation Change or entering into (or causing a Subsidiary to enter into) a Company Acquisition Agreement, of its intention to take such action with respect to a Superior Proposal, which notice shall state expressly that the Company has received an Acquisition Proposal that the Company Board intends to declare a Superior Proposal and that the Company Board intends to make an Adverse Recommendation Change and/or the Company intends to enter into a Company Acquisition Agreement; (ii) the Company attaches to such notice the most current version of the proposed agreement (which version shall be updated on a prompt basis) and the identity of the third party making such Superior Proposal; (iii) the Company shall, and shall cause its Subsidiaries to, and shall use its reasonable best efforts to cause its and its Subsidiaries' Representatives to, during the Notice Period, negotiate with Parent in good faith to make such adjustments in the terms and conditions of this Agreement so that such Acquisition Proposal ceases to constitute a Superior Proposal, if Parent, in its discretion, proposes to make such adjustments (it being agreed that in the event that, after commencement of the Notice Period, there is any material revision to the terms of a Superior Proposal, including, any revision in price, the Notice Period shall be extended, if applicable, to ensure that at least two (2) Business Days remains in the Notice Period subsequent to the time the Company notifies Parent of any such material revision (it being understood that there may be multiple extensions)); and (iv) the Company Board determines in good faith, after consulting with outside legal counsel and the Company Financial Advisor, that such Acquisition Proposal continues to constitute a Superior Proposal after taking into account any adjustments made by Parent during the Notice Period in the terms and conditions of this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Universal Hospital Services Inc), Merger Agreement (Emergent Group Inc/Ny)
Go-Shop; No Solicitation. (a) Notwithstanding anything to the contrary contained in this Agreement, during During the period (the “Go-Shop Period”) beginning on the date of this Agreement and continuing until 11:59 p.m. (Eastern New York City time) on the twentythirty-first fifth (21st35th) calendar day after following the date of this Agreement (the "“Go-Shop Period"Period End Date”), the Company, the Company and its Subsidiaries and their respective directors, officers, employees, investment bankers, attorneys, accountants directors and officers and other advisors or representatives (collectively, "Representatives") Representatives shall have the right to: (i) initiatedirectly or indirectly solicit, solicit and initiate or encourage any inquiry Company Takeover Proposal or the making of any proposals or offers that constitute Acquisition Proposalsthereof, including by way of providing access to furnishing non-public information and other access to any Person and its Representatives pursuant to a confidentiality agreement that constitutes an Acceptable Confidentiality Agreement; provided that prior to or substantially concurrently with the Company shall promptly time it is provided to such other Person (and in any event within twenty-four (24) hours thereafter) 24 hours), the Company shall make available to Parent and Merger Sub any material non-public information concerning with respect to the Company or its Subsidiaries that the Company provides Subsidiaries furnished to any such other Person given such access that was not previously made available furnished to Parent or Merger Sub, Parent; and (ii) engage directly or enter into or otherwise indirectly participate in any discussions or negotiations with regarding, or furnish to any Persons or groups of Persons Person any information with respect to any Acquisition Proposals or otherwise cooperate with or assist or participate into, or take any other action to facilitate the making of any such inquiriesproposal that constitutes, proposalsor would reasonably be expected to lead to, discussions or negotiations or any effort or attempt to make any Acquisition Proposals. Company Takeover Proposal.
(b) Within one two (12) Business Day following the conclusion of business days after the Go-Shop Period, Period End Date the Company shall notify deliver to Parent a written notice setting forth (A) the identity of any Excluded Party and each other Person or group (other than Parent and its subsidiaries) that, to the knowledge of the number of Company, has (or is expected to have) a material equity interest in the Company Takeover Proposal proposed by such Excluded Parties Party; and provide Parent with a written summary of (B) the material terms and conditions of any Acquisition the pending Company Takeover Proposal received from any made by such Excluded Party (which including any material terms proposed orally or supplementally and conditions any material modifications thereto); and the Company shall include deliver to Parent copies of any Company Takeover Proposal made in writing and all proposed definitive documents (including financing commitments) received by the identity Company or any of the Person its Representatives from any such Excluded Party or group of Persons making the Acquisition its Representatives relating to any Company Takeover Proposal).
(bc) Except as expressly permitted by this Section 6.4 and except as may relate 4.03, with respect to any Person other than an Excluded Party, the Company and its Subsidiaries and their respective officers and directors shall, and the Company shall use its reasonable best efforts to instruct and cause its and its Subsidiaries' other Representatives to, (i) at 12:00 a.m. beginning on the twentydate immediately following the Go-second Shop Period End Date (22nd) calendar day after the date of this Agreement (the "“No-Shop Period Start Date"”), the Company, the Company Subsidiaries and their respective directors and officers shall not, and the Company shall direct its and the Company Subsidiaries’ other Representatives not to, (i) immediately cease directly or indirectly solicit, initiate or knowingly encourage or facilitate any inquiries, proposals or offers with respect to or that would reasonably be expected to lead to, or the submission of, any Company Takeover Proposal, (ii) execute or enter into any agreement or understanding with respect to any Company Takeover Proposal (iii) directly or indirectly participate in any discussions or negotiations with regarding, or furnish to any Persons that may be ongoing Person any information with respect to, or take any other action to an Acquisition facilitate the making of any proposal that constitutes, or would reasonably be expected to lead to, any Company Takeover Proposal, and (iiiv) take any action to make the provisions of any Takeover Law or any restrictive provision of any applicable anti-takeover provision in the Company Charter or Company By-laws inapplicable to any transactions contemplated by a Company Takeover Proposal or (v) authorize, commit or agree to do any of the foregoing. Except as otherwise expressly provided in this Agreement, from the No-Shop Period Start Date until the earlier of the Effective Time and the termination of this Agreement in accordance with Article 10Date, the Company shall notshall, and shall cause its the Company Subsidiaries not to, and shall not authorize or permit its and its Subsidiaries' their respective Representatives to, directly except with respect to any Excluded Party, immediately (i) cease all communications, solicitations, discussions and negotiations regarding any inquiry, proposal or indirectlyoffer that constitutes, solicitor would reasonably be expected to lead to, initiate or knowingly take any action to facilitate or encourage the submission of any Acquisition a Company Takeover Proposal or otherwise in connection with an Company Takeover Proposal or potential Company Takeover Proposal, (ii) request the making prompt return or destruction of all confidential information previously furnished to any proposal Person within the last six months for the purposes of evaluating a possible Company Takeover Proposal and (iii) terminate access to any physical or electronic data rooms relating to a possible Company Takeover Proposal. Notwithstanding anything to the contrary contained in the foregoing or any other provision of this Agreement, prior to obtaining the Company Requisite Vote and after the No-Shop Period Start Date, in response to an unsolicited bona fide Company Takeover Proposal, or a Company Takeover Proposal from an Excluded Party, in each case that could did not result from a material breach of this Section 4.03 and that the Company Board determines, in good faith, after consultation with its outside counsel and financial advisor, constitutes or would reasonably be expected to lead to any Acquisition a Superior Company Proposal (a “Qualifying Company Takeover Proposal, or, subject to Section 6.4(c”), the Company may (1A) conduct or engage in any discussions or negotiations with, disclose any furnish non-public information relating and other access to the Person making such Qualifying Company Takeover Proposal and its Representatives pursuant to an Acceptable Confidentiality Agreement so long as the Company also provides Parent, in accordance with the terms of the Confidentiality Agreement and substantially concurrently with the time such information or access is provided to such other Person (and in any event within 24 hours), any material non-public information or access with respect to the Company or any of its Subsidiaries to, afford access to the business, properties, assets, books or records of the Company Subsidiaries furnished to such other Person that was not previously furnished to Parent, and (B) enter into or any of otherwise participate in discussions or negotiations with such Person and its Subsidiaries to, or knowingly assist, participate in, facilitate or encourage any effort by, any third party that is seeking to make, or has made, any Acquisition Representatives regarding such Qualifying Company Takeover Proposal, (2) including soliciting, encouraging and facilitating the making of a revised Qualifying Company Takeover Proposal; provided that the Company may only take the actions described in clauses (A) amend or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries or (B) approve above after the No-Shop Period Start Date if the Company Board determines, in good faith, after consultation with outside counsel, that the failure to take any transaction under, or any third party becoming an "interested stockholder" under, Section 78.423 of Nevada such action would be reasonably likely to be inconsistent with its fiduciary duties under applicable Law, or .
(3d) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Acquisition Proposal (each, a "Company Acquisition Agreement"). Subject to Section 6.4(c), neither Neither the Company Board nor any committee thereof shall fail (i) (A) withdraw or modify in a manner adverse to makeParent or Merger Sub, withdraw, amend, or propose publicly to withdraw or modify or materially qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (B) approve or recommend an Acquisition recommend, or propose publicly to approve or recommend, any Company Takeover Proposal, (C) fail to publicly reaffirm, up to a maximum of two times (provided that, Parent shall be entitled to an additional two such reaffirmations for each Intervening Event or make publicly announced change to any public statement inconsistent with material term of a Company Takeover Proposal), the Company Board RecommendationRecommendation within five (5) business days after Parent so requests in writing (or such fewer number of days as remain prior to the Stockholders Meeting, as it may be adjourned or resolve postponed in accordance with this Agreement), (D) fail to recommend in a Solicitation/Recommendation Statement on Schedule 14D-9 rejection of a Company Takeover Proposal that is a tender offer or exchange offer subject to Regulation 14D under the Exchange Act (other than by Parent and its affiliates) within ten (10) business days of the commencement of such tender offer or exchange offer (or such fewer number of days as remain prior to the Stockholders Meeting, as it may be adjourned or postponed in accordance with this Agreement) or (E) resolve, publicly announce an intention or agree to take any of the foregoing actions (any of the foregoing, action described in this clause (i) being referred to herein as an "“Adverse Recommendation Change"”) or (ii) approve or enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, option agreement, merger agreement, joint venture agreement, partnership agreement or other agreement providing for any Company Takeover Proposal (other than an Acceptable Confidentiality Agreement entered into in accordance with Section 4.03(a) or Section 4.03(c)), or resolve, agree or publicly propose to take any such action. The Company shall, and shall cause its Subsidiaries Notwithstanding anything to cease immediately and cause to be terminated, and shall not authorize contrary in the foregoing or knowingly permit any other provision of its or their Representatives to continue, any and all existing activities, discussions or negotiations, if any, with any third party conducted prior to the date hereof with respect to any Acquisition Proposal.
(c) Notwithstanding Section 6.4(a)this Agreement, at any time following the No-Shop Period Start Date and prior to the Acceptance Dateto, but not after, the Company Board, directly or indirectly through any Representative, may, subject to Section 6.4(dRequisite Vote has been obtained (x) (i) participate in negotiations or discussions with any third party that has made (and not withdrawn) a bona fide, unsolicited Acquisition Proposal in writing that the Company Board believes may, in response to an Intervening Event, take or fail to take any of the actions specified in clauses (A), (C), (D) or (E) of the definition of Adverse Recommendation Change (an “Intervening Event Adverse Recommendation Change”) if the Company Board determines, in good faith, after consultation with outside legal counsel and the Company Financial Advisor, constitutes or would reasonably be expected to result in a Superior Proposal, (ii) thereafter furnish to such third party non-public information relating to the Company or any of its Subsidiaries pursuant to an executed confidentiality agreement that constitutes an Acceptable Confidentiality Agreement (a copy of which confidentiality agreement shall be promptly (in all events within twenty-four (24) hours) provided for informational purposes only to Parent), (iii) following receipt of and on account of a Superior Proposal, make an Adverse Recommendation Change, and/or (iv) take any action that any court of competent jurisdiction orders the Company to take (which order remains unstayed), but in each case referred to in the foregoing clauses (i) through (iv), only if the Company Board determines in good faith, after consultation with outside legal counsel, that the failure to take such action would be reasonably be expected to cause the Company Board likely to be in breach of inconsistent with its fiduciary duties under Nevada Law. Nothing contained herein shall prevent applicable Law and (y) if the Company Board receives a Superior Company Proposal, the Company may terminate this Agreement pursuant to Section 7.01(f) to enter into a definitive agreement with respect to such Superior Company Proposal (provided that concurrently with such termination the Company pays any Company Termination Fee to be made pursuant to Section 5.05(b)); provided that, prior to so making an Intervening Event Adverse Recommendation Change or so terminating this Agreement, (1) the Company shall have materially complied with this Section 4.03, (2) the Company Board shall have given Parent at least four business days’ prior written notice of its intention to take such action and a description of the reasons for taking such action (which notice, in respect of a Superior Company Proposal, shall specify in writing the identity of the Person or group of Persons who made such Superior Company Proposal and all of the material terms and conditions of such Superior Company Proposal and attach the most current version of the relevant transaction agreement and other material definitive documents (including financing commitments)), (3) the Company shall have negotiated, and shall have caused its Representatives to negotiate in good faith, with Parent during such notice period, to the extent Parent wishes to negotiate, to enable Parent to revise the terms of this Agreement in such a manner that would eliminate the need for taking such action (and in respect of a Superior Company Proposal, would cause such Superior Company Proposal to no longer constitute a Superior Company Proposal), (4) following the end of such notice period, the Company Board shall have considered in good faith any revisions to the terms of this Agreement offered in writing by Parent, and shall have determined in good faith, after consultation with outside counsel, that failure to effect such Company Intervening Event Adverse Recommendation Change or to terminate this Agreement to accept such Superior Company Proposal would be reasonably likely to be inconsistent with its fiduciary duties under applicable Law and, with respect to a Superior Company Proposal, that such Superior Company Proposal continues to constitute a Superior Company Proposal and (5) in the event of any material change to any of the terms or conditions of such Superior Company Proposal, the Company shall, in each case, deliver to Parent an additional notice consistent with that described in clause (2) of this proviso and a renewed notice period under clause (2) of this proviso shall commence (except that the four-business-day notice period referred to in clause (2) of this proviso shall instead be equal to two business days) during which time the Company shall be required to comply with the requirements of this Section 4.03(d) anew with respect to such additional notice, including clauses (1) through (4) of this proviso.
(e) Nothing contained in this Section 4.03 or elsewhere in this Agreement shall prohibit the Company from (i) taking and disclosing to the Company's its stockholders a position contemplated by Rule 14d-9 and or Rule 14e-2(a) promulgated under the Exchange Act with regard (or any similar communication to an Acquisition Proposalstockholders), including making any “stop-look-and-listen” communication to the stockholders of the Company, or (ii) making any disclosure to its stockholders if the Company Board determines, in good faith, after consultation with outside legal counsel, that the failure to disclose take such position action would be reasonably likely to be inconsistent with its fiduciary duties under applicable Law; provided that this Section 4.03(e) shall not be deemed to affect whether any such action (other than a recommendation against a Company Takeover Proposal or a “stop-look-and-listen” communication by the Company Board pursuant to Rule 14d-9 promulgated under the Exchange Act) would otherwise constitute a violation of Applicable Law. For an Adverse Recommendation Change.
(f) In addition to the avoidance of doubtrequirements set forth in Section 4.03(c) and Section 4.03(d), notwithstanding the occurrence of from and after the No-Shop Period Start Date, the Company may continue to engage shall, as promptly as practicable and in the activities described any event within one business day after receipt thereof, advise Parent orally and in Section 6.4(a) with respect to any Excluded Party and the restrictions in Section 6.4(b) shall not apply with respect thereto.
(d) The Company Board shall not take any writing of the actions referred to in clauses receipt of (i) through (iv) of Section 6.4(c) unless the any Company shall have delivered to Parent a prior written notice advising Parent that it intends to take such action. The Company shall notify Parent promptly (but in no event later than twenty-four (24) hours) after it obtains Knowledge of the receipt by the Company (Takeover Proposal or any of its Representatives) of any Acquisition Proposal, any inquiry that would reasonably be expected to lead to an Acquisition Proposal, any request for non-public information relating to the Company or any of its Subsidiaries inquiry, proposal or for access to the business, properties, assets, books or records of the Company or any of its Subsidiaries by any third party. In such notice, the Company shall identify the third party making, and details of the material terms and conditions of, any such Acquisition Proposal, indication or request. The Company shall keep Parent fully informed, on a current basis, of the status and material terms of any such Acquisition Proposal, indication or request, including any material amendments or proposed amendments as to price and other material terms thereof. The Company shall provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company Board (or such lesser notice as is provided to the members of the Company Board) at which the Company Board is reasonably expected to consider any Acquisition Proposal. The Company shall promptly provide Parent with a list of any non-public information concerning the Company's business, present or future performance, financial condition or results of operations, provided to any third party, and, to the extent such information has not been previously provided to Parent, copies of such information.
(e) Except as set forth in this Section 6.4(e), the Company Board shall not make any Adverse Recommendation Change or enter into (or permit any Subsidiary to enter into) a Company Acquisition Agreement. Notwithstanding the foregoing, at any time prior to the Offer Closing, the Company Board may make an Adverse Recommendation Change or enter into (or permit any Subsidiary to enter into) a Company Acquisition Agreement, if: (i) the Company promptly notifies Parent, in writing, at least two (2) Business Days (the "Notice Period") before making an Adverse Recommendation Change or entering into (or causing a Subsidiary to enter into) a Company Acquisition Agreement, of its intention to take such action with respect to a Superior Proposal, which notice shall state expressly offer that the Company has received an Acquisition Proposal that the reasonably believes would lead to or contemplates a Company Board intends to declare a Superior Takeover Proposal and that the Company Board intends to make an Adverse Recommendation Change and/or the Company intends to enter into a Company Acquisition Agreement; (ii) the terms and conditions of such Company attaches to such notice the most current version of the proposed agreement Takeover Proposal or inquiry, proposal or offer (which version shall be updated on a prompt basisincluding any subsequent amendments or modifications thereto and whether made in writing or orally communicated) and the identity of the third party Person or group of Persons making any such Superior Proposal; (iii) Company Takeover Proposal or request, inquiry, proposal or offer. Commencing upon the provision of any notice referred to above, the Company shall, and shall cause its Subsidiaries to, and shall use its reasonable best efforts to cause its and its Subsidiaries' Representatives toshall keep Parent informed in reasonable detail on a reasonably prompt basis as to the status and details of any such Company Takeover Proposal or inquiry, during the Notice Period, negotiate with Parent in good faith to make such adjustments in the terms proposal or offer (and conditions of this Agreement so that such Acquisition Proposal ceases to constitute a Superior Proposal, if Parent, in its discretion, proposes to make such adjustments (it being agreed that in the event that, after commencement of the Notice Period, there is any subsequent amendments or modifications thereto) and any material revision developments or modifications to the terms of a Superior Proposal, including, any revision thereof.
(g) Notwithstanding anything to the contrary set forth in pricethis Section 4.03, the Notice Period shall be extended, if applicable, to ensure Company acknowledges and agrees that (i) any violation of the restrictions or obligations set forth in this Section 4.03 by any Company Subsidiary or their or the Company’s Representatives at least two (2) Business Days remains in the Notice Period subsequent to the time Company’s or the Company notifies Parent Subsidiaries’ direction shall constitute a breach of any such material revision (it being understood that there may be multiple extensions)); this Section 4.03 by the Company and (ivii) it shall not nor shall it permit the Company Board determines in good faith, after consulting with outside legal counsel and Subsidiaries to enter into any agreement that prohibits or restricts the Company Financial Advisor, that such Acquisition Proposal continues from providing to constitute a Superior Proposal after taking into account any adjustments made Parent the information contemplated by Parent during the Notice Period in the terms and conditions this Section 4.03 or complying with Section 4.03(d).
(h) For purposes of this Agreement.:
Appears in 2 contracts
Samples: Merger Agreement (Avantor, Inc.), Merger Agreement (VWR Corp)
Go-Shop; No Solicitation. (a) Notwithstanding anything to the contrary contained in this Agreement, during the period beginning commencing on the date of this Agreement and continuing until 11:59 p.m. (Eastern Jacksonville time) on the twenty-first date that is (21sti) thirty (30) calendar day after days following the date of this Agreement (the "Go“No-Shop Period"Period Start Date”), the Company and Company, its Subsidiaries and their respective directors, officers, employeesdirectors or employees or any affiliate, investment bankersbanker, attorneysfinancial advisor, accountants and attorney, accountant or other advisors or representatives representative (collectively, "“Representatives"” ) shall have the right to: to (ia) solicit, initiate, solicit and induce or encourage any inquiry or the making of any proposals or offers that constitute Acquisition Proposals, or facilitate the making, submission or announcement of one or more Acquisition Proposals from any Person or its Representatives, or encourage, facilitate or assist, any proposal, inquiry or offer that could reasonably be expected to lead to an Acquisition Proposal, including by way of providing access furnishing to any Person or its Representatives any non-public information relating to the Company or any of its Subsidiaries or by affording to any Person pursuant or its Representatives access to a confidentiality agreement that constitutes the business, properties, assets, books, records or other non-public information, or to the personnel, of the Company or any of its Subsidiaries, in each case subject to the entry into, and solely in accordance with, an Acceptable Confidentiality Agreement; provided (b) enter into, participate in or engage in discussions or negotiations with any Person or its Representatives with respect to an Acquisition Proposal or any proposal that the could reasonably be expected to lead to an Acquisition Proposal; and (c) otherwise cooperate with, assist, participate in or facilitate any Acquisition Proposal or any proposal that could reasonably be expected to lead to an Acquisition Proposal. The Company shall promptly will substantially concurrently (and in any event within twenty-four (24) hours thereafterhours) make available to Parent and Merger Sub any material non-public information concerning the Company or and its Subsidiaries that is provided by or on behalf of the Company provides company to any Person given such access or its Representatives pursuant to this Section 5.3(a) that was not previously made available to Parent or Merger Sub, and (ii) engage or enter into or otherwise participate in any discussions or negotiations with any Persons or groups of Persons with respect shall not provide to any Acquisition Proposals such Person any non-public information of or otherwise cooperate with or assist or participate inrelating to Parent, or facilitate any such inquiries, proposals, discussions or negotiations Merger Sub or any effort of their respective affiliates or attempt to make any Acquisition Proposals. Within one (1) Business Day following the conclusion of the Go-Shop Period, the Company shall notify Parent of the number of Excluded Parties and provide Parent with a written summary of the material terms and conditions of any Acquisition Proposal received from any Excluded Party (which material terms and conditions shall include the identity of the Person or group of Persons making the Acquisition Proposal)Representatives.
(b) Except as expressly permitted by Subject to the terms of this Section 6.4 5.3, from and except as may relate to any Excluded Party, the Company and its Subsidiaries and their respective officers and directors shall, and the Company shall use its reasonable best efforts to instruct and cause its and its Subsidiaries' other Representatives to, (i) at 12:00 a.m. on the twenty-second (22nd) calendar day after the date of this Agreement (the "No-Shop Period Start Date") immediately cease any discussions or negotiations with any Persons that may be ongoing with respect to an Acquisition Proposal, and (ii) from the No-Shop Period Start Date until the earlier to occur of the Effective Time and the termination of this Agreement in accordance with pursuant to Article 107 and the consummation of the Closing, the Company shall not, and shall cause its Subsidiaries not to, and shall not instruct, authorize or knowingly permit its any of their officers and its Subsidiaries' directors or any of their other Representatives to, directly or indirectly, (i) solicit, initiate initiate, propose or knowingly take any action to induce the making, submission or announcement of, or knowingly encourage, facilitate or encourage the submission of assist, any Acquisition Proposal Inquiry or the making of any proposal that could constitutes, or would reasonably be expected to lead to, an Acquisition Proposal; (ii) furnish to any Acquisition Proposal, or, subject to Section 6.4(c), (1) conduct or engage in any discussions or negotiations with, disclose Third Party any non-public information relating to the Company or any of its Subsidiaries to, or afford to any Third Party access to the business, properties, assets, books books, records or records other non-public information, or to any personnel, of the Company or its Subsidiaries, in any of its Subsidiaries tosuch case with the intent to induce the making, submission or announcement of, or to knowingly assist, participate inencourage, facilitate or encourage any effort by, any third party that is seeking to make, or has made, any assist an Acquisition Proposal, (2) (A) amend or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company Proposal or any of its Subsidiaries Inquiries or (B) approve any transaction under, or any third party becoming an "interested stockholder" under, Section 78.423 of Nevada Law, or (3) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Acquisition Proposal (each, a "Company Acquisition Agreement"). Subject to Section 6.4(c), neither the Company Board nor any committee thereof shall fail to make, withdraw, amend, modify or materially qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, or recommend an Acquisition Proposal, or make any public statement inconsistent with the Company Board Recommendation, or resolve or agree to take any of the foregoing actions (any of the foregoing, an "Adverse Recommendation Change"). The Company shall, and shall cause its Subsidiaries to cease immediately and cause to be terminated, and shall not authorize or knowingly permit any of its or their Representatives to continue, any and all existing activities, discussions or negotiations, if any, with any third party conducted prior to the date hereof with respect to any Acquisition Proposal.
(c) Notwithstanding Section 6.4(a), at any time following the No-Shop Period Start Date and prior to the Acceptance Date, the Company Board, directly or indirectly through any Representative, may, subject to Section 6.4(d) (i) participate in negotiations or discussions with any third party that has made (and not withdrawn) a bona fide, unsolicited Acquisition Proposal in writing that the Company Board believes in good faith, after consultation with outside legal counsel and the Company Financial Advisor, constitutes or would reasonably be expected to result in a Superior Proposal, (ii) thereafter furnish to such third party non-public information relating to the Company or any of its Subsidiaries pursuant to an executed confidentiality agreement that constitutes an Acceptable Confidentiality Agreement (a copy of which confidentiality agreement shall be promptly (in all events within twenty-four (24) hours) provided for informational purposes only to Parent), (iii) following receipt of and on account of a Superior Proposal, make an Adverse Recommendation Change, and/or (iv) take any action that any court of competent jurisdiction orders the Company to take (which order remains unstayed), but in each case referred to in the foregoing clauses (i) through (iv), only if the Company Board determines in good faith, after consultation with outside legal counsel, that the failure to take such action would reasonably be expected to cause the Company Board to be in breach of its fiduciary duties under Nevada Law. Nothing contained herein shall prevent the Company Board from disclosing to the Company's stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act with regard to an Acquisition Proposal, if the Company determines, after consultation with outside legal counsel, that failure to disclose such position would constitute a violation of Applicable Law. For the avoidance of doubt, notwithstanding the occurrence of the No-Shop Period Start Date, the Company may continue to engage in the activities described in Section 6.4(a) with respect to any Excluded Party and the restrictions in Section 6.4(b) shall not apply with respect thereto.
(d) The Company Board shall not take any of the actions referred to in clauses (i) through (iv) of Section 6.4(c) unless the Company shall have delivered to Parent a prior written notice advising Parent that it intends to take such action. The Company shall notify Parent promptly (but in no event later than twenty-four (24) hours) after it obtains Knowledge of the receipt by the Company (or any of its Representatives) making of any Acquisition Proposal, any inquiry proposal or offer that would reasonably be expected to lead to an Acquisition Proposal; (iii) participate or engage in discussions, communications or negotiations with any request for non-public information Third Party with respect to an Acquisition Proposal or Inquiry (other than informing such Third Parties of the provisions contained in this Section 5.3); (iv) approve, endorse or recommend any proposal that constitutes or would reasonably be expected to lead to, an Acquisition Proposal or (v) enter into any letter of intent, agreement in principle, memorandum of understanding, merger agreement, acquisition agreement or other Contract relating to an Acquisition Transaction, other than an Acceptable Confidentiality Agreement (any such letter of intent, agreement in principle, memorandum of understanding, merger agreement, acquisition agreement or other Contract relating to an Acquisition Transaction (other than an Acceptable Confidentiality Agreement), an “Alternative Acquisition Agreement”). From the Company or any of its Subsidiaries or for access date hereof until the earlier to the business, properties, assets, books or records occur of the Company or any termination of its Subsidiaries by any third party. In such noticethis Agreement pursuant to Article 7 and the consummation of the Closing, the Company and its Subsidiaries shall identify the third party makingbe required to enforce, and details of the material terms and conditions ofshall not be permitted to waive, terminate or modify, any such Acquisition Proposal, indication or request. The Company shall keep Parent fully informed, on a current basis, of the status and material terms provision of any such Acquisition Proposal, indication standstill or request, including any material amendments confidentiality agreement that prohibits or proposed amendments as purports to price and other material terms thereof. The Company shall provide Parent with at least twenty-four (24) hours prior notice of any meeting of prohibit a proposal being made to the Company Board (or such lesser notice as is provided to any committee thereof) (unless the members Company Board or a duly authorized committee thereof acting with the full force and authority of the Company Board) at which the Company Board is reasonably expected to consider any Acquisition Proposal. The Company shall promptly provide Parent with a list of any non-public information concerning the Company's business, present or future performance, financial condition or results of operations, provided to any third party, and, to the extent such information has not been previously provided to Parent, copies of such information.
(e) Except as set forth in this Section 6.4(e), the Company Board shall not make any Adverse Recommendation Change or enter into (or permit any Subsidiary to enter into) a Company Acquisition Agreement. Notwithstanding the foregoing, at any time prior to the Offer Closing, the Company Board may make an Adverse Recommendation Change or enter into (or permit any Subsidiary to enter into) a Company Acquisition Agreement, if: (i) the Company promptly notifies Parent, in writing, at least two (2) Business Days (the "Notice Period") before making an Adverse Recommendation Change or entering into (or causing a Subsidiary to enter into) a Company Acquisition Agreement, of its intention to take such action with respect to a Superior Proposal, which notice shall state expressly that the Company has received an Acquisition Proposal that the Company Board intends to declare a Superior Proposal and that the Company Board intends to make an Adverse Recommendation Change and/or the Company intends to enter into a Company Acquisition Agreement; (ii) the Company attaches to such notice the most current version of the proposed agreement (which version shall be updated on a prompt basis) and the identity of the third party making such Superior Proposal; (iii) the Company shall, and shall cause its Subsidiaries to, and shall use its reasonable best efforts to cause its and its Subsidiaries' Representatives to, during the Notice Period, negotiate with Parent in good faith to make such adjustments in the terms and conditions of this Agreement so that such Acquisition Proposal ceases to constitute a Superior Proposal, if Parent, in its discretion, proposes to make such adjustments (it being agreed that in the event that, after commencement of the Notice Period, there is any material revision to the terms of a Superior Proposal, including, any revision in price, the Notice Period shall be extended, if applicable, to ensure that at least two (2) Business Days remains in the Notice Period subsequent to the time the Company notifies Parent of any such material revision (it being understood that there may be multiple extensions)); and (iv) the Company Board determines determined in good faith, after consulting consultation with its outside legal counsel and counsel, that failure to take such action would reasonably likely be inconsistent with its fiduciary duties under applicable Law). Without limiting the foregoing, it is agreed that any violation of the restrictions in this Section 5.3(b) applicable to the Company Financial Advisorby any of its and its Subsidiaries’ directors, that such Acquisition Proposal continues officers, managers, partners or employees shall be deemed to constitute be a Superior Proposal after taking into account any adjustments made by Parent during the Notice Period in the terms and conditions breach of this AgreementSection 5.3(b) by the Company for all purposes hereunder.
Appears in 2 contracts
Samples: Merger Agreement (Patriot Transportation Holding, Inc.), Merger Agreement (Patriot Transportation Holding, Inc.)
Go-Shop; No Solicitation. (a) Notwithstanding anything any other provision of this Agreement to the contrary contained in this Agreementcontrary, during the period beginning on the date of this Agreement and continuing until 11:59 p.m. (Eastern New York City time) on the twenty-first (21st) calendar day after the date of this Agreement (the "Go-Shop Period")April 17, 2012, the Company and its Subsidiaries and their respective directors, officers, employees, investment bankers, attorneys, accountants and other advisors or representatives (collectively, "Representatives") Representatives shall have the right to: , directly or indirectly, (i) initiate, solicit and encourage any inquiry encourage, whether publicly or the making of any otherwise, Alternative Acquisition Proposals, or inquiries, proposals or offers or other efforts or attempts that constitute could lead to an Alternative Acquisition ProposalsProposal, including including, subject to the last sentence of this Section 4.2(a), by way of providing access to non-public information to any Person pursuant to a confidentiality agreement that constitutes (but only pursuant to) an Acceptable Confidentiality Agreement; Agreement (provided that the Company shall promptly (and in any event within twenty-four (24) hours thereafter) make available to Parent and Merger Sub any material non-public information concerning the Company or its Subsidiaries that the Company provides provided to any Person given such access that was not previously made available Persons shall be provided to Parent prior to or Merger Sub, promptly following the time it is provided to such Persons); and (ii) enter into, engage or enter into or otherwise participate in any and maintain discussions or negotiations with any Persons or groups of Persons with respect to Alternative Acquisition Proposals, or inquiries, proposals or offers or other efforts or attempts that could lead to an Alternative Acquisition Proposal, including through the waiver or release by the Company, at its sole discretion, of any preexisting standstill or similar agreements with any Person to permit such Person to make or amend an Alternative Acquisition Proposals Proposal, or otherwise cooperate with or assist or participate in, or facilitate any such inquiries, proposals, offers, efforts, attempts, discussions or negotiations or negotiations. Notwithstanding anything to the contrary in this Section 4.2, prior to the Cut-Off Date the Company may not provide any effort or attempt non-public information to make any Acquisition Proposals. Within one Person (1except the information described in Section 4.2(a) Business Day following the conclusion of the Go-Shop Period, Company Disclosure Schedule) until such time as such Person has delivered to the Company shall notify Parent of the number of Excluded Parties and provide Parent with a bona fide written summary of the material terms and conditions of any Alternative Acquisition Proposal received from any Excluded Party (which material terms and conditions shall include the identity of the Person that constitutes a Superior Proposal or group of Persons making the Acquisition would reasonably be expected to lead to a Superior Proposal).
(b) Except as expressly permitted by this Section 6.4 Sections 4.2(c) and except as may relate to any Excluded Party4.2(d), the Company and its Subsidiaries and their respective officers and directors shall, and the Company shall use its reasonable best efforts to instruct and cause its and its Subsidiaries' other Representatives to, (i) at from 12:00 a.m. (New York City time) on the twenty-second (22nd) calendar day after the date of this Agreement April 18, 2012 (the "“No-Shop Period Start Date") immediately cease any discussions or negotiations with any Persons that may be ongoing with respect to an Acquisition Proposal”), and (ii) from the No-Shop Period Start Date until the earlier of the Effective Time and or, if earlier, the termination of this Agreement in accordance with Article 10Agreement, the Company shall not, and nor shall cause its Subsidiaries not to, and shall not it authorize or knowingly permit its and its Subsidiaries' Representatives, Subsidiaries or their Representatives to, directly or indirectly, (i) solicit, initiate or knowingly take any action to facilitate encourage or encourage assist (including by way of furnishing information) the submission by any third party of an Alternative Acquisition Proposal, or any Acquisition Proposal inquiry, proposal or the making of any proposal offer that could is reasonably be expected likely to lead to any an Alternative Acquisition Proposal, oror (ii) engage in, subject to Section 6.4(c), (1) conduct continue or engage otherwise participate in any negotiations or discussions regarding an Alternative Acquisition Proposal, or negotiations with, disclose provide any non-public information or data to any Person relating to the Company or any of its Subsidiaries toSubsidiaries, afford access in any such case with the intent to induce the businessmaking, properties, assets, books submission or records of the Company or any of its Subsidiaries toannouncement of, or knowingly assist, participate into encourage, facilitate or encourage any effort byassist, any third party that is seeking to make, or has made, any an Alternative Acquisition Proposal. At 12:00 a.m. on the No-Shop Period Start Date, (2except as permitted by Sections 4.2(c) (A) amend or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries or (B) approve any transaction under, or any third party becoming an "interested stockholder" under, Section 78.423 of Nevada Law, or (3) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Acquisition Proposal (each, a "Company Acquisition Agreement"). Subject to Section 6.4(cand 4.2(d), neither the Company Board nor any committee thereof shall fail to make, withdraw, amend, modify or materially qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, or recommend an Acquisition Proposal, or make any public statement inconsistent with the Company Board Recommendation, or resolve or agree to take any of the foregoing actions (any of the foregoing, an "Adverse Recommendation Change"). The Company shall, and shall cause each of its Subsidiaries to and the Representatives of the Company and its Subsidiaries to, immediately cease immediately and cause to be terminated, and shall not authorize or knowingly permit any of its or their Representatives to continue, any and terminated all existing activities, discussions or negotiations, if any, and negotiations with any third party Person conducted prior to the date hereof thereto with respect to any Alternative Acquisition Proposal.
(c) Notwithstanding anything to the contrary set forth in Section 6.4(a4.2(b), at any time following during the period commencing on the No-Shop Period Start Date and prior to continuing until the Acceptance Dateearlier of the termination of this Agreement and the receipt of the Company Stockholder Approval, the Company Board, directly or indirectly through any Representative, may, subject to Section 6.4(d) and its Representatives may (i) participate provide information in response to a request therefor by a Person who has made a bona fide written Alternative Acquisition Proposal if the Person so requesting such information executes an Acceptable Confidentiality Agreement (provided, that any non-public information provided to such Person shall be provided to Parent prior to or promptly following the time it is provided to such Person), and (ii) engage in negotiations or discussions with any third party that Person who has made (and not withdrawn) a bona fidefide written Alternative Acquisition Proposal, unsolicited if in each such case, such Alternative Acquisition Proposal in writing that did not result from a material breach of this Section 4.2 and the board of directors of the Company Board believes determines in good faith, faith (A) after consultation with outside legal counsel and the Company Financial Advisor, constitutes or would reasonably be expected to result in a Superior Proposal, (ii) thereafter furnish to such third party non-public information relating to the Company or any of its Subsidiaries pursuant to an executed confidentiality agreement that constitutes an Acceptable Confidentiality Agreement (a copy of which confidentiality agreement shall be promptly (in all events within twenty-four (24) hours) provided for informational purposes only to Parent), (iii) following receipt of and on account of a Superior Proposal, make an Adverse Recommendation Change, and/or (iv) take any action that any court of competent jurisdiction orders the Company to take (which order remains unstayed), but in each case referred to in the foregoing clauses (i) through (iv), only if the Company Board determines in good faith, after consultation with outside legal counsel, that the failure to take such action would reasonably be expected to cause be inconsistent with the Company Board to be in breach of its directors’ fiduciary duties under Nevada Law. Nothing contained herein shall prevent the Company Board from disclosing to the Company's stockholders a position contemplated by Rule 14d-9 applicable law, and Rule 14e-2(a(B) promulgated under the Exchange Act with regard to an Acquisition Proposal, if the Company determines, after consultation with its financial advisor and outside legal counsel, that failure such Alternative Acquisition Proposal constitutes a Superior Proposal or would reasonably be expected to disclose such position would constitute lead to a violation of Applicable Law. For Superior Proposal.
(d) Notwithstanding anything to the avoidance of doubtcontrary set forth in Section 4.2(b) or 4.2(c), notwithstanding the occurrence of following the No-Shop Period Start Date and until 11:59 p.m. (New York City time) on May 2, 2012 (the “Cut-Off Date”), the Company and its Representatives may continue to engage in the activities described in Section 6.4(a4.2(a) with respect to any Excluded Party and the restrictions in Section 6.4(b) shall not apply each Exempted Person, including with respect theretoto any amended Alternative Acquisition Proposal submitted by an Exempted Person.
(de) The Company Board shall not take any In addition to the obligations of the actions referred Company set forth in this Section 4.2, (x) within two Business Days of the No-Shop Period Start Date, except with respect to in clauses (i) through (iv) of Section 6.4(c) unless any Exempted Persons, the Company shall have delivered to Parent a prior written notice advising Parent that it intends to take such action. The Company shall notify Parent of the number of parties who have executed Acceptable Confidentiality Agreements and provide Parent with the material terms and conditions of any Alternative Acquisition Proposal received from any such party (including the identity of such parties and copies of all proposed transaction documents) and (y) within two Business Days of the Cut-Off Date, the Company shall notify Parent of the number of Exempted Persons and provide Parent with the material terms and conditions of any Alternative Acquisition Proposal received from any such party (including the identity of such Exempted Persons and copies of all proposed transaction documents). In addition, from and after the No-Shop Period Start Date (and, with respect to any Exempted Person, from and after the Cut-Off Date), the Company shall promptly (but and in no any event later than twenty-four (24within 24 hours of receipt) hours) after it obtains Knowledge of advise Parent in writing in the receipt by the Company (or any of its Representatives) of any Acquisition Proposal, any inquiry that would reasonably be expected to lead to an Acquisition Proposal, any request for non-public information relating to event the Company or any of its Subsidiaries or, to its Knowledge, its Representatives receives (i) any inquiry or request for access information, discussion or negotiation that is reasonably likely to the businesslead to an Alternative Acquisition Proposal, propertiesor (ii) any proposal or offer that is or is reasonably likely to lead to an Alternative Acquisition Proposal, assets, books or records of the Company or any of its Subsidiaries by any third party. In such notice, the Company shall identify the third party making, and details of in each case together with the material terms and conditions ofof such inquiry, request, proposal or offer, the identity of the Person making any such Acquisition Proposalinquiry, indication request, proposal or requestoffer, and a copy of any written proposal, offer or draft agreement provided by such Person. The Company shall keep Parent fully informed, informed (orally and in writing) in all material respects on a current basis, timely basis of the status and details (including, within 24 hours after the occurrence of any material terms amendment or modification) of any such Alternative Acquisition Proposal, indication or request, inquiry, proposal or offer, including any material amendments or proposed amendments as to price and other material terms thereof. The Company shall provide Parent with at least twenty-four (24) hours prior notice furnishing copies of any meeting of the Company Board (or such lesser notice as is provided to the members of the Company Board) at which the Company Board is reasonably expected to consider any Acquisition Proposal. The Company shall promptly provide Parent with a list of any non-public information concerning the Company's businesswritten inquiries, present or future performance, financial condition or results of operations, provided to any third party, and, to the extent such information has not been previously provided to Parent, copies of such informationcorrespondence and draft documentation.
(ef) Except as set forth in this Section 6.4(e4.2(g), neither the board of directors of the Company nor any committee thereof shall:
(i) withhold, withdraw, qualify or modify (or publicly propose to withhold, withdraw, qualify or modify), in a manner adverse to Parent, the Company Board shall not Recommendation with respect to the Merger or fail to include the Company Recommendation in the Proxy Statement, or adopt, approve or recommend to propose to adopt, approve or recommend (publicly or otherwise) an Alternative Acquisition Proposal;
(ii) take formal action or make any Adverse Recommendation recommendation or public statement in connection with a tender offer or exchange offer, other than a recommendation against such offer or a “stop, look and listen” communication pursuant to Rule 14d-9(f) under the Exchange Act (it being understood that the board of directors of the Company may refrain from taking a position with respect to an Alternative Acquisition Proposal until the close of business as of the tenth (10th) Business Day after the commencement of a tender offer or exchange offer in connection with such Alternative Acquisition Proposal pursuant to Rule 14d-9(f) under the Exchange Act without such action being considered an adverse modification of the Company Recommendation) (each action set forth in paragraph (i) above and this paragraph (ii) of Section 4.2(f), a “Change of Recommendation”);
(iii) cause or permit the Company to enter into any acquisition agreement, merger agreement or similar definitive agreement or a letter of intent or agreement in principle with respect thereto (other than an Acceptable Confidentiality Agreement) (an “Alternative Acquisition Agreement”) relating to any Alternative Acquisition Proposal (provided that, for the avoidance of doubt, nothing in this Section 4.2 shall permit the Company to adopt or enter into an Alternative Acquisition Agreement prior to termination of this Agreement in accordance with its terms); or
(or permit iv) take any Subsidiary action pursuant to enter intoSection 6.1(f).
(g) a Company Acquisition Notwithstanding anything to the contrary set forth in this Agreement. Notwithstanding the foregoing, at any time prior to the Offer Closingtime the Company Stockholder Approval is obtained, but not after, the board of directors of the Company Board may make may, if the board of directors of the Company determines in good faith (after consultation with outside legal counsel) that the failure to do so would reasonably be expected to be inconsistent with the Company directors’ fiduciary duties under applicable law, (I) effect a Change of Recommendation in response to a Superior Proposal or an Adverse Recommendation Change Intervening Event or enter into (or permit any Subsidiary II) solely in response to enter into) a Company Acquisition AgreementSuperior Proposal received after the date hereof and that did not result from a material breach of this Section 4.2, iftake action pursuant to Section 6.1(f); provided, that: (iA) the Company promptly notifies Parent, in writingshall have provided prior written notice to Parent and Merger Sub, at least seventy-two (2) Business Days (the "Notice Period") before making an Adverse Recommendation Change or entering into (or causing a Subsidiary to enter into) a Company Acquisition Agreementhours in advance, of its intention to effect a Change of Recommendation or to take such action with respect pursuant to a Superior ProposalSection 6.1(f), which notice shall state expressly that shall, if applicable, specify the Company has received an Acquisition Proposal that identity of the Company Board intends to declare party making a Superior Proposal and that the Company Board intends to make an Adverse Recommendation Change and/or the Company intends to enter into a Company Acquisition Agreementmaterial terms thereof (including copies of all proposed transaction documents); (iiB) the Company attaches to after providing such notice the most current version and prior to effecting such Change of the proposed agreement (which version shall be updated on a prompt basis) and the identity of the third party making Recommendation or taking such Superior Proposal; (iii) action pursuant to Section 6.1(f), the Company shall, and shall cause its Subsidiaries to, and shall use its reasonable best efforts to cause its and its Subsidiaries' Representatives to, during the Notice Period, negotiate with Parent and Merger Sub in good faith (to the extent Parent and Merger Sub desire to negotiate) to make such adjustments in the terms and conditions of this Agreement so as would permit the Company not to effect a Change of Recommendation or take such action pursuant to Section 6.1(f); and (C) the board of directors of the Company shall have considered in good faith any changes to this Agreement and the Financing Letters offered in writing by Parent in a manner that would form a binding contract if accepted by the Company and shall have determined that the failure to make a Change of Recommendation or terminate this Agreement, as applicable, would reasonably be expected to be inconsistent with its fiduciary duties under applicable law even if such Acquisition Proposal ceases changes were to constitute a Superior Proposal, if Parentbe given effect and, in its discretion, proposes to make such adjustments (it being agreed that in the event that, after commencement of the Notice Period, there is any material revision to the terms case of a Superior Proposal, including, any revision in price, the Notice Period shall be extended, if applicable, to ensure that at least two (2) Business Days remains in the Notice Period subsequent to the time the Company notifies Parent of any such material revision (it being understood that there may be multiple extensions)); and (iv) the Company Board determines in good faith, after consulting with outside legal counsel and the Company Financial Advisor, that such Acquisition Superior Proposal continues would continue to constitute a Superior Proposal after taking into account if such changes were to be given effect. In the event of any adjustments made by material revisions to such Superior Proposal, the Company shall be required to deliver a new written notice to Parent during and Merger Sub and to comply with the Notice Period in the terms and conditions requirements of this AgreementSection 4.2(g) with respect to such new written notice, except that the deadline for such new written notice shall be reduced to forty-eight hours before the Change of Recommendation or action pursuant to Section 6.1(f) (rather than the seventy-two hours otherwise contemplated by this Section 4.2(g)).
(h) The Company agrees that any violation of the restrictions set forth in this Section 4.2 by any Representative of the Company or any of its Subsidiaries, whether or not such Person is purporting to act on behalf of the Company or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by the Company.
(i) Nothing contained in this Section 4.2 or elsewhere in this Agreement shall prohibit the Company or its board of directors from complying with Rule 14d-9, Rule 14e-2 or Item 1012 of Regulation M-A under the Exchange Act, or from making any legally required disclosures to stockholders (including, without limitation, any “stop, look and listen” communication pursuant to Rule 14d-9(f) under the Exchange Act) with regard to an Alternative Acquisition Proposal (for the avoidance of doubt, it being agreed that the fact that a disclosure or other action may be deemed permissible by virtue of this sentence does not in and of itself mean that such disclosure or other action does not constitute a Change of Recommendation).
Appears in 2 contracts
Samples: Merger Agreement (Zayo Group LLC), Merger Agreement (Abovenet Inc)
Go-Shop; No Solicitation. (a) Notwithstanding anything to the contrary contained in this AgreementAgreement (including, for the avoidance of doubt, Section 5.3(c)), during the period beginning on the date of this Agreement and continuing until 11:59 p.m. 12:01 a.m. (Eastern New York time) on the twenty-first day that is thirty (21st30) calendar day days after the date of this Agreement (the "“Go-Shop Period"Period End Date”), the Company and its Subsidiaries and their respective directors, officers, employees, investment bankers, attorneys, accountants and other advisors or representatives (collectively, "Representatives") shall Representatives will have the right to: to (i) solicit, initiate, solicit and encourage or facilitate any inquiry or the making of any proposals proposal or offers offer that constitute Acquisition Proposalsconstitutes an Alternative Proposal, including by way of providing access to information (including non-public information and data) regarding, and affording access to the business, properties, assets, books, records and personnel of, the Company and its Subsidiaries to any Person pursuant to a (x) an executed confidentiality agreement that constitutes an Acceptable Confidentiality Agreement; provided that having provisions as to confidential treatment of information of the Company shall promptly that are substantially similar to the confidentiality provisions of the Confidentiality Agreement (and in it being understood that such confidentiality agreement need not contain any event within twenty-four “standstill” or similar provisions or otherwise prohibit the making or amendment of any Alternative Proposal), or (24y) hours thereafter) make available to Parent and Merger Sub any material non-public information concerning the Company extent applicable, the confidentiality agreement entered into with such Person or its Subsidiaries that group of Persons prior to the Company provides to any Person given such access that was not previously made available to Parent or Merger Subdate of this Agreement, and (ii) engage or in, enter into into, continue or otherwise participate in any discussions or negotiations with any Persons or groups group of Persons with respect to any Acquisition Alternative Proposals or otherwise and cooperate with or assist or participate in, in or facilitate any such inquiries, proposals, discussions or negotiations or any effort or attempt to make any Acquisition ProposalsAlternative Proposal. Within one The Company will promptly (1and in any event within twenty-four (24) Business Day following hours) make available to the conclusion of the GoParent any non-Shop Period, public information concerning the Company shall notify Parent of the number of Excluded Parties and provide Parent with a written summary of the material terms and conditions of or its Subsidiaries that is provided to any Acquisition Proposal received from any Excluded Party (which material terms and conditions shall include the identity of the Person or group of Persons making given such access that was not previously made available to the Acquisition Proposal)Parent.
(b) Except as expressly permitted by this Section 6.4 and except as may relate to any Excluded PartyParty until the Cut-Off Date or as permitted by this Section 5.3, after the Go-Shop Period End Date, the Company and its Subsidiaries and their respective officers and directors shallwill, and the Company shall use its reasonable best efforts to instruct and will cause its and its Subsidiaries' other ’ Representatives to, (icease any activities permitted by Section 5.3(a) at 12:00 a.m. on the twenty-second (22nd) calendar day after the date of this Agreement (the "No-Shop Period Start Date") immediately cease and any discussions or negotiations with any Person or group of Persons that may be ongoing with respect to an Acquisition any Alternative Proposal.
(c) Except as may relate to any Excluded Party until the Cut-Off Date or as permitted by this Section 5.3, and (ii) from the NoGo-Shop Period Start End Date until the earlier of the Effective Time and Time, or, if earlier, until the termination of this Agreement in accordance with Article 10VII, the Company shall will not, and shall will cause its Subsidiaries not to, and shall will use its reasonable best efforts to cause its or their respective Affiliates or Representatives not authorize or permit its and its Subsidiaries' Representatives to, directly or indirectly, (i) solicit, initiate or knowingly take encourage or facilitate any action to facilitate inquiry, proposal or encourage the submission of any Acquisition Proposal offer with respect to, or the making of making, submission or announcement of, any proposal that could reasonably be expected to lead to any Acquisition Alternative Proposal, or(ii) participate in any negotiations regarding an Alternative Proposal with, subject or furnish any nonpublic information regarding an Alternative Proposal to, any Person or group of Persons that has made an Alternative Proposal, (iii) engage in discussions regarding an Alternative Proposal with any Person or group of Persons that has made an Alternative Proposal, except to notify such Person or group of Persons as to the existence of the provisions of this Section 6.4(c5.3, (iv) approve or recommend any Alternative Proposal, or (v) enter into any letter of intent or agreement in principle or any agreement providing for any Alternative Proposal (an “Alternative Acquisition Agreement”).
(d) Notwithstanding anything to the contrary in this Agreement and solely in response to an unsolicited Alternative Proposal made on or after the Go-Shop Period End Date and prior to the date that is twenty (20) days after the mailing of the Information Statement to the stockholders of the Company (the “Window Shop End Date”), the Company may, with respect to the Person that has made such Alternative Proposal (1i) conduct in response to a request therefor by such Person, provide information or engage afford access to the books and records or Representatives of the Company, and (ii) engage, participate in or facilitate any discussions or negotiations withwith such Person (and its Representatives) with respect to such Alternative Proposal. The Company may not take the actions described in this Section 5.3(d) unless, disclose prior to taking any such action:
(i) the Company has (1) received from such Person an executed confidentiality and standstill agreement on terms that are no less restrictive than those contained in the Confidentiality Agreement and (2) disclosed or made available to Parent any non-public information relating to the Company or be provided to such Person and any of its Subsidiaries to, afford access to the business, properties, assets, books or records to which such Person will be afforded access, in each case, to the extent not previously provided or otherwise made available to Parent; and
(ii) the Company has delivered to Parent an unredacted copy of such Alternative Proposal (or, if not such Alternative Proposal is not in writing, a written summary of the Company or any of its Subsidiaries to, or knowingly assist, participate in, facilitate or encourage any effort by, any third party that is seeking to make, or has made, any Acquisition Proposal, (2material terms thereof) (A) amend or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities and an executed copy of the Company confidentiality and standstill agreement.
(e) In response to the receipt of a Superior Proposal that has not been withdrawn or any of its Subsidiaries or (B) approve any transaction underterminated prior to the Window Shop End Date, or any third party becoming an "interested stockholder" under, Section 78.423 of Nevada Law, or (3) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Acquisition Proposal (each, a "Company Acquisition Agreement"). Subject to Section 6.4(c), neither the Company Board nor any committee thereof shall fail to make, may withdraw, amend, modify or materially qualify, in a manner adverse to Parent or Merger Sub, qualify the Company Board Recommendation, or recommend an Acquisition Proposal, or make any public statement inconsistent with the Company Board Recommendation, or resolve or agree to take any of the foregoing actions (any of the foregoing, an "Adverse Recommendation Change"). The Company shall, and shall cause its Subsidiaries to cease immediately and cause to be terminated, and shall not authorize or knowingly permit any of its or their Representatives to continue, any and all existing activities, discussions or negotiations, if any, with any third party conducted prior to the date hereof with respect to any Acquisition Proposal.
(c) Notwithstanding Section 6.4(a), at any time following the No-Shop Period Start Date and prior to the Acceptance Date, the Company Board, directly or indirectly through any Representative, may, subject to Section 6.4(d) (i) participate in negotiations or discussions with any third party that has made (and not withdrawn) a bona fide, unsolicited Acquisition Proposal in writing that the Company Board believes in good faith, after consultation with outside legal counsel and the Company Financial Advisor, constitutes or would reasonably be expected to result in a Superior Proposal, (ii) thereafter furnish to such third party non-public information relating to the Company or any of its Subsidiaries pursuant to an executed confidentiality agreement that constitutes an Acceptable Confidentiality Agreement (a copy “Change of which confidentiality agreement shall be promptly (in all events within twenty-four (24Recommendation”) hours) provided for informational purposes only to Parent), (iii) following receipt of and on account of a Superior Proposal, make an Adverse Recommendation Change, and/or (iv) take any action that any court of competent jurisdiction orders the Company to take (which order remains unstayed), but in each case referred to in the foregoing clauses (i) through (iv), only if the Company Board determines in good faithfaith after consultation with its financial advisors and outside legal counsel that the failure of the Company Board to effect a Change of Recommendation would be reasonably likely to be inconsistent with the directors’ exercise of their fiduciary obligations to the Company’s stockholders under applicable Law.
(f) Nothing in this Agreement will prohibit or restrict the Company Board from making a Change of Recommendation (and if the Company Board so chooses, cause the Company to terminate this Agreement pursuant to Section 7.1(g)) prior to the Window Shop End Date to the extent that the Company Board determines in good faith after consultation with its financial advisors and outside legal counsel that the failure of the Company Board to effect a Change of Recommendation would be reasonably likely to be inconsistent with the directors’ exercise of their fiduciary obligations to the Company’s stockholders under applicable Law; provided, however that the Company may not terminate this Agreement during the period that is after the Go-Shop End Date but prior to the Window Shop End Date on account of a Superior Proposal received during such period that directly resulted from a material breach by the Company of Section 5.3(c).
(g) Following the delivery of a Termination Notice:
(i) Delivered in connection with a Superior Proposal that was delivered prior to the Go-Shop Period End Date, if Parent does not deliver to the Company prior to 12:01 a.m. (New York City time) on the date that is four (4) Business Days following the date of the Termination Notice (the “Expiration Date”) a written, binding and irrevocable proposal that the Company Board determines in good faith (taking into account any revisions to the terms of the transaction contemplated by this Agreement proposed by Parent as provided in this Section 5.3(g)(i)), after consultation with its financial advisors and outside legal counsel, that is at least as favorable to the failure to take Company and its stockholders as such action would reasonably be expected to Superior Proposal (a “Parent Superior Proposal”), the Company Board may in its sole discretion immediately cause the Company Board to be in breach of its fiduciary duties under Nevada Law. Nothing contained herein shall prevent terminate this Agreement pursuant to Section 7.1(g) without the need for any further action or notice by any Person; provided, however, that if a Parent Superior Proposal is delivered to the Company Board from disclosing on or before the Expiration Date, then the Cut-Off Date shall be automatically extended (with respect to the Company's stockholders a position contemplated by Rule 14d-9 Change of Recommendation Party) to 12:01 a.m. (New York City time) on the date that is the later of (i) the Business Day that is four (4) Business Days following the date of the Parent Superior Proposal and Rule 14e-2(a(ii) promulgated under the Exchange Act with regard to an Acquisition Proposal, if Business Day that is fifteen (15) days following the Company determines, after consultation with outside legal counsel, that failure to disclose such position would constitute a violation of Applicable LawGo-Shop Period End Date. For the avoidance of doubt, notwithstanding the occurrence of the No-Shop Period Start Dateduring such period, the Company may continue to engage in the activities described in Section 6.4(a5.3(a) with respect to any Excluded Party to, and the restrictions in Section 6.4(b5.3(b) shall and Section 5.3(c) will not apply with respect thereto.
(d) The to, the Change of Recommendation Party. At the end of such period, in the event that the Company Board shall not take any determines to make a Change of Recommendation in favor of the actions referred to in clauses (i) through (iv) Change of Section 6.4(c) unless Recommendation Party over the Company shall have delivered to Parent a prior written notice advising Parent that it intends to take such action. The Company shall notify Parent promptly (but in no event later than twenty-four (24) hours) after it obtains Knowledge of the receipt by the Company (or any of its Representatives) of any Acquisition Superior Proposal, any inquiry that would reasonably be expected to lead to an Acquisition Proposal, any request for non-public information relating to the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of the Company or any of its Subsidiaries by any third party. In such notice, the Company shall identify be permitted to terminate this Agreement pursuant to Section 7.1(g) by providing to Parent a new Termination Notice (which notice shall attach the third party makingmost current unredacted version of the proposed agreement relating to such Change of Recommendation Proposal, and details or if there is no proposed agreement, a description in reasonable detail of the material terms and conditions of, any such Acquisition Proposal, indication or request. The thereof); provided that the Company shall keep Parent fully informedagain comply with this Section 5.3(g)(i) prior to terminating this Agreement pursuant to Section 7.1(g); provided, further, that, upon the delivery of a Termination Notice in connection with this Section 5.3(g)(i) delivered after the initial Termination Notice in connection with this Section 5.3(g)(i), (x) the Cut-Off Date shall be automatically extended with respect to such Change of Recommendation Party to 12:01 a.m. (New York City time) on a current basis, the later of (A) the status and material terms Business Day that is four (4) Business Days following the date of any Parent Superior Proposal made following such Acquisition Proposal, indication or request, including any material amendments or proposed amendments as to price Termination Notice and other material terms thereof. The Company shall provide Parent with at least twenty(B) the Business Day that is fifteen (15) days following the Go-four (24) hours prior notice of any meeting of the Company Board (or such lesser notice as is provided to the members of the Company Board) at which the Company Board is reasonably expected to consider any Acquisition Proposal. The Company shall promptly provide Parent with a list of any non-public information concerning the Company's business, present or future performance, financial condition or results of operations, provided to any third party, and, to the extent such information has not been previously provided to Parent, copies of such informationShop Period End Date.
(eii) Except as set forth Delivered in this Section 6.4(e), connection with a Superior Proposal that was delivered after the Company Board shall not make any Adverse Recommendation Change or enter into (or permit any Subsidiary to enter into) a Company Acquisition Agreement. Notwithstanding the foregoing, at any time Go Shop End Date but prior to the Offer ClosingWindow Shop End Date, if Parent does not deliver to the Company prior to 12:01 a.m. (New York City time) on the Expiration Date a Parent Superior Proposal, the Company Board may make an Adverse Recommendation Change or enter into (or permit any Subsidiary to enter into) a Company Acquisition Agreement, if: (i) in its sole discretion immediately cause the Company promptly notifies Parentto terminate this Agreement pursuant to Section 7.1(g) without the need for any further action or notice by any Person; provided, in writinghowever, at least two that if a Parent Superior Proposal is delivered to the Company on or before the Expiration Date, then the Window Shop End Date shall be automatically extended (2with respect to the Change of Recommendation Party), if necessary, to 12:01 a.m. (New York City time) on the Business Day that is four (4) Business Days (following the "Notice Period") before making an Adverse Recommendation Change or entering into (or causing a Subsidiary to enter into) a Company Acquisition Agreement, date of its intention to take such action with respect to a the Parent Superior Proposal. At the end of such period, which notice shall state expressly that in the Company has received an Acquisition Proposal event that the Company Board intends determines to declare make a Change of Recommendation in favor of the Change of Recommendation Party over the Parent Superior Proposal and that Proposal, the Company Board intends shall be permitted to make an Adverse Recommendation Change and/or the Company intends terminate this Agreement pursuant to enter into Section 7.1(g) by providing to Parent a Company Acquisition Agreement; new Termination Notice (ii) the Company attaches to such which notice shall attach the most current unredacted version of the proposed agreement (which version shall be updated on relating to such Change of Recommendation Proposal, or if there is no proposed agreement, a prompt basis) and the identity description in reasonable detail of the third party making such Superior Proposal; (iii) the Company shall, and shall cause its Subsidiaries to, and shall use its reasonable best efforts to cause its and its Subsidiaries' Representatives to, during the Notice Period, negotiate with Parent in good faith to make such adjustments in the material terms and conditions of thereof); provided that the Company shall again comply with this Section 5.3(g)(ii) prior to terminating this Agreement so that such Acquisition Proposal ceases pursuant to constitute a Superior ProposalSection 7.1(g); provided, if Parentfurther, in its discretion, proposes to make such adjustments (it being agreed that in the event that, after commencement of upon the Notice Period, there is any material revision to the terms delivery of a Superior Proposal, including, any revision Termination Notice in priceconnection with this Section 5.3(g)(ii) delivered after the initial Termination Notice in connection with this Section 5.3(g)(ii), the Notice Period Window Shop End Date shall be automatically extended, if applicablenecessary, with respect to ensure such Change of Recommendation Party to 12:01 a.m. (New York City time) on the Business Day that at least two is four (24) Business Days remains following the date of any Parent Superior Proposal made following such Termination Notice.
(h) Nothing contained in the Notice Period subsequent to the time this Agreement will prohibit the Company notifies Parent or its Board of Directors from (i) disclosing to its stockholders a position contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act, or from issuing a “stop, look and listen” statement pending disclosure of its position thereunder or (ii) making any such material revision (it being understood that there may be multiple extensions)); and (iv) disclosure to its stockholders if the Company Board determines in good faith, after consulting consultation with the Company’s outside legal counsel counsel, that the failure of the Company Board to make such disclosure would be reasonably likely to be inconsistent with applicable Law or with the directors’ exercise of their fiduciary obligations to the Company’s stockholders under applicable Law; provided, however, that any public disclosure made by or on behalf of the Company that refers to an Alternative Proposal will be deemed to be a Change of Recommendation unless the Company Board expressly reaffirms the Company Board Recommendation.
(i) For the avoidance of doubt, and without limitation of the rights of the Company set forth in Section 5.3(g), at any time after the Go-Shop Period End Date until 11:59 PM on the date that is fifteen (15) days thereafter (the “Cut-Off Date”), the Company may continue to engage in the activities described in Section 5.3(a) with respect to, and the restrictions in Section 5.3(b) and Section 5.3(c) will not apply to, any Excluded Party, including with respect to any amended or modified Alternative Proposal submitted by any Excluded Party following the Go-Shop Period End Date.
(j) The Company Financial Advisormay waive or fail to enforce any standstill or similar provision in any confidentiality or other agreement it has entered into with any Person or group of Persons, that such Acquisition Proposal continues whether prior to constitute a Superior Proposal or after taking into account any adjustments made by Parent during the Notice Period in the terms and conditions of this Agreementdate hereof.
Appears in 2 contracts
Samples: Merger Agreement (Eastman Chemical Co), Agreement and Plan of Merger (TAMINCO Corp)
Go-Shop; No Solicitation. (a) Notwithstanding anything Each Stockholder hereby covenants and agrees that, from and after the No-Shop Period Start Date until the Termination Date, except as expressly contemplated by this Proxy and Agreement, such Stockholder will not, and will cause its Representatives not to, directly or indirectly (i) solicit, initiate, propose or knowingly induce the making, submission or announcement of, or knowingly encourage, facilitate or assist, any Inquiry or proposal that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal; (ii) furnish to any person other than Parent, Merger Sub, and their respective affiliates (each such person, a “Third Party”), any non-public information relating to such Stockholder, its Covered Shares, the Company or any of its Subsidiaries or afford to any Third Party access to the contrary properties, assets, books, records or other non-public information, or to any personnel, of the Company or its Subsidiaries, in any such case with the intent to induce the making, submission or announcement of, or to knowingly encourage, facilitate or assist an Acquisition Proposal or any Inquiries or the making of any proposal or offer that would reasonably be expected to lead to an Acquisition Proposal; (iii) participate or engage in discussions, communications or negotiations with any Third Party with respect to an Acquisition Proposal or Inquiry (other than informing such Third Parties of the provisions contained in this Section 3.3); (iv) approve, endorse or recommend any proposal that constitutes or would reasonably be expected to lead to, an Acquisition Proposal; (v) enter into any letter of intent, agreement in principle, memorandum of understanding, merger agreement, acquisition agreement or other Contract relating to an Acquisition Proposal or Acquisition Transaction; or (vi) authorize or commit to do any of the foregoing, in each case except to the same extent that the Company is permitted to engage in, or take, any of the foregoing activities pursuant to and in compliance with Section 5.3 of the Merger Agreement, during . Each Stockholder hereby represents and warrants that such Stockholder has read Section 5.3 of the period beginning on Merger Agreement and agrees not to facilitate or participate in any actions prohibited thereby.
(b) From the date of this Agreement and continuing hereof until 11:59 p.m. the No-Shop Period Start Date, each Stockholder will substantially concurrently (Eastern time) on the and, in any event, within twenty-first four (21st24) calendar day after the date of this Agreement (the "Gohours) make available to Acquiror any non-Shop Period"), public information concerning the Company and its Subsidiaries that is provided by or on behalf of such Stockholder to any Person or its Representatives pursuant to Section 5.3(a) of the Merger Agreement that was not previously made available to Acquiror and will not provide to any such Person any non-public information of or relating to Acquiror, Merger Sub or any of their respective directorsaffiliates or Representatives.
(c) From and after the No-Shop Period Start Date until the Termination Date, officerseach Stockholder will promptly (and, employeesin any event, investment bankers, attorneys, accountants within thirty-six (36) hours) notify the Company and other advisors Acquiror in writing if any of the following are received by such Stockholder or representatives (collectively, "any of its Representatives") shall have the right to: (i) initiate, solicit and encourage any inquiry or the making of any proposals or offers that constitute Acquisition Proposals, including by way copies of providing access to any written materials relating thereto, any Inquiries, offers or proposals or requests for non-public information or discussions that constitute or would reasonably be expected to lead to an Acquisition Proposal, or any Person material revisions to the terms and conditions of any pending Acquisition Proposal disclosed pursuant to this Section 3.3(c). Such notice must include (i) the identity of the Third Party making such Inquiries, offers or proposals, (ii) a confidentiality agreement that constitutes an Acceptable Confidentiality Agreementsummary of the material terms and conditions of such Inquiries, offers or proposals to the extent such material terms and conditions are not included in the written materials provided in the following clause (iii); and (iii) copies of any written materials relating thereto provided that to such Stockholder or any of its Representatives. Thereafter, each Stockholder will keep the Company shall promptly and Acquiror reasonably informed, on a reasonably prompt basis (and in any event within twenty-four (24) hours thereafterafter receipt) make available to Parent and Merger Sub any material non-public information concerning as requested by the Company or its Subsidiaries that the Company provides to any Person given such access that was not previously made available to Parent or Merger SubAcquiror, and (ii) engage or enter into or otherwise participate in any discussions or negotiations with any Persons or groups of Persons with respect to any Acquisition Proposals or otherwise cooperate with or assist or participate in, or facilitate any such inquiries, proposals, discussions or negotiations or any effort or attempt to make any Acquisition Proposals. Within one (1) Business Day following the conclusion of the Go-Shop Period, the Company shall notify Parent of the number of Excluded Parties status (and supplementally provide Parent with a written summary of the material terms and conditions or changes to the terms) of any Acquisition Proposal received from such Inquiries, offers or proposals (including any Excluded Party (which material terms amendments thereto and conditions shall include the identity of the Person or group of Persons making the Acquisition Proposal).
(b) Except as expressly permitted by this Section 6.4 and except as may relate to any Excluded Party, the Company and its Subsidiaries and their respective officers and directors shall, and the Company shall use its reasonable best efforts to instruct and cause its and its Subsidiaries' other Representatives to, (i) at 12:00 a.m. on the twenty-second (22nd) calendar day after the date of this Agreement (the "No-Shop Period Start Date") immediately cease any discussions or negotiations with any Persons that may be ongoing with respect to an Acquisition Proposal, and (ii) from the No-Shop Period Start Date until the earlier of the Effective Time and the termination of this Agreement in accordance with Article 10, the Company shall not, and shall cause its Subsidiaries not to, and shall not authorize or permit its and its Subsidiaries' Representatives to, directly or indirectly, solicit, initiate or knowingly take any action to facilitate or encourage the submission copies of any Acquisition Proposal new, amended or the making of any proposal that could reasonably be expected to lead to any Acquisition Proposal, or, subject to Section 6.4(c), (1) conduct or engage in any discussions or negotiations with, disclose any non-public information revised written materials relating to the Company or any of its Subsidiaries to, afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, or knowingly assist, participate in, facilitate or encourage any effort by, any third party that is seeking to make, or has made, any Acquisition Proposal, (2) (A) amend or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries or (B) approve any transaction under, or any third party becoming an "interested stockholder" under, Section 78.423 of Nevada Law, or (3) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Acquisition Proposal (each, a "Company Acquisition Agreement"). Subject to Section 6.4(c), neither the Company Board nor any committee thereof shall fail to make, withdraw, amend, modify or materially qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, or recommend an Acquisition Proposal, or make any public statement inconsistent with the Company Board Recommendation, or resolve or agree to take any of the foregoing actions (any of the foregoing, an "Adverse Recommendation Change"). The Company shall, and shall cause its Subsidiaries to cease immediately and cause to be terminated, and shall not authorize or knowingly permit any of its or their Representatives to continue, any and all existing activities, discussions or negotiations, if any, with any third party conducted prior to the date hereof with respect to any Acquisition Proposal.
(c) Notwithstanding Section 6.4(a), at any time following the No-Shop Period Start Date and prior to the Acceptance Date, the Company Board, directly or indirectly through any Representative, may, subject to Section 6.4(d) (i) participate in negotiations or discussions with any third party that has made (and not withdrawn) a bona fide, unsolicited Acquisition Proposal in writing that the Company Board believes in good faith, after consultation with outside legal counsel and the Company Financial Advisor, constitutes or would reasonably be expected to result in a Superior Proposal, (ii) thereafter furnish thereto provided to such third party non-public information relating to the Company or any of its Subsidiaries pursuant to an executed confidentiality agreement that constitutes an Acceptable Confidentiality Agreement (a copy of which confidentiality agreement shall be promptly (in all events within twenty-four (24) hours) provided for informational purposes only to Parent), (iii) following receipt of and on account of a Superior Proposal, make an Adverse Recommendation Change, and/or (iv) take any action that any court of competent jurisdiction orders the Company to take (which order remains unstayed), but in each case referred to in the foregoing clauses (i) through (iv), only if the Company Board determines in good faith, after consultation with outside legal counsel, that the failure to take such action would reasonably be expected to cause the Company Board to be in breach of its fiduciary duties under Nevada Law. Nothing contained herein shall prevent the Company Board from disclosing to the Company's stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act with regard to an Acquisition Proposal, if the Company determines, after consultation with outside legal counsel, that failure to disclose such position would constitute a violation of Applicable Law. For the avoidance of doubt, notwithstanding the occurrence of the No-Shop Period Start Date, the Company may continue to engage in the activities described in Section 6.4(a) with respect to any Excluded Party and the restrictions in Section 6.4(b) shall not apply with respect thereto.
(d) The Company Board shall not take any of the actions referred to in clauses (i) through (iv) of Section 6.4(c) unless the Company shall have delivered to Parent a prior written notice advising Parent that it intends to take such action. The Company shall notify Parent promptly (but in no event later than twenty-four (24) hours) after it obtains Knowledge of the receipt by the Company (Stockholder or any of its Representatives) of any Acquisition Proposal, any inquiry that would reasonably be expected to lead to an Acquisition Proposal, any request for non-public information relating to the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of the Company or any of its Subsidiaries by any third party. In such notice, the Company shall identify the third party making, and details of the material terms and conditions of, any such Acquisition Proposal, indication or request. The Company shall keep Parent fully informed, on a current basis, of the status and material terms of any such Acquisition Proposal, indication discussions or request, including any material amendments or proposed amendments as to price and other material terms thereof. The Company shall provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company Board (or such lesser notice as is provided to the members of the Company Board) at which the Company Board is reasonably expected to consider any Acquisition Proposal. The Company shall promptly provide Parent with a list of any non-public information concerning the Company's business, present or future performance, financial condition or results of operations, provided to any third party, and, to the extent such information has not been previously provided to Parent, copies of such informationnegotiations.
(e) Except as set forth in this Section 6.4(e), the Company Board shall not make any Adverse Recommendation Change or enter into (or permit any Subsidiary to enter into) a Company Acquisition Agreement. Notwithstanding the foregoing, at any time prior to the Offer Closing, the Company Board may make an Adverse Recommendation Change or enter into (or permit any Subsidiary to enter into) a Company Acquisition Agreement, if: (i) the Company promptly notifies Parent, in writing, at least two (2) Business Days (the "Notice Period") before making an Adverse Recommendation Change or entering into (or causing a Subsidiary to enter into) a Company Acquisition Agreement, of its intention to take such action with respect to a Superior Proposal, which notice shall state expressly that the Company has received an Acquisition Proposal that the Company Board intends to declare a Superior Proposal and that the Company Board intends to make an Adverse Recommendation Change and/or the Company intends to enter into a Company Acquisition Agreement; (ii) the Company attaches to such notice the most current version of the proposed agreement (which version shall be updated on a prompt basis) and the identity of the third party making such Superior Proposal; (iii) the Company shall, and shall cause its Subsidiaries to, and shall use its reasonable best efforts to cause its and its Subsidiaries' Representatives to, during the Notice Period, negotiate with Parent in good faith to make such adjustments in the terms and conditions of this Agreement so that such Acquisition Proposal ceases to constitute a Superior Proposal, if Parent, in its discretion, proposes to make such adjustments (it being agreed that in the event that, after commencement of the Notice Period, there is any material revision to the terms of a Superior Proposal, including, any revision in price, the Notice Period shall be extended, if applicable, to ensure that at least two (2) Business Days remains in the Notice Period subsequent to the time the Company notifies Parent of any such material revision (it being understood that there may be multiple extensions)); and (iv) the Company Board determines in good faith, after consulting with outside legal counsel and the Company Financial Advisor, that such Acquisition Proposal continues to constitute a Superior Proposal after taking into account any adjustments made by Parent during the Notice Period in the terms and conditions of this Agreement.
Appears in 2 contracts
Samples: Irrevocable Proxy and Agreement (Patriot Transportation Holding, Inc.), Irrevocable Proxy and Agreement (Patriot Transportation Holding, Inc.)
Go-Shop; No Solicitation. (a) Notwithstanding anything to the contrary contained in this Agreement, during Go-Shop.
(i) During the period beginning (the “Go-Shop Period”) commencing on the date of this Agreement and continuing until ending at 11:59 p.m. (Eastern time) New York City time on the twenty-first (21st) calendar day that is 30 days after the date of this Agreement (the "“Go-Shop Period"), Period End Date”) the Company and its Subsidiaries Representatives, acting at the direction and their respective directorsunder the supervision of the Company Special Committee, officers, employees, investment bankers, attorneys, accountants and other advisors or representatives shall be permitted to (collectively, "Representatives") shall have the right to: (iA) initiate, solicit and solicit, propose, induce, or knowingly encourage any inquiry or the making of any proposals a proposal or offers inquiry that constitute Acquisition Proposalsconstitutes, including by way of providing access or that could reasonably be expected to non-public information to any Person pursuant to lead to, a confidentiality agreement that constitutes an Acceptable Confidentiality Agreement; provided that the Company shall promptly (and in any event within twenty-four (24) hours thereafter) make available to Parent and Merger Sub any material non-public information concerning the Company Competing Transaction, participate or its Subsidiaries that the Company provides to any Person given such access that was not previously made available to Parent or Merger Sub, and (ii) engage or enter into or otherwise participate in any discussions or negotiations with any Persons Person who has made or groups of Persons with respect informs the Company that it is considering making a proposal for a Competing Transaction, (B) furnish or provide any non-public information or data regarding the Company or its Subsidiaries to any Acquisition Proposals Person who has made or otherwise cooperate informs the Company that it is considering making a proposal for a Competing Transaction; provided, however, that, prior to furnishing such information or affording such access, the Company shall have (I) entered into a confidentiality agreement with such person and (II) previously provided or assist made available (or participate insubstantially concurrently provides or makes available) such information to Parent. Notwithstanding anything in this Section 6.2 to the contrary, the Company shall not, and shall not permit its Subsidiaries to, reimburse or facilitate agree to reimburse the expenses of any such inquiries, proposals, discussions or negotiations Third Party (other than the Company’s Representatives) in connection with a Competing Transaction or any effort other such inquiry, discussion, offer or attempt to make any Acquisition Proposals. Within one request.
(1ii) Business Day following the conclusion of On the Go-Shop PeriodPeriod End Date (A) the Company shall, and shall cause each of the Company Subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated any existing solicitation of, or discussions or negotiations with, any Third Party (other than Excluded Parties) relating to any Competing Transaction or any inquiry, discussion, offer or request that could reasonably be expected to lead to a Competing Transaction and (B) the Company shall as promptly as possible request each Third Party (other than any Excluded Party) that has previously executed a confidentiality or similar agreement in connection with its consideration of a Competing Transaction to return to the Company or destroy any non-public information previously furnished or made available to such person or any of its Representatives by or on behalf of the Company or its Representatives in accordance with the terms of the confidentiality agreement in place with such person.
(iii) No later than two Business Days after the Go-Shop Period End Date, the Company shall notify deliver to Parent on behalf of the number of Excluded Parties and provide Parent with Company Special Committee a written notice setting forth (I) the identity of each Excluded Party and (II) a reasonably detailed summary of the material terms and conditions of any Acquisition Proposal received from any pending Competing Transaction proposal made by such Excluded Party (which material terms and conditions shall include it being understood that price per share, transaction structure (to the identity extent part of the Person or group of Persons making the Acquisition Proposal).
(b) Except as expressly permitted by this Section 6.4 and except as may relate to any Excluded Party, the Company and its Subsidiaries and their respective officers and directors shall, and the Company shall use its reasonable best efforts to instruct and cause its and its Subsidiaries' other Representatives to, (i) at 12:00 a.m. on the twenty-second (22nd) calendar day after the date of this Agreement (the "No-Shop Period Start Date") immediately cease any discussions or negotiations with any Persons that may be ongoing with respect to an Acquisition Proposal, and (ii) from the No-Shop Period Start Date until the earlier of the Effective Time and the termination of this Agreement in accordance with Article 10, the Company shall not, and shall cause its Subsidiaries not to, and shall not authorize or permit its and its Subsidiaries' Representatives to, directly or indirectly, solicit, initiate or knowingly take any action to facilitate or encourage the submission of any Acquisition Proposal or the making of any proposal that could reasonably be expected to lead to any Acquisition Proposal, or, subject to Section 6.4(cCompeting Transaction), (1) conduct or engage in any discussions or negotiations with, disclose any non-public information relating to the Company or any of its Subsidiaries to, afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, or knowingly assist, participate in, facilitate or encourage any effort by, any third party that is seeking to make, or has made, any Acquisition Proposal, (2) (A) amend or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries or (B) approve any transaction under, or any third party becoming an "interested stockholder" under, Section 78.423 of Nevada Law, or (3) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Acquisition Proposal (each, a "Company Acquisition Agreement"). Subject to Section 6.4(c), neither the Company Board nor any committee thereof shall fail to make, withdraw, amend, modify or materially qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, or recommend an Acquisition Proposal, or make any public statement inconsistent with the Company Board Recommendation, or resolve or agree to take any of the foregoing actions (any of the foregoing, an "Adverse Recommendation Change"). The Company shall, closing conditions and shall cause its Subsidiaries to cease immediately and cause to be terminated, and shall not authorize or knowingly permit any of its or their Representatives to continue, any and all existing activities, discussions or negotiations, if any, with any third party conducted prior to the date hereof with respect to any Acquisition Proposal.
(c) Notwithstanding Section 6.4(a), at any time following the No-Shop Period Start Date and prior to the Acceptance Date, the Company Board, directly or indirectly through any Representative, may, subject to Section 6.4(d) (i) participate in negotiations or discussions with any third party that has made (and not withdrawn) a bona fide, unsolicited Acquisition Proposal in writing that the Company Board believes in good faith, after consultation with outside legal counsel and the Company Financial Advisor, constitutes or would reasonably be expected to result in a Superior Proposal, (ii) thereafter furnish to such third party non-public information relating to the Company or any of its Subsidiaries pursuant to an executed confidentiality agreement that constitutes an Acceptable Confidentiality Agreement (a copy of which confidentiality agreement financing provisions shall be promptly (in all events within twenty-four (24) hours) provided for informational purposes only to Parent), (iii) following receipt of and on account of a Superior Proposal, make an Adverse Recommendation Change, and/or (iv) take any action that any court of competent jurisdiction orders the Company to take (which order remains unstayed), but in each case referred to in the foregoing clauses (i) through (iv), only if the Company Board determines in good faith, after consultation with outside legal counsel, that the failure to take such action would reasonably be expected to cause the Company Board to be in breach of its fiduciary duties under Nevada Law. Nothing contained herein shall prevent the Company Board from disclosing to the Company's stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act with regard to an Acquisition Proposal, if the Company determines, after consultation with outside legal counsel, that failure to disclose such position would constitute a violation of Applicable Law. For the avoidance of doubt, notwithstanding the occurrence of the No-Shop Period Start Date, the Company may continue to engage in the activities described in Section 6.4(a) with respect to any Excluded Party and the restrictions in Section 6.4(b) shall not apply with respect thereto.
(d) The Company Board shall not take any of the actions referred to in clauses (i) through (iv) of Section 6.4(c) unless the Company shall have delivered to Parent a prior written notice advising Parent that it intends to take such action. The Company shall notify Parent promptly (but in no event later than twenty-four (24) hours) after it obtains Knowledge of the receipt by the Company (or any of its Representatives) of any Acquisition Proposal, any inquiry that would reasonably be expected to lead to an Acquisition Proposal, any request for non-public information relating to the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of the Company or any of its Subsidiaries by any third party. In such notice, the Company shall identify the third party making, and details of the material terms and conditions of, any such Acquisition Proposal, indication or request. The Company shall keep Parent fully informed, on a current basis, of the status and considered material terms of any such Acquisition Proposal, indication or request, including any material amendments or proposed amendments as to price and other material terms thereof. The Company shall provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company Board (or such lesser notice as is provided to the members of the Company Board) at which the Company Board is reasonably expected to consider any Acquisition Proposal. The Company shall promptly provide Parent with a list of any non-public information concerning the Company's business, present or future performance, financial condition or results of operations, provided to any third party, and, to the extent such information has not been previously provided to Parent, copies of such informationpending Competing Transaction).
(e) Except as set forth in this Section 6.4(e), the Company Board shall not make any Adverse Recommendation Change or enter into (or permit any Subsidiary to enter into) a Company Acquisition Agreement. Notwithstanding the foregoing, at any time prior to the Offer Closing, the Company Board may make an Adverse Recommendation Change or enter into (or permit any Subsidiary to enter into) a Company Acquisition Agreement, if: (i) the Company promptly notifies Parent, in writing, at least two (2) Business Days (the "Notice Period") before making an Adverse Recommendation Change or entering into (or causing a Subsidiary to enter into) a Company Acquisition Agreement, of its intention to take such action with respect to a Superior Proposal, which notice shall state expressly that the Company has received an Acquisition Proposal that the Company Board intends to declare a Superior Proposal and that the Company Board intends to make an Adverse Recommendation Change and/or the Company intends to enter into a Company Acquisition Agreement; (ii) the Company attaches to such notice the most current version of the proposed agreement (which version shall be updated on a prompt basis) and the identity of the third party making such Superior Proposal; (iii) the Company shall, and shall cause its Subsidiaries to, and shall use its reasonable best efforts to cause its and its Subsidiaries' Representatives to, during the Notice Period, negotiate with Parent in good faith to make such adjustments in the terms and conditions of this Agreement so that such Acquisition Proposal ceases to constitute a Superior Proposal, if Parent, in its discretion, proposes to make such adjustments (it being agreed that in the event that, after commencement of the Notice Period, there is any material revision to the terms of a Superior Proposal, including, any revision in price, the Notice Period shall be extended, if applicable, to ensure that at least two (2) Business Days remains in the Notice Period subsequent to the time the Company notifies Parent of any such material revision (it being understood that there may be multiple extensions)); and (iv) the Company Board determines in good faith, after consulting with outside legal counsel and the Company Financial Advisor, that such Acquisition Proposal continues to constitute a Superior Proposal after taking into account any adjustments made by Parent during the Notice Period in the terms and conditions of this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Maxwell W Keith III), Merger Agreement (Via Renewables, Inc.)
Go-Shop; No Solicitation. (a) Notwithstanding anything to the contrary contained in this Agreement, during the period beginning commencing on the date of this Agreement and continuing until 11:59 p.m. (Eastern New York City time) on the date that is (I) twenty-first five (21st25) calendar day after days following the date of this Agreement (the "Go“No-Shop Period"Period Start Date”) for any Person or “group” who is not an Excluded Party, or (II) in respect of any Excluded Party, ten (10) days after the No-Shop Period Start Date (the “Cut Off Date”), as applicable, the Company and Company, its Subsidiaries and their respective directors, officers, employees, investment bankers, attorneys, accountants employees and other advisors or representatives (collectively, "Representatives") Representatives shall have the right to: , directly or indirectly, (i) solicit, initiate, solicit and propose, facilitate, induce or encourage any inquiry or the making of any proposals or offers that constitute Acquisition Proposals, or the making, submission or announcement of one or more Acquisition Proposals from any Person or its Representatives, or encourage, facilitate or assist, any proposal, inquiry or offer that could lead to, result in or constitute an Acquisition Proposal, including by way of providing access furnishing to any Person or its Representatives any non-public information relating to the Company or any of its Subsidiaries or by affording to any Person or its Representatives access to the business, properties, assets, books, records or other non-public information, or to the personnel, of the Company or any of its Subsidiaries, in each case pursuant to a confidentiality agreement that constitutes an one or more Acceptable Confidentiality AgreementAgreements; provided that the Company shall promptly (and ii) continue, enter into, participate in or otherwise participate or engage in any event within twenty-four discussions or negotiations with any Person or its Representatives with respect to one or more Acquisition Proposals or any other proposals that could reasonably be expected to lead to, result in or constitute an Acquisition Proposal or other effort or attempt to make an Acquisition Proposal or other proposal that could reasonably be expected to lead to, result in or constitute an Acquisition Proposal; and (24iii) hours thereafter) otherwise cooperate with, assist, participate in or take any action to facilitate any Acquisition Proposal or any other proposals that could lead to, result in or constitute any Acquisition Proposal. The Company will substantially concurrently make available to Parent and Merger Sub or its Representatives any material non-public information concerning the Company or and its Subsidiaries that is provided by the Company provides to any Person given such access or its Representatives pursuant to this Section 6.03(a) that was not previously made available to Parent or Merger Sub, and (ii) engage or enter into or otherwise participate in any discussions or negotiations with any Persons or groups of Persons with respect shall not provide to any Acquisition Proposals such Person any non-public information of or otherwise cooperate with or assist or participate inrelating to Parent, or facilitate any such inquiries, proposals, discussions or negotiations Merger Subsidiary or any effort of their respective Affiliates or attempt Representatives. Notwithstanding anything contained in this Agreement to make any Acquisition Proposals. Within one (1) Business Day following the conclusion of the Go-Shop Periodcontrary, the Company shall notify Parent of Board or any committee thereof may waive any standstill provisions in any agreement with any Person to the number of Excluded Parties and provide Parent with a written summary of the material terms and conditions of any extent such standstill provisions would prohibit such Person from making an Acquisition Proposal received from any Excluded Party (which material terms and conditions shall include privately to the identity of the Person or group of Persons making the Acquisition Proposal)Company Board.
(b) Except as expressly permitted by Applicable Law, and subject to the provisions of this Section 6.4 and except as may relate 6.03, (x) with respect to any Excluded Party, the Company and its Subsidiaries and their respective officers and directors shall, and the Company shall use its reasonable best efforts to instruct and cause its and its Subsidiaries' other Representatives to, (i) at 12:00 a.m. on the twenty-second Cut Off Date, or (22ndy) calendar day after with respect to any Person or “group” who is not an Excluded Party, on the date of this Agreement (the "No-Shop Period Start Date") immediately , the Company shall, and shall cause its Subsidiaries to, and shall instruct, and shall use its commercially reasonable efforts to cause, its and its Subsidiaries’ Representatives to, promptly cease and cause to be terminated any solicitation, discussions or negotiations with any Persons that may be ongoing with a potential acquiror or its Representatives (other than any Excluded Party) with respect to an Acquisition Proposal, and shall promptly terminate all physical and electronic data room access previously granted to any such Person or its Representatives (iiother than any Excluded Party) and request the return or destruction any copies of, studies based upon and/or any extracts or summaries from, any non-public information of the Company or its Subsidiaries in such Excluded Party’s possession or control, which non-public information was provided by or behalf of the Company in compliance with Section 6.03(a). For the avoidance of doubt, this Section 6.03(b) shall in no way restrict the Company from continuing any solicitation, discussions or negotiations with one or more Excluded Parties on or prior to the Cut Off Date.
(c) Except as permitted by Section 6.03, during the period commencing on (x) with respect to any Excluded Party, the Cut Off Date, or (y) with respect to any Person or “group” who is not an Excluded Party, the No-Shop Period Start Date and, in either case, continuing until the earlier of the Effective Time and (x) the termination of this Agreement in accordance with Article 10or (y) the Effective Time, (i) neither the Company shall not, and shall cause nor any of its Subsidiaries not toshall, and nor shall not the Company or any of its Subsidiaries authorize or knowingly permit its and its Subsidiaries' any of their respective Representatives to, directly or indirectly, (A) solicit, initiate initiate, propose or knowingly take any action to facilitate facilitate, induce or encourage the submission of any Acquisition Proposal or the making of any proposal inquiries that could reasonably be expected to lead to any result in an Acquisition Proposal, or, subject to Section 6.4(cProposal (including by way of furnishing non-public information), (1B) conduct enter into or engage participate in any discussions or negotiations with, disclose or furnish any non-public information relating to the Company or any of its Subsidiaries to, afford access to any Third Party for the businesspurpose of knowingly facilitating, properties, assets, books inducing or records encouraging an Acquisition Proposal (it being understood that notifying such Person of the Company or any existence of its Subsidiaries to, or knowingly assist, participate in, facilitate or encourage any effort by, any third party that is seeking to make, or has made, any Acquisition Proposal, (2this Section 6.03(c) (Ashall not be a breach of this Section 6.03(c)) amend or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries or (BC) approve any transaction underexcept for an Acceptable Confidentiality Agreement, or any third party becoming an "interested stockholder" under, Section 78.423 of Nevada Law, or (3) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership acquisition agreement or other Contract similar agreement relating to any an Acquisition Proposal and (each, a "Company Acquisition Agreement"). Subject to Section 6.4(c), neither ii) the Company Board nor any committee thereof shall (A) not fail to make, withdraw, amend, withdraw or modify or materially qualify, in a manner adverse to Parent the Company Board Recommendation (or Merger Subpublicly recommend an Acquisition Proposal) or publicly propose to do any of the foregoing, (B) not publicly recommend the approval or adoption of, or publicly propose to recommend, approve or adopt, any Acquisition Proposal or (C) fail to include the Company Board Recommendation in the Schedule 14D-9 or, if any Acquisition Proposal has been made public, fail to reaffirm the Company Board Recommendation upon written request of Parent within the earlier of three (3) Business Days prior to the then scheduled Offer Expiration Time or ten (10) Business Days after Parent requests in writing such reaffirmation with respect to such Acquisition Proposal (provided, however, that any action permitted by Section 6.03(f) shall be deemed to not be a failure to reaffirm the Company Board Recommendation, or recommend an and provided further, however that Parent may make such request only once with respect to such Acquisition Proposal, or Proposal unless such Acquisition Proposal is subsequently publicly modified in any material respect in which case Parent may make any public statement inconsistent with the Company Board Recommendation, or resolve or agree to take such request once each time such a material modification is made) (any of the foregoing actions in this clause (ii), an “Adverse Recommendation Change”; provided, that, for the avoidance of doubt, none of (1) the determination by the Company Board that an Acquisition Proposal constitutes a Superior Proposal, (2) the disclosure by the Company of such determination or (3) the delivery by the Company of the notice required by Section 6.03(e), (g) or (h) shall constitute an Adverse Recommendation Change). Notwithstanding the foregoing restrictions in this Section 6.03(c), during the period commencing on the date hereof and continuing until the Acceptance Time, the Company and its Representatives may (x) seek to clarify and understand the terms and conditions of any inquiry or proposal made by any Person solely to determine whether such inquiry or proposal is, could lead to, result in or constitute an Acquisition Proposal and (y) inform a Person that has made or, to the knowledge of the Company, is considering making an Acquisition Proposal of the provisions of this Section 6.03. Without limiting the foregoing, it is agreed that any violation of the restrictions in this Section 6.03(c) applicable to the Company by any of the foregoing, an "Adverse Recommendation Change"). The Company shall, and shall cause its Subsidiaries to cease immediately and cause to be terminated, and shall not authorize Company’s controlled Affiliates or knowingly permit any of its or their Representatives to continueother Representatives, any and all existing activities, discussions or negotiations, if any, with any third party conducted prior to the date hereof with respect extent acting on its behalf or at its direction, shall be deemed to any Acquisition Proposalbe a breach of this Section 6.03(c) by the Company.
(cd) Notwithstanding anything to the contrary in Section 6.4(a)6.03, if at any time following the No-Shop Period Start Date and prior to the Acceptance DateTime, the Company Boardor any of its Representatives has received a written Acquisition Proposal from any Third Party (including any Excluded Party, at any time) that the Company Board determines after consultation with its financial advisor and outside legal counsel, is, could lead to, result in or constitute a Superior Proposal, then the Company and its Subsidiaries, directly or indirectly through any Representativeits and their Representatives, may, subject to Section 6.4(d) may (i) engage or participate in negotiations or discussions with any third party that has made (such Third Party and not withdrawn) a bona fide, unsolicited Acquisition Proposal in writing that the Company Board believes in good faith, after consultation with outside legal counsel its Representatives and the Company Financial Advisor, constitutes or would reasonably be expected to result in a Superior Proposal, (ii) thereafter furnish to such third party Third Party or its Representatives non-public information relating to the Company or any of its Subsidiaries pursuant to an executed confidentiality agreement that constitutes an Acceptable Confidentiality Agreement Agreement; provided, that, (a copy A) prior to or substantially concurrently with the time it is made available to such Third Party, the Company shall make available to Parent any material non-public information relating to the Company or its Subsidiaries that is made available to such Third Party and that was not previously made available to Parent or its Representatives and (B) the Company shall not provide to any such Person any non-public information of which confidentiality agreement shall be promptly (in all events within twenty-four (24) hours) provided for informational purposes only or relating to Parent), (iii) following receipt Merger Subsidiary or any of their respective Affiliates or Representatives. Notwithstanding anything in this Agreement to the contrary and on account notwithstanding the occurrence of a Superior Proposalthe No-Shop Period Start Date, make an Adverse Recommendation Changefrom and after the Cut Off Date, and/or (iv) take any action that any court of competent jurisdiction orders the Company may continue to take (which order remains unstayed), but in each case referred to engage in the foregoing clauses activities described in Section 6.03(a) with respect to any Excluded Party, including with respect to any amended proposal or offer submitted by an Excluded Party following the Cut Off Date, and the restrictions in Section 6.03(b) and Section 6.03(c) will not apply with respect thereto, until the Cut Off Date.
(ie) through (iv)Notwithstanding anything contained in this Agreement to the contrary, only at any time prior to the Acceptance Time, if the Company Board determines in good faithdetermines, after consultation with outside legal counsel, that the failure to take such action would reasonably be expected to cause be inconsistent with its fiduciary duties, the Company Board may make an Adverse Recommendation Change; provided, that, if the Company is making an Adverse Recommendation Change in response to any fact, event, change, development or set of circumstances other than an Acquisition Proposal (which shall be governed by Section 6.03(h)), then the Company Board shall not make such Adverse Recommendation Change unless the Company has (i) provided to Parent at least three (3) calendar days’ prior written notice that it intends to take such action and specifying in reasonable detail the facts underlying the decision by the Company Board to be take such action and (ii) during such three (3) calendar day period, if requested by Parent, engaged in breach of its fiduciary duties under Nevada Law. Nothing negotiations with Parent to amend this Agreement in such a manner that obviates the need for such Adverse Recommendation Change.
(f) In addition, nothing contained herein shall prevent the Company Board from disclosing to (i) complying with Rule 14e-2 under the Company's stockholders a position contemplated by 1934 Act, Rule 14d-9 and Rule 14e-2(aunder the 1934 Act or Item 1012(a) of Regulation M-A promulgated under the Exchange 1934 Act with regard to an Acquisition Proposal; provided, that any such action taken or statement made that relates to an Acquisition Proposal shall not be deemed to be an Adverse Recommendation Change if the Company determines, Board reaffirms the Company Board Recommendation in such statement or in connection with such action or (ii) making any disclosure to the stockholders of the Company if the Company Board determines after consultation with outside legal counsel, that the failure to disclose take such position action would constitute a violation of reasonably be expected to be inconsistent with Applicable Law. For the avoidance of doubt, notwithstanding the occurrence of Law (including its fiduciary duties).
(g) At any time after the No-Shop Period Start DateDate and until the earlier of the termination of this Agreement and the Effective Time, the Company may continue to engage in the activities described in Section 6.4(a) with respect to any Excluded Party and the restrictions in Section 6.4(b) shall not apply with respect thereto.
(d) The Company Board shall not take any of the actions referred to in clauses (i) through (iv) of Section 6.4(c) unless the Company shall have delivered to Parent a prior written notice advising Parent that it intends to take such action. The Company shall notify Parent promptly (but in no event later than twenty-four one (241) hoursBusiness Day) after it obtains Knowledge of the receipt by the Company (or any of its Representatives) of any Acquisition Proposal, any inquiry that would reasonably be expected to lead to an Acquisition Proposal, any request for non-public information relating to the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of the Company or any of its Subsidiaries by any third party. In such notice, the Company which notice shall identify the third party Third Party making, and details of the material terms and conditions of, any such Acquisition Proposal, indication or request. The Proposal and the Company shall keep Parent fully informed, on a current basis, of the status and material terms of any such Acquisition Proposal, indication or request, including reasonably informed promptly (but in no event later than one (1) Business Day) after any material amendments developments, discussions or negotiations regarding any Acquisition Proposal and shall provide to Parent promptly (but in no event later than one (1) Business Day) after receipt thereof copies of all copies of proposed amendments as to price and transaction agreements or proposal letters or other material terms thereof. The Company shall provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company Board (written materials sent or such lesser notice as is provided to the members Company or any of the Company Board) at which the Company Board is reasonably expected to consider its Subsidiaries that describe any material terms or conditions of any Acquisition Proposal. The Company shall promptly provide Parent with a list of any non-public information concerning the Company's business, present or future performance, financial condition or results of operations, provided to any third party, and, to the extent such information has not been previously provided to Parent, copies of such information.
(eh) Except as set forth in this Section 6.4(e)Further, the Company Board shall not make any Adverse Recommendation Change or enter into (or permit any Subsidiary to enter into) a Company Acquisition Agreement. Notwithstanding the foregoing, at any time prior to the Offer Closing, the Company Board may make an Adverse Recommendation Change or enter into in response to an Acquisition Proposal (or permit any Subsidiary terminate this Agreement pursuant to enter into) a Company Acquisition AgreementSection 10.01(d)(i)), if: unless (i) the Company Board has determined, after consultation with its financial advisor and outside legal counsel, that such Acquisition Proposal constitutes a Superior Proposal, (ii) the Company promptly notifies Parent, Parent in writing, at least two three (23) Business Days (calendar days before taking such action, of the "Notice Period") before making an Adverse Recommendation Change or entering into (or causing determination of the Company Board that such Acquisition Proposal constitutes a Subsidiary to enter into) a Company Acquisition Agreement, Superior Proposal and of its intention to take such action with respect to a Superior Proposalaction, which notice shall state expressly that the Company has received an Acquisition Proposal that the Company Board intends to declare a Superior Proposal and that the Company Board intends to make an Adverse Recommendation Change and/or the Company intends to enter into a Company Acquisition Agreement; (ii) the Company attaches to such notice attaching the most current version of the proposed agreement (or material written terms under which version shall such Superior Proposal is proposed to be updated on a prompt basis) consummated and the identity of the third party Third Party making such Superior Proposal; Proposal and the material terms thereof and (iii) the Company shallBoard (A) shall have negotiated, and shall cause have directed its Subsidiaries toRepresentatives to negotiate, and shall use its reasonable best efforts to cause its and its Subsidiaries' Representatives to, during the Notice Period, negotiate with Parent in good faith with Parent during such notice period, to make such adjustments the extent Parent requests to negotiate, to enable Parent to propose in writing a binding offer to effect revisions to the terms and conditions of this Agreement so such that it would cause such Superior Proposal to no longer constitute a Superior Proposal or, in connection with an Adverse Recommendation Change, it would cause the Company Board or such committee or subcommittee to no longer believe that the failure to make an Adverse Recommendation Change would reasonably be expected to be inconsistent with the Company Board’s fiduciary duties under Applicable Law, (B) shall have considered in good faith any revisions to this Agreement irrevocably proposed in writing by Parent and (C) shall have determined that such Acquisition Proposal ceases to constitute a Superior Proposal, if Parent, in its discretion, proposes to make such adjustments (it being agreed that in the event that, after commencement of the Notice Period, there is any material revision to the terms of a Superior Proposal, including, any revision in price, the Notice Period shall be extended, if applicable, to ensure that at least two (2) Business Days remains in the Notice Period subsequent to the time the Company notifies Parent of any such material revision (it being understood that there may be multiple extensions)); and (iv) the Company Board determines in good faith, after consulting with outside legal counsel and the Company Financial Advisor, that such Acquisition Proposal continues would continue to constitute a Superior Proposal after taking into account and in connection with an Adverse Recommendation Change, shall have determined that the failure to make an Adverse Recommendation Change would continue to reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law, in each case, if such revisions were to be given effect (it being understood and agreed that any adjustments made by Parent during material amendment to the Notice Period financial terms or other material terms of such Superior Proposal shall require a new written notification from the Company but only a new two (2) calendar day period under this Section 6.03(h)). Any termination of this Agreement pursuant to Section 6.03(e) or this Section 6.03(h) shall be in accordance with the applicable provisions of Section 10.01 and, to the extent required under the terms and conditions of Section 11.05(a)(i) or (a)(ii), the Company shall pay Parent the applicable Company Termination Fee in accordance with Section 11.05(a)(i) or (a)(ii), as applicable.
(i) As used in this Agreement.:
Appears in 1 contract
Go-Shop; No Solicitation. (a) Notwithstanding anything to the contrary contained in this Agreement, during Go-Shop.
(i) During the period beginning (the “Go-Shop Period”) commencing on the date of this Agreement and continuing until ending at 11:59 p.m. (Eastern time) New York City time on the twenty-first (21st) calendar day that is 60 days after the date of this Agreement (the "“Go-Shop Period"), Period End Date”) the Company and its Representatives, acting at the direction and under the supervision of the Special Committee, shall be permitted to (A) solicit, initiate, propose, encourage and facilitate any inquiry, discussion, offer or request that constitutes, or would reasonably be expected to lead to, a Competing Transaction and (B) engage in discussions and negotiations with, and furnish access to the personnel, business, properties, assets, information, work papers and books and records of the Company and the Company Subsidiaries to any Third Party in connection with a Competing Transaction or any inquiry, discussion, offer or request that may lead to a Competing Transaction; provided that, prior to furnishing such information or affording such access, the Company has (I) entered into an Acceptable Confidentiality Agreement with such person and (II) previously provided or made available (or substantially concurrently provides or makes available) such information to Parent. Notwithstanding anything in this Section 8.04(a) to the contrary, the Company shall not, and shall not permit its Subsidiaries to, reimburse or agree to reimburse the expenses of any Third Party (other than the Company’s Representatives) in connection with a Competing Transaction or any other such inquiry, discussion, offer or request.
(ii) On the Go-Shop Period End Date (A) the Company shall, and shall cause each of the Company Subsidiaries and each of its and their respective directorsRepresentatives to, officersimmediately cease and cause to be terminated any existing solicitation of, employeesor discussions or negotiations with, investment bankersany Third Party (other than Excluded Parties) relating to any Competing Transaction or any inquiry, attorneysdiscussion, accountants offer or request that could reasonably be expected to lead to a Competing Transaction and (B) the Company shall as promptly as possible request each Third Party (other advisors than any Excluded Party) that has previously executed a confidentiality or representatives (collectively, "Representatives") shall have similar agreement in connection with its consideration of a Competing Transaction to return to the right to: (i) initiate, solicit and encourage Company or destroy any inquiry or the making of any proposals or offers that constitute Acquisition Proposals, including by way of providing access to non-public information to any Person pursuant to a confidentiality agreement that constitutes an Acceptable Confidentiality Agreement; provided that the Company shall promptly (and in any event within twenty-four (24) hours thereafter) make previously furnished or made available to Parent and Merger Sub such person or any material non-public information concerning of its Representatives by or on behalf of the Company or its Subsidiaries Representatives in accordance with the terms of the confidentiality agreement in place with such person.
(iii) As promptly as reasonably practicable following the determination by the Special Committee that a person is an Excluded Party and, in any event, no later than two Business Days after the Company provides to any Person given earlier of (i) the date of such access that was not previously made available to Parent or Merger Sub, determination and (ii) engage or enter into or otherwise participate in any discussions or negotiations with any Persons or groups of Persons with respect to any Acquisition Proposals or otherwise cooperate with or assist or participate in, or facilitate any such inquiries, proposals, discussions or negotiations or any effort or attempt to make any Acquisition Proposals. Within one (1) Business Day following the conclusion of the Go-Shop PeriodPeriod End Date, the Company shall notify deliver to Parent on behalf of the number of Excluded Parties and provide Parent with Special Committee a written notice setting forth (I) the identity of each Excluded Party and (II) a reasonably detailed summary of the material terms and conditions of any pending Competing Transaction Acquisition Proposal received from any made by such Excluded Party (which material terms and conditions shall include it being understood that price per share, transaction structure (to the identity extent part of the Person or group of Persons making the Acquisition Proposal).
(b) Except as expressly permitted by this Section 6.4 and except as may relate to any Excluded Party, the Company and its Subsidiaries and their respective officers and directors shall, and the Company shall use its reasonable best efforts to instruct and cause its and its Subsidiaries' other Representatives to, (i) at 12:00 a.m. on the twenty-second (22nd) calendar day after the date of this Agreement (the "No-Shop Period Start Date") immediately cease any discussions or negotiations with any Persons that may be ongoing with respect to an Acquisition Proposal, and (ii) from the No-Shop Period Start Date until the earlier of the Effective Time and the termination of this Agreement in accordance with Article 10, the Company shall not, and shall cause its Subsidiaries not to, and shall not authorize or permit its and its Subsidiaries' Representatives to, directly or indirectly, solicit, initiate or knowingly take any action to facilitate or encourage the submission of any Acquisition Proposal or the making of any proposal that could reasonably be expected to lead to any Acquisition Proposal, or, subject to Section 6.4(cCompeting Transaction), (1) conduct or engage in any discussions or negotiations with, disclose any non-public information relating to the Company or any of its Subsidiaries to, afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, or knowingly assist, participate in, facilitate or encourage any effort by, any third party that is seeking to make, or has made, any Acquisition Proposal, (2) (A) amend or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries or (B) approve any transaction under, or any third party becoming an "interested stockholder" under, Section 78.423 of Nevada Law, or (3) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Acquisition Proposal (each, a "Company Acquisition Agreement"). Subject to Section 6.4(c), neither the Company Board nor any committee thereof shall fail to make, withdraw, amend, modify or materially qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, or recommend an Acquisition Proposal, or make any public statement inconsistent with the Company Board Recommendation, or resolve or agree to take any of the foregoing actions (any of the foregoing, an "Adverse Recommendation Change"). The Company shall, closing conditions and shall cause its Subsidiaries to cease immediately and cause to be terminated, and shall not authorize or knowingly permit any of its or their Representatives to continue, any and all existing activities, discussions or negotiations, if any, with any third party conducted prior to the date hereof with respect to any Acquisition Proposal.
(c) Notwithstanding Section 6.4(a), at any time following the No-Shop Period Start Date and prior to the Acceptance Date, the Company Board, directly or indirectly through any Representative, may, subject to Section 6.4(d) (i) participate in negotiations or discussions with any third party that has made (and not withdrawn) a bona fide, unsolicited Acquisition Proposal in writing that the Company Board believes in good faith, after consultation with outside legal counsel and the Company Financial Advisor, constitutes or would reasonably be expected to result in a Superior Proposal, (ii) thereafter furnish to such third party non-public information relating to the Company or any of its Subsidiaries pursuant to an executed confidentiality agreement that constitutes an Acceptable Confidentiality Agreement (a copy of which confidentiality agreement financing provisions shall be promptly (in all events within twenty-four (24) hours) provided for informational purposes only to Parent), (iii) following receipt of and on account of a Superior Proposal, make an Adverse Recommendation Change, and/or (iv) take any action that any court of competent jurisdiction orders the Company to take (which order remains unstayed), but in each case referred to in the foregoing clauses (i) through (iv), only if the Company Board determines in good faith, after consultation with outside legal counsel, that the failure to take such action would reasonably be expected to cause the Company Board to be in breach of its fiduciary duties under Nevada Law. Nothing contained herein shall prevent the Company Board from disclosing to the Company's stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act with regard to an Acquisition Proposal, if the Company determines, after consultation with outside legal counsel, that failure to disclose such position would constitute a violation of Applicable Law. For the avoidance of doubt, notwithstanding the occurrence of the No-Shop Period Start Date, the Company may continue to engage in the activities described in Section 6.4(a) with respect to any Excluded Party and the restrictions in Section 6.4(b) shall not apply with respect thereto.
(d) The Company Board shall not take any of the actions referred to in clauses (i) through (iv) of Section 6.4(c) unless the Company shall have delivered to Parent a prior written notice advising Parent that it intends to take such action. The Company shall notify Parent promptly (but in no event later than twenty-four (24) hours) after it obtains Knowledge of the receipt by the Company (or any of its Representatives) of any Acquisition Proposal, any inquiry that would reasonably be expected to lead to an Acquisition Proposal, any request for non-public information relating to the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of the Company or any of its Subsidiaries by any third party. In such notice, the Company shall identify the third party making, and details of the material terms and conditions of, any such Acquisition Proposal, indication or request. The Company shall keep Parent fully informed, on a current basis, of the status and considered material terms of any such Acquisition Proposal, indication or request, including any material amendments or proposed amendments as to price and other material terms thereof. The Company shall provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company Board (or such lesser notice as is provided to the members of the Company Board) at which the Company Board is reasonably expected to consider any Acquisition Proposal. The Company shall promptly provide Parent with a list of any non-public information concerning the Company's business, present or future performance, financial condition or results of operations, provided to any third party, and, to the extent such information has not been previously provided to Parent, copies of such informationpending Competing Transaction).
(e) Except as set forth in this Section 6.4(e), the Company Board shall not make any Adverse Recommendation Change or enter into (or permit any Subsidiary to enter into) a Company Acquisition Agreement. Notwithstanding the foregoing, at any time prior to the Offer Closing, the Company Board may make an Adverse Recommendation Change or enter into (or permit any Subsidiary to enter into) a Company Acquisition Agreement, if: (i) the Company promptly notifies Parent, in writing, at least two (2) Business Days (the "Notice Period") before making an Adverse Recommendation Change or entering into (or causing a Subsidiary to enter into) a Company Acquisition Agreement, of its intention to take such action with respect to a Superior Proposal, which notice shall state expressly that the Company has received an Acquisition Proposal that the Company Board intends to declare a Superior Proposal and that the Company Board intends to make an Adverse Recommendation Change and/or the Company intends to enter into a Company Acquisition Agreement; (ii) the Company attaches to such notice the most current version of the proposed agreement (which version shall be updated on a prompt basis) and the identity of the third party making such Superior Proposal; (iii) the Company shall, and shall cause its Subsidiaries to, and shall use its reasonable best efforts to cause its and its Subsidiaries' Representatives to, during the Notice Period, negotiate with Parent in good faith to make such adjustments in the terms and conditions of this Agreement so that such Acquisition Proposal ceases to constitute a Superior Proposal, if Parent, in its discretion, proposes to make such adjustments (it being agreed that in the event that, after commencement of the Notice Period, there is any material revision to the terms of a Superior Proposal, including, any revision in price, the Notice Period shall be extended, if applicable, to ensure that at least two (2) Business Days remains in the Notice Period subsequent to the time the Company notifies Parent of any such material revision (it being understood that there may be multiple extensions)); and (iv) the Company Board determines in good faith, after consulting with outside legal counsel and the Company Financial Advisor, that such Acquisition Proposal continues to constitute a Superior Proposal after taking into account any adjustments made by Parent during the Notice Period in the terms and conditions of this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Stonemor Inc.)
Go-Shop; No Solicitation. (a) Notwithstanding anything to the contrary contained in this Agreement, during the period beginning on the date of this Agreement and continuing until 11:59 p.m. (Eastern New York time) on the twenty-first (21st) calendar day after the date of this Agreement September 27, 2019 (the "Go“No-Shop Period"Period Start Date”), the Company and its Subsidiaries and their respective directors, officers, employees, investment bankers, attorneys, accountants and other advisors or representatives (collectively, "Representatives") Representatives shall have the right to: , directly or indirectly, (i) initiate, solicit solicit, facilitate and encourage any inquiry or the making of any proposals proposal or offers offer from any Person that constitute constitutes, or could reasonably be expected to lead to, an Acquisition ProposalsProposal, including by way of providing access to non-public information to any such Person pursuant to a confidentiality agreement that constitutes and its Representatives, so long as such Person has executed an Acceptable Confidentiality Agreement; , provided that the Company shall shall, promptly (and in any event within twenty-four (2424 hours) hours thereafter) make available after furnishing such information to such Person, furnish to Parent and Merger Sub any material non-public such information concerning relating to the Company or its Subsidiaries that the Company provides to any Person given such access Acquired Companies that was not previously provided or made available to Parent or Merger SubParent, and (ii) initiate, engage or enter into in, continue or otherwise participate in any discussions or negotiations with any Persons or groups of Persons with respect to Person regarding any Acquisition Proposals or Proposal; and (iii) otherwise cooperate with or with, assist or participate in, in or facilitate any such inquiries, proposals, discussions or negotiations with, or any effort or attempt to make any Acquisition ProposalsProposal by, any Person. Within one (1) Business Day following On the conclusion of the GoNo-Shop PeriodPeriod Start Date, the Company shall notify Parent in writing of the number identity of each Excluded Parties Person (including each Person within any group of Persons) and provide Parent with a written summary of the then-current material terms and conditions of any Acquisition Proposal received from any each such Excluded Party (which material terms and conditions shall include the identity of the Person or group of Persons making the Person’s Acquisition Proposal).
(b) Except as expressly permitted by this Subject to the provisions of Section 6.4 4.3(c) and except as may relate with respect to any Excluded PartyPerson (but only for so long as such Person is an Excluded Person), the Company and its Subsidiaries and their respective officers and directors shall, and the Company shall use its reasonable best efforts to instruct and cause its and its Subsidiaries' other Representatives to, (i) at 12:00 a.m. on the twenty-second (22nd) calendar day after the date of this Agreement (the "No-Shop Period Start Date") immediately cease any discussions or negotiations with any Persons that may be ongoing with respect to an Acquisition Proposal, and (ii) from the No-Shop Period Start Date until the earlier of the Effective Time and or, if earlier, the valid termination of this Agreement in accordance with Article 10its terms, the Company shall notnot (and shall not resolve or publicly propose to) directly or indirectly, and shall cause its ensure that each of the Company’s controlled Subsidiaries (excluding, for the avoidance of doubt, GAC) do not (and do not resolve or publicly propose to), and shall use reasonable best efforts to cause (including by exercising any rights under any applicable governing document) each of the other Acquired Companies not authorize to (and not to resolve or permit publicly propose to), and shall use its reasonable best efforts to cause its and its Subsidiaries' their respective Representatives not to, directly or indirectly, indirectly (other than with respect to Parent and Merger Sub and their respective Representatives acting on Parent’s behalf): (i) solicit, initiate initiate, knowingly encourage, assist, knowingly induce or knowingly take any action to facilitate the making, submission or encourage the submission announcement of any Acquisition Proposal Proposal; (ii) furnish or the making of any proposal that could reasonably be expected to lead otherwise provide access to any information regarding any of the Acquired Companies to any Person in connection with or in response to an Acquisition Proposal; (iii) other than informing any Person of the existence of the provisions in this Section 4.3, or, subject to Section 6.4(c), (1) conduct or engage in any discussions or negotiations with, disclose any non-public information relating to the Company or any of its Subsidiaries to, afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, or knowingly assist, participate in, facilitate or encourage any effort by, any third party that is seeking to make, or has made, any Acquisition Proposal, (2) (A) amend or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries or (B) approve any transaction under, or any third party becoming an "interested stockholder" under, Section 78.423 of Nevada Law, or (3) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Acquisition Proposal (each, a "Company Acquisition Agreement"). Subject to Section 6.4(c), neither the Company Board nor any committee thereof shall fail to make, withdraw, amend, modify or materially qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, or recommend an Acquisition Proposal, or make any public statement inconsistent with the Company Board Recommendation, or resolve or agree to take any of the foregoing actions (any of the foregoing, an "Adverse Recommendation Change"). The Company shall, and shall cause its Subsidiaries to cease immediately and cause to be terminated, and shall not authorize or knowingly permit any of its or their Representatives to continue, any and all existing activities, discussions or negotiations, if any, with any third party conducted prior to the date hereof Person with respect to any Acquisition Proposal; provided, however, that the Company and its Representatives shall be permitted to ascertain facts with regard to or clarify terms of an Acquisition Proposal solely to the extent necessary to permit the Company’s board of directors to have sufficient information to make the determination described in Section 4.3(c); (iv) approve, endorse or recommend any Acquisition Proposal; or (v) enter into any letter of intent, memorandum of understanding, agreement in principle or similar document or any Contract constituting or relating directly or indirectly to, or that would reasonably be expected to result directly or indirectly in, an Acquisition Transaction.
(c) Notwithstanding anything to the contrary contained in Section 6.4(a4.3(b), at any time following on or after the No-Shop Period Start Date and prior to the Acceptance Dateadoption of this Agreement by the Required Company Stockholder Vote, the Company Boardmay furnish non-public information regarding the Acquired Companies to, directly and may enter into discussions or indirectly through negotiations with, any RepresentativePerson in response to an unsolicited, maybona fide, subject written Acquisition Proposal that is submitted to Section 6.4(d) (i) participate in negotiations or discussions with any third party that has made the Company after the date of this Agreement by such Person (and not withdrawn) a bona fide, unsolicited Acquisition Proposal if: (i) none of the Acquired Companies or any of their respective Representatives shall have materially breached any of the provisions set forth in writing that this Section 4.3; (ii) the Company Board believes Company’s board of directors determines in good faith, after consultation with having taken into account the advice of an independent financial advisor and the Company’s outside legal counsel and the Company Financial Advisorcounsel, that such Acquisition Proposal constitutes or would could reasonably be expected to result in a Superior Proposal, (ii) thereafter furnish to such third party non-public information relating to the Company or any of its Subsidiaries pursuant to an executed confidentiality agreement that constitutes an Acceptable Confidentiality Agreement (a copy of which confidentiality agreement shall be promptly (in all events within twenty-four (24) hours) provided for informational purposes only to Parent), Offer; (iii) following receipt the Company’s board of and on account of a Superior Proposal, make an Adverse Recommendation Change, and/or (iv) take any action that any court of competent jurisdiction orders the Company to take (which order remains unstayed), but in each case referred to in the foregoing clauses (i) through (iv), only if the Company Board directors determines in good faith, after consultation with having taken into account the advice of the Company’s outside legal counsel, that the failure to take such action would reasonably be expected to cause the Company Board to be in breach of inconsistent with its fiduciary duties under Nevada Law. Nothing contained herein shall prevent the Company Board from disclosing obligations to the Company's ’s stockholders a position contemplated under applicable New York law; (iv) prior to furnishing any such non-public information to such Person, the Company receives from such Person an executed Acceptable Confidentiality Agreement; and (v) promptly (and in any event within 24 hours) of furnishing any non-public information to such Person, the Company furnishes such non-public information to Parent (to the extent such non-public information has not been previously furnished by Rule 14d-9 the Company to Parent).
(d) If the Company, any other Acquired Company or any Representative of any Acquired Company (acting on behalf of such Acquired Company) receives an Acquisition Proposal or any request for non-public information regarding the Acquired Companies that would reasonably be expected to relate directly or indirectly to an Acquisition Transaction at any time during the Pre-Closing Period but after the No-Shop Period Start Date, then the Company shall promptly (and Rule 14e-2(ain no event later than 24 hours after receipt of such Acquisition Proposal or request): (i) promulgated under advise Parent both orally and in writing of such Acquisition Proposal or request (including the Exchange Act with regard to identity of the Person making or submitting such Acquisition Proposal or request, and, in the case of an Acquisition Proposal, if the material terms and conditions thereof); and (ii) provide Parent with copies of any written indication of interest or similar document received by any Acquired Company determinesor any Representative of any Acquired Company setting forth the material terms and conditions of such Acquisition Proposal or any material modification or proposed material modification thereto. The Company shall keep Parent promptly informed of any material development regarding, after consultation with outside legal counselor material change in the status of, that failure to disclose any such position would constitute a violation of Applicable LawAcquisition Proposal or request. For the avoidance of doubt, notwithstanding the occurrence Company may not furnish non-public information regarding the Acquired Companies to, and may not enter into discussions or negotiations with, any Person (other than Parent and its Representatives) regarding any Acquisition Proposal after the adoption of this Agreement by the Required Company Stockholder Vote.
(e) From and after the No-Shop Period Start Date, the Company may continue to engage in the activities described in Section 6.4(a) with respect to any Excluded Party and the restrictions in Section 6.4(b) shall, shall not apply with respect thereto.
(d) The Company Board shall not take any ensure that each of the actions referred to in clauses Company’s controlled Subsidiaries (iexcluding, for the avoidance of doubt, GAC) through (iv) of Section 6.4(c) unless the Company shall have delivered to Parent a prior written notice advising Parent that it intends to take such action. The Company shall notify Parent promptly (but in no event later than twenty-four (24) hours) after it obtains Knowledge of the receipt by the Company (or any of its Representatives) of any Acquisition Proposal, any inquiry that would reasonably be expected to lead to an Acquisition Proposal, any request for non-public information relating to the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of the Company or any of its Subsidiaries by any third party. In such notice, the Company shall identify the third party making, and details of the material terms and conditions of, any such Acquisition Proposal, indication or request. The Company shall keep Parent fully informed, on a current basis, of the status and material terms of any such Acquisition Proposal, indication or request, including any material amendments or proposed amendments as to price and other material terms thereof. The Company shall provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company Board (or such lesser notice as is provided to the members of the Company Board) at which the Company Board is reasonably expected to consider any Acquisition Proposal. The Company shall promptly provide Parent with a list of any non-public information concerning the Company's business, present or future performance, financial condition or results of operations, provided to any third party, and, to the extent such information has not been previously provided to Parent, copies of such information.
(e) Except as set forth in this Section 6.4(e), the Company Board shall not make any Adverse Recommendation Change or enter into (or permit any Subsidiary to enter into) a Company Acquisition Agreement. Notwithstanding the foregoing, at any time prior to the Offer Closing, the Company Board may make an Adverse Recommendation Change or enter into (or permit any Subsidiary to enter into) a Company Acquisition Agreement, if: (i) the Company promptly notifies Parent, in writing, at least two (2) Business Days (the "Notice Period") before making an Adverse Recommendation Change or entering into (or causing a Subsidiary to enter into) a Company Acquisition Agreement, of its intention to take such action with respect to a Superior Proposal, which notice shall state expressly that the Company has received an Acquisition Proposal that the Company Board intends to declare a Superior Proposal and that the Company Board intends to make an Adverse Recommendation Change and/or the Company intends to enter into a Company Acquisition Agreement; (ii) the Company attaches to such notice the most current version of the proposed agreement (which version shall be updated on a prompt basis) and the identity of the third party making such Superior Proposal; (iii) the Company shall, and shall use reasonable best efforts to cause its Subsidiaries (including by exercising any rights under any applicable governing document) each of the other Acquired Companies to, and shall use its reasonable best efforts to cause its and its Subsidiaries' their respective Representatives to, during immediately cease and cause to be terminated any existing solicitation or encouragement of, or discussions or negotiations with, any Person, other than an Excluded Person and its Representatives (but only for so long as such Person is an Excluded Person), relating to any Acquisition Proposal.
(f) The Company agrees that it: (i) will not, and it shall ensure that each of the Notice PeriodCompany’s controlled Subsidiaries (excluding, negotiate for the avoidance of doubt, GAC) do not, and shall use reasonable best efforts to cause (including by exercising any rights under any applicable governing document) each of the other Acquired Companies not to, release or permit the release of any Person from, or amend, waive or permit the amendment or waiver of any provision of, any confidentiality, non-solicitation, no-hire, “standstill” or similar agreement or provision to which any of the Acquired Companies is or becomes a party or under which any of the Acquired Companies has or acquires any rights; and (ii) will use its reasonable best efforts to enforce or cause to be enforced each such agreement or provision; provided, however, that, for the avoidance of doubt, the foregoing shall not apply with Parent in good faith respect to make such adjustments any confidentiality, non-solicit, no-hire or similar provisions in the Acquired Companies’ commercial Contracts with clients and subcontractors entered into in the ordinary course of business to the extent that such Contracts are not related to, or reasonably expected to relate to, any Acquisition Proposal.
(g) On the No-Shop Period Start Date, the Company shall (i) request each Person (other than any Excluded Person) that has executed a confidentiality or similar agreement in connection with such Person’s consideration of a possible Acquisition Proposal or investment in any Acquired Company to return or destroy all confidential information previously furnished to such Person by or on behalf of any of the Acquired Companies in accordance with the terms of the confidentiality or similar agreement to which such Person is party and conditions (ii) prohibit any such Person (other than any Excluded Person) from having access to any physical or electronic data room relating to any possible Acquisition Proposal. If at any time any Excluded Person no longer qualifies as an Excluded Person under the terms of this Agreement, the Company shall promptly (i) request such Person(s) to return or destroy all confidential information previously furnished to such Person(s) by or on behalf of any of the Acquired Companies in accordance with the terms of the confidentiality or similar agreement to which such Person(s) is party and (ii) prohibit such Person(s) from having access to any physical or electronic data room relating to any possible Acquisition Proposal; for the avoidance of doubt, the other provisions of this Agreement so applicable to Excluded Persons shall cease to apply with respect to such Person(s).
(h) The Company acknowledges and agrees that any action taken by any Representative of any Acquired Company (whether or not such Acquisition Proposal ceases Representative is purporting to act on behalf of any of the Acquired Companies) which, if taken by the Company, would constitute a breach of any provision set forth in this Section 4.3 shall be deemed to constitute a Superior Proposal, if Parent, in its discretion, proposes to make breach of such adjustments (it being agreed that in provision by the event that, after commencement of the Notice Period, there is any material revision to the terms of a Superior Proposal, including, any revision in price, the Notice Period shall be extended, if applicable, to ensure that at least two (2) Business Days remains in the Notice Period subsequent to the time the Company notifies Parent of any such material revision (it being understood that there may be multiple extensions)); and (iv) the Company Board determines in good faith, after consulting with outside legal counsel and the Company Financial Advisor, that such Acquisition Proposal continues to constitute a Superior Proposal after taking into account any adjustments made by Parent during the Notice Period in the terms and conditions of this AgreementCompany.
Appears in 1 contract
Go-Shop; No Solicitation. (a) Notwithstanding anything to the contrary contained in this Agreement, during During the period (the “Go-Shop Period”) beginning on the date of hereof and, except as may be extended for Excluded Parties in accordance with this Agreement and Section 6.4(a), continuing until 11:59 p.m. (Eastern time) p.m., New York City Time on the twenty-first (21st) calendar day after the date of this Agreement August 21, 2024 (the "Go“No-Shop Period"Period Start Date”), the Company Paramount Special Committee and its Representatives (or Paramount and its Subsidiaries and their respective directorsRepresentatives, officers, employees, investment bankers, attorneys, accountants and other advisors or representatives (collectively, "Representatives"if acting at the direction of the Paramount Special Committee) shall have the right to: , directly or indirectly, (i) solicit, initiate, solicit propose or induce the making, submission or announcement of, or encourage, facilitate or assist, any Acquisition Proposal and encourage any proposal, inquiry or offer that could be reasonably expected to lead to, result in or constitute an Acquisition Proposal, (ii) subject to the making of any proposals or offers that constitute Acquisition Proposalsentry into, and solely in accordance with, an Acceptable Confidentiality Agreement, provide information (including by way of providing access to non-public information and data) relating to Paramount or any of its Subsidiaries and afford access to the business, properties, assets, books, records or other non-public information, or to any personnel, of Paramount or any of its Subsidiaries to any Person pursuant to a confidentiality agreement that constitutes an Acceptable Confidentiality Agreement; provided that the Company shall promptly (and its Representatives, in any event within twenty-four such case with the intent to induce the making, submission or announcement of an Acquisition Proposal (24or inquiries, proposals or offers or other efforts that could lead to any Acquisition Proposals); provided, however that (1) hours thereafterthe Paramount Special Committee (or Paramount, acting at the direction of the Paramount Special Committee) make available also provides Skydance, prior to Parent and Merger Sub any material or substantially concurrently with the time such non-public information concerning the Company is provided or made available to such Person or its Subsidiaries that the Company provides Representatives, any non-public information furnished to any such other Person given such access or its Representatives that was not previously furnished or made available to Parent Skydance or Merger Sub, its Representatives and (ii2) any competitively sensitive non-public information provided to any Person who is or who has one or more Affiliates that is a competitor of Paramount or any of its Subsidiaries in connection with the actions permitted by this Section 6.4(a) shall be provided in accordance with customary “clean room” or other similar procedures as reasonably determined by the Paramount Special Committee (or Paramount, acting at the direction of the Paramount Special Committee) and (iii) engage or in, enter into into, continue or otherwise participate in in, any discussions or negotiations with any Persons or groups of Persons and their respective Representatives with respect to any Acquisition Proposals (or otherwise inquiries, proposals or offers or other efforts that could lead to any Acquisition Proposals), and cooperate with or assist or participate in, in or facilitate any such inquiries, proposals, offers, discussions or negotiations or any effort or attempt to make any Acquisition Proposals. Within one , including granting a waiver, amendment or release under (1A) Business Day following the conclusion of the Goany pre-Shop Periodexisting standstill or similar provision to allow for a confidential Acquisition Proposal to be made to Paramount, the Company shall notify Parent of Paramount Special Committee or the number of Excluded Parties Paramount Board or (B) any Takeover Laws to enable discussions and provide Parent negotiations with a written summary of the material terms Paramount Special Committee and conditions of any Acquisition Proposal received from any Excluded Party its Representatives (which material terms and conditions shall include the identity of the Person or group of Persons making the Acquisition Proposal).
(b) Except as expressly permitted by this Section 6.4 and except as may relate to any Excluded Party, the Company Paramount and its Subsidiaries and their respective officers Representatives, if acting at the direction of the Paramount Special Committee) and directors shallwith NAI and its Representatives. In the event that the Paramount Special Committee and its Representatives (or Paramount and its Subsidiaries and their respective Representatives, if acting at the direction of the Paramount Special Committee) are engaged in substantive negotiations under an Acceptable Confidentiality Agreement with an Excluded Party, then the Paramount Special Committee may, by written notice to Skydance (which notice shall include the identity of any such Excluded Party) on or before August 21, 2024, extend the Go-Shop Period and the Company shall use its reasonable best efforts to instruct and cause its and its Subsidiaries' other Representatives to, (i) at 12:00 a.m. on the twenty-second (22nd) calendar day after the date of this Agreement (the "No-Shop Period Start Date"Date with respect to any such Excluded Party (and only an Excluded Party) until September 5, 2024 in order to continue to engage in the activities described in this Section 6.4(a) with any such Excluded Party solely during such extended Go-Shop Period. The Paramount Special Committee shall promptly (and in any event within 24 hours) notify Skydance in writing if any Excluded Party ceases to be an Excluded Party during the extended Go-Shop Period.
(b) On the No-Shop Period Start Date (as may be extended for Excluded Parties in accordance with Section 6.4(a)), each of Paramount and Skydance shall, shall cause its respective Subsidiaries and shall direct its and their respective Affiliates and Representatives to (i) immediately cease terminate (or cause to be terminated) any discussions or negotiations with any Persons that may be ongoing Person and its Affiliates and Representatives with respect to an Acquisition Proposal, and (ii) promptly (and in any case within twenty-four (24) hours after the beginning of the No-Shop Period Start Date) terminate (or cause to be terminated) such Person’s and its Affiliates’ and Representatives’ access to any data room or other depository of information maintained by or on behalf of such Party and its Subsidiaries for purposes of facilitating an Acquisition Proposal and (iii) promptly cease any direct or indirect solicitation, knowing encouragement, discussion, or negotiation with any such Person that may be ongoing relating to an Acquisition Proposal. Additionally, from the No-Shop Period Start Date (as may be extended for Excluded Parties in accordance with Section 6.4(a)) until the earlier to occur of the Effective Time and the termination of this Agreement in accordance with pursuant to Article 10IX and the Skydance Merger Effective Time, the Company each of Paramount and Skydance shall not, and shall cause its respective Subsidiaries not to, to and shall not authorize or permit direct its and its Subsidiaries' their respective Affiliates and Representatives not to, directly or indirectly, (A) solicit, initiate initiate, or knowingly take any action to facilitate facilitate, or knowingly encourage (including by way of furnishing non-public information), or otherwise propose or knowingly induce the submission of any Acquisition Proposal making, submission, or the making of announcement of, any proposal or offer that could constitutes, or would reasonably be expected to constitute or lead to any to, an Acquisition Proposal, or(B) engage in, subject continue, or otherwise participate in any discussion or negotiation regarding, or furnish to Section 6.4(c), any other Person (other than (1) conduct or engage Skydance and its Affiliates, NAI and its Affiliates, and any Representatives of the foregoing Persons, in the case of Paramount, and (2) Paramount and its Affiliates, NAI and its Affiliates, and any discussions or negotiations withRepresentatives of the foregoing Persons, disclose in the case of Skydance), any non-public information and data relating to the Company such Party or any of its Subsidiaries toor afford to any Person (other than (1) Skydance and its Affiliates, afford NAI and its Affiliates, and any Representatives of the foregoing Persons, in the case of Paramount, and (2) Paramount and its Affiliates, NAI and its Affiliates, and any Representatives of the foregoing Persons, in the case of Skydance) access to the business, properties, assets, books books, records or records other information, or to any personnel, of the Company such Party or any of its Subsidiaries to(except pursuant to Section 220 of the DGCL, or knowingly assist, participate in, facilitate or encourage any effort by, any third party that is seeking to make, or has made, any Acquisition Proposal, (2) (A) amend or grant any waiver or release under any standstill or similar agreement with respect to any class Paramount), in each case, in connection with, or for the purpose of equity securities of the Company knowingly encouraging or knowingly facilitating, an Acquisition Proposal or any of its Subsidiaries inquiries or (B) approve any transaction under, or any third party becoming an "interested stockholder" under, Section 78.423 of Nevada Law, or (3) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Acquisition Proposal (each, a "Company Acquisition Agreement"). Subject to Section 6.4(c), neither the Company Board nor any committee thereof shall fail to make, withdraw, amend, modify or materially qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, or recommend an Acquisition Proposal, or make any public statement inconsistent with the Company Board Recommendation, or resolve or agree to take any of the foregoing actions (any of the foregoing, an "Adverse Recommendation Change"). The Company shall, and shall cause its Subsidiaries to cease immediately and cause to be terminated, and shall not authorize or knowingly permit any of its or their Representatives to continue, any and all existing activities, discussions or negotiations, if any, with any third party conducted prior to the date hereof with respect to any Acquisition Proposal.
(c) Notwithstanding Section 6.4(a), at any time following the No-Shop Period Start Date and prior to the Acceptance Date, the Company Board, directly or indirectly through any Representative, may, subject to Section 6.4(d) (i) participate in negotiations or discussions with any third party that has made (and not withdrawn) a bona fide, unsolicited Acquisition Proposal in writing that the Company Board believes in good faith, after consultation with outside legal counsel and the Company Financial Advisor, constitutes or would reasonably be expected to result in a Superior Proposal, (ii) thereafter furnish to such third party non-public information relating to the Company or any of its Subsidiaries pursuant to an executed confidentiality agreement that constitutes an Acceptable Confidentiality Agreement (a copy of which confidentiality agreement shall be promptly (in all events within twenty-four (24) hours) provided for informational purposes only to Parent), (iii) following receipt of and on account of a Superior Proposal, make an Adverse Recommendation Change, and/or (iv) take any action that any court of competent jurisdiction orders the Company to take (which order remains unstayed), but in each case referred to in the foregoing clauses (i) through (iv), only if the Company Board determines in good faith, after consultation with outside legal counsel, that the failure to take such action would reasonably be expected to cause the Company Board to be in breach of its fiduciary duties under Nevada Law. Nothing contained herein shall prevent the Company Board from disclosing to the Company's stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act with regard to an Acquisition Proposal, if the Company determines, after consultation with outside legal counsel, that failure to disclose such position would constitute a violation of Applicable Law. For the avoidance of doubt, notwithstanding the occurrence of the No-Shop Period Start Date, the Company may continue to engage in the activities described in Section 6.4(a) with respect to any Excluded Party and the restrictions in Section 6.4(b) shall not apply with respect thereto.
(d) The Company Board shall not take any of the actions referred to in clauses (i) through (iv) of Section 6.4(c) unless the Company shall have delivered to Parent a prior written notice advising Parent that it intends to take such action. The Company shall notify Parent promptly (but in no event later than twenty-four (24) hours) after it obtains Knowledge of the receipt by the Company (or any of its Representatives) making of any Acquisition Proposal, any inquiry proposal that would reasonably be expected to lead to an Acquisition Proposal, (C) approve, adopt, endorse or recommend an Acquisition Proposal or any offer or proposal that could reasonably be expected to lead to an Acquisition Proposal, (D) terminate, amend, release, modify or fail to enforce any provision (including any standstill or similar provision) of, or grant any permission, waiver or request for non-public information under, any confidentiality, standstill or similar agreement, in each case, in furtherance of an Acquisition Proposal, (E) grant any waiver, amendment or release under any Takeover Laws, (F) authorize or enter into any letter of intent, acquisition agreement, agreement in principle, or other Contract (other than, in the case of Paramount, an Acceptable Confidentiality Agreement) (an “Acquisition Agreement”) relating to an Acquisition Proposal or (G) resolve, agree or propose to do any of the Company foregoing.
(c) Each of Skydance and Paramount shall, promptly (and, in any event, within 24 hours) after receipt of any Acquisition Proposal by it or any of its Subsidiaries Affiliates or for access to Representatives, notify the business, properties, assets, books or records other Party of the Company material terms of such Acquisition Proposal and the identity of the Person or “group” making such Acquisition Proposal and shall provide the other Party with copies of any of its Subsidiaries by any third party. In such noticewritten requests, the Company shall identify the third party makingproposals or offers, including proposed agreements, and details of the material terms and conditions ofof any proposals or offers (or where no such copies are available, any such Acquisition Proposala reasonably detailed written description thereof). In addition, indication or request. The Company each of Paramount and Skydance shall, and shall cause its respective Subsidiaries and their respective Affiliates to, keep Parent fully the other Party reasonably informed, on a current prompt basis, of the status and terms of, and material terms of changes in, any such Acquisition Proposal. Paramount agrees that it will not, indication directly or requestindirectly, including enter into any material amendments agreement with any Person which directly or proposed amendments as indirectly prohibits Paramount from providing any information to price and other material terms thereofSkydance in accordance with, or otherwise complying with, this Section 6.4(c). The Company Paramount shall provide Parent with at least twenty-four promptly (24) hours prior notice of and, in any meeting event, within 24 hours), following a determination by the Paramount Board (acting upon the recommendation of the Company Board (Paramount Special Committee) or such lesser notice as the Paramount Special Committee that an Acquisition Proposal is provided to the members of the Company Board) at which the Company Board is reasonably expected to consider any Acquisition a Superior Proposal. The Company shall promptly provide Parent with a list of any non-public information concerning the Company's business, present or future performance, financial condition or results of operations, provided to any third party, and, to the extent the Paramount Board or the Paramount Special Committee is permitted to make such information has not been previously provided a determination pursuant to ParentSection 6.6, copies notify Skydance of such informationdetermination in writing.
(d) Promptly after the No-Shop Period Start Date (as may be extended for Excluded Parties in accordance with Section 6.4(a)), each of Paramount and Skydance shall deliver a written notice to each Person that entered into a confidentiality agreement with such Party relating to an Acquisition Proposal within the 180 days preceding the date of this Agreement requesting the prompt return or destruction of all confidential information previously furnished to any Person pursuant to such confidentiality agreement within such 180-day period.
(e) Except as set forth in this Section 6.4(e), the Company Board shall not make any Adverse Recommendation Change or enter into (or permit any Subsidiary to enter into) a Company Acquisition Agreement. Notwithstanding Without limiting the foregoing, at each of Skydance and Paramount agrees that if any time prior to the Offer Closing, the Company Board may make an Adverse Recommendation Change of its or enter into its Subsidiaries’ Representatives takes (or permit omits to take) any Subsidiary to enter into) a Company Acquisition Agreement, if: (i) the Company promptly notifies Parent, in writing, at least two (2) Business Days (the "Notice Period") before making an Adverse Recommendation Change or entering into action that if taken (or causing not taken) by such Party would constitute a Subsidiary to enter into) a Company Acquisition Agreementbreach of this Section 6.4, of its intention to take then such action with respect to a Superior Proposal, which notice shall state expressly that the Company has received an Acquisition Proposal that the Company Board intends to declare a Superior Proposal and that the Company Board intends to make an Adverse Recommendation Change and/or the Company intends to enter into a Company Acquisition Agreement; (iior inaction) the Company attaches to such notice the most current version of the proposed agreement (which version shall be updated on a prompt basis) and the identity of the third party making such Superior Proposal; (iii) the Company shall, and shall cause its Subsidiaries to, and shall use its reasonable best efforts to cause its and its Subsidiaries' Representatives to, during the Notice Period, negotiate with Parent in good faith to make such adjustments in the terms and conditions of this Agreement so that such Acquisition Proposal ceases deemed to constitute a Superior Proposal, if Parent, in its discretion, proposes to make such adjustments (it being agreed that in the event that, after commencement of the Notice Period, there is any material revision to the terms of a Superior Proposal, including, any revision in price, the Notice Period shall be extended, if applicable, to ensure that at least two (2) Business Days remains in the Notice Period subsequent to the time the Company notifies Parent of any such material revision (it being understood that there may be multiple extensions)); and (iv) the Company Board determines in good faith, after consulting with outside legal counsel and the Company Financial Advisor, that such Acquisition Proposal continues to constitute a Superior Proposal after taking into account any adjustments made by Parent during the Notice Period in the terms and conditions breach of this AgreementSection 6.4 by such Party.
Appears in 1 contract
Go-Shop; No Solicitation. (a) Notwithstanding anything to the contrary contained in this Agreement, during the period beginning on the date of this Agreement July 9, 2014 and continuing until 11:59 5:00 p.m. (Eastern New York time) on the twenty-first (21st) calendar day after the date of this Agreement August 9, 2014 (the "“Go-Shop Period"Period End Date”), the Company and its Subsidiaries Acquired Companies and their respective directors, officers, employees, investment bankers, attorneys, accountants and other advisors or representatives (collectively, "Representatives") Representatives shall have the right to: to (i) initiatesolicit, solicit and initiate or encourage any inquiry or the making of any proposals proposal or offers offer that constitute Acquisition Proposalsconstitutes an Alternative Proposal, including by way of providing access to information (including non-public information and data) regarding, and affording access to the business, properties, assets, books, records and personnel of, the Acquired Companies to any Person pursuant Person, if, and only if, prior to a so furnishing such information, such third party has entered into an executed confidentiality agreement substantially similar to that constitutes an Acceptable Confidentiality Agreementattached as Exhibit D; provided provided, that the Company shall (1) in the event the Company receives an Alternative Proposal, promptly notify Parent (and in any event within forty-eight (48) hours) of the determination by the Board of Directors of the Company contemplated by Section 4.05(e)(i), and (2) promptly (and in any event within twentyforty-four eight (2448) hours thereafterhours) make available to Parent and Merger Sub any material non-public information concerning the Company or its Subsidiaries that the Company provides is provided to any Person given such access that was not previously made available to Parent or Merger SubParent, and (ii) engage or in, enter into into, continue or otherwise participate in any discussions or negotiations with any Persons or groups group of Persons with respect to any Acquisition Alternative Proposals or otherwise and cooperate with or assist or participate in, in or facilitate any such inquiries, proposals, discussions or negotiations or any effort or attempt to make any Acquisition ProposalsAlternative Proposal. Within one The Company shall promptly (1and in any event within two (2) Business Day following the conclusion of the Go-Shop Period, the Company shall Days) notify Parent in writing of the number of Excluded Parties and provide Parent with a written summary of the material terms and conditions of any Acquisition Proposal received from any Excluded Party (which material terms and conditions shall include the identity of the each Person or group of Persons making from whom the Acquisition Company received a written Alternative Proposal after the execution of this Agreement and prior to the Go-Shop Period End Date and shall promptly provide Parent a copy of such written Alternative Proposal).
(b) Except as permitted by this Section 4.05, after the Go-Shop Period End Date, the Acquired Companies shall, and the Company shall cause its and its Subsidiaries’ Representatives to, (i) immediately cease any solicitation, encouragement, discussions or negotiations with any Person that may be ongoing with respect to any Alternative Proposal or a potential Alternative Proposal, (ii) terminate access to any physical or electronic data rooms relating to a possible Alternative Proposal and (iii) request that any such Person and its Representatives promptly return or destroy all confidential information concerning the Acquired Companies theretofore furnished thereto by or on behalf of the Company or any of its Subsidiaries, and destroy all analyses and other materials prepared by or on behalf of such Person that contain, reflect or analyze such information, in each case in accordance with the applicable confidentiality agreement between the Company and such Person.
(c) Except as expressly permitted by this Section 6.4 and except as may relate to any Excluded Party4.05, from the Go-Shop Period End Date until the Effective Time, or, if earlier, the termination of this Agreement in accordance with Article VI, the Company shall not, and shall cause its Subsidiaries and its and their respective officers Affiliates and directors shallRepresentatives not to, and the Company shall use its reasonable best efforts to instruct and cause its and its Subsidiaries' other Representatives todirectly or indirectly, (i) at 12:00 a.m. on solicit, initiate or knowingly encourage or facilitate any inquiry, proposal or offer with respect to, or the twentymaking, submission or announcement of, any Alternative Proposal, (ii) participate in any negotiations regarding an Alternative Proposal with, or furnish any non-second public information regarding the Company or its Subsidiaries to, any Person that has made or, to the Company’s Knowledge, is considering making an Alternative Proposal, or (22ndiii) calendar day after engage in discussions regarding an Alternative Proposal with any Person that has made or, to the Company’s Knowledge, is considering making an Alternative Proposal, except to notify such Person as to the existence of the provisions of this Section 4.05. In addition, except as expressly permitted under this Section 4.05, from the date of this Agreement until the Effective Time, or, if earlier, the termination of this Agreement in accordance with Article VI, neither the Board of Directors of the Company nor any committee thereof shall (A) grant any waiver, amendment or release under any Takeover Statutes, (B) grant any waiver, amendment or release under any confidentiality, standstill or similar agreement (or terminate or fail to enforce such agreement) except solely to the "No-extent necessary to allow such Person to make an Alternative Proposal, (C) effect any Change of Recommendation, or (D) authorize, cause or permit the Company or any of its Subsidiaries to enter into any letter of intent, agreement in principle, memorandum of understanding, confidentiality agreement or any other agreement relating to or providing for any Alternative Proposal (except for confidentiality agreements permitted under Section 4.05(e)) (an “Alternative Acquisition Agreement”).
(d) After the Go Shop Period Start End Date", the Company shall promptly (and, in any event, within forty-eight (48) immediately cease hours of the Company’s knowledge of any such event) notify Parent of the receipt of any Alternative Proposal or any inquiry, proposal, offer or request for information with respect to, or that could reasonably be expected to result in, an Alternative Proposal, or any discussions or negotiations sought to be initiated or continued with the Company, any Persons of its Subsidiaries or, to the Company’s Knowledge, any of their Representatives concerning an Alternative Proposal, indicating, in each case, the identity of the Person or group making such Alternative Proposal, inquiry, offer, proposal or request for information and a copy of any Alternative Proposal made in writing and the material terms and conditions of an Acquisition Proposal not made in writing, and thereafter shall keep Parent informed in reasonable detail, on a prompt basis (and, in any event, within forty-eight (48) hours of the Company’s or its Representatives’ knowledge of any such event), of any material developments or modifications to the terms of any such Alternative Proposal, inquiry, proposal, offer or request (including copies of any written proposed agreements) and the status of any such discussions or negotiations. The Company hereby agrees that it shall not permit its Subsidiaries to, enter into any agreement that prohibits or restricts it from providing to Parent the information contemplated by this Section 4.05(d) or complying with Section 4.05(e).
(e) Notwithstanding anything in this Section 4.05 to the contrary, at any time following the Go Shop Period End Date and prior to the receipt of the Required Stockholder Vote:
(i) if the Company receives an Alternative Proposal (provided that such Alternative Proposal does not result from any material breach of the restrictions in Section 4.05(c) above) which the Company Board determines in good faith, after consultation with the Company’s financial advisors and outside legal counsel, (A) constitutes a Superior Proposal or (B) could reasonably be expected to result in a Superior Proposal, the Company may be ongoing take the following actions: (x) furnish nonpublic information to the third party making such Alternative Proposal, if, and only if, prior to so furnishing such information, such third party has entered into an executed confidentiality agreement substantially similar to that attached as Exhibit D and (y) engage in discussions or negotiations with such third party with respect to such Alternative Proposal; provided, however, that the Company shall (1) immediately notify Parent (and in any event within forty-eight (48) hours) of the determination by the Board of Directors of the Company contemplated by this Section 4.05(e)(i), and (2) promptly (and in any event within forty-eight (48) hours) make available to Parent any non-public information concerning the Company or its Subsidiaries that is provided to any such third party that was not previously made available to Parent and (3) otherwise continue to comply with Section 4.05(d); and
(ii) if the Company receives an Acquisition Alternative Proposal (provided that such Alternative Proposal does not arise from any material breach of the restrictions in Section 4.05(c)) that the Company Board determines in good faith after consultation with its financial advisors and outside legal counsel that such Alternative Proposal constitutes a Superior Proposal (after considering the timing and financing of such Alternative Proposal and the identity of the Person making such Alternative Proposal, and taking into account any adjustment to the terms and conditions of the Merger proposed by Parent in response to such Alternative Proposal, as permitted below), then, the Company may terminate this Agreement in accordance with Section 6.01(f) if and only if (iiA) the Company shall have given written notice to Parent at least five (5) Business Days in advance to the effect that the Company has received such Superior Proposal (a “Superior Proposal Notice”), and the Board of Directors of the Company intends to terminate this Agreement pursuant to Section 6.01(f) unless Parent proposes any revisions to the terms and conditions of this Agreement that renders such Alternative Proposal no longer a Superior Proposal, specifying the identity of the Person or group making the Superior Proposal, and attaching a copy of all relevant transaction agreements and other material documents relating to such Superior Proposal, including any agreements committing to finance such Superior Proposal (or, where no such copy is available, a description of the material terms and conditions of such Superior Proposal), (B) during the five (5) Business Days following the delivery of such Superior Proposal Notice (the “Notice Period”), the Company Board shall and shall cause its Representatives to, negotiate with Parent and its Representatives in good faith (to the extent Parent desires to negotiate) to make adjustments to the terms and conditions of this Agreement and (C) upon the expiration of the Notice Period, either (1) Parent shall not have proposed revisions to the terms and conditions of this Agreement, or (2) if Parent within such period shall have proposed revisions to the terms and conditions of this Agreement, the Company Board, after consultation with the Company’s financial advisors and outside legal counsel, shall have determined in good faith that the third party’s Alternative Proposal remains a Superior Proposal with respect to Parent’s revised proposal; provided, that each time material modifications to the terms of an Alternative Proposal determined to be Superior Proposal are made (it being understood any change to the financial terms of such proposal shall be deemed a material modification), the Company shall notify Parent of such modification and the time period set forth in the preceding clause (B) shall be extended for three (3) Business Days.
(f) Notwithstanding anything in this Section 4.05 to the contrary, at any time prior to the receipt of the Required Stockholder Vote, other than in connection with a Superior Proposal, if an Intervening Event shall have occurred, the Company Board may withdraw (or qualify or modify in a manner adverse to Parent) the Recommendation solely in respect of such Intervening Event, or publicly propose to do so, if (A) the Company provides Parent with written information describing such Intervening Event in reasonable detail as soon as reasonably practicable after becoming aware of it, (B) the Board of Directors of the Company determines in good faith, after consultation with the Company’s financial advisors and its outside legal counsel, that the failure of the Board of Directors of the Company to effect such Change of Recommendation would be inconsistent with its fiduciary duties under applicable Law, (C) the Company shall have given written notice to Parent at least five (5) Business Days in advance of making any Change of Recommendation with respect to such Intervening Event to the effect that an Intervening Event has occurred, specifying the facts and circumstances of such Intervening Event in reasonable detail, and informing Parent that the Board of Directors of the Company intends to effect a Change of Recommendation with respect to such Intervening Event, (D) during such five (5) Business Day period, the Board of Directors of the Company shall and shall cause its Representatives to, negotiate with Parent and its Representatives in good faith (to the extent Parent desires to negotiate) to make adjustments to the terms and conditions of this Agreement and (E) upon the expiration of such five (5) Business Day period, the Board of Directors of the Company, after consultation with the Company’s financial advisors and outside legal counsel, shall have determined in good faith that, after taking into account proposed revisions (if any) by Parent to the terms and conditions of this Agreement, the failure to effect a Change of Recommendation with respect to such Intervening Event would be inconsistent with its fiduciary duties under applicable Law; provided, that the Company shall deliver a new written notice to Parent in accordance with clause (B) above in connection with any material change to the facts and circumstances relating to such Intervening Event and comply again with the requirements of clauses (C) and (D) above.
(g) Nothing contained in this Agreement shall prohibit the Company or the Company Board from making any disclosure to its stockholders if the No-Shop Period Start Date until Company Board determines in good faith, after consultation with the Company’s outside legal counsel, that the failure of the Company Board to make such disclosure would be reasonably likely to be inconsistent with the directors’ exercise of their fiduciary obligations to the Company’s stockholders under applicable Law; provided, however, that in any event the Board of Directors of the Company shall not effect a Change of Recommendation except in accordance with Section 4.05(f). Any public disclosure by the Company or the Company Board or any committee thereof relating to any determination or other action by the Company Board or any committee thereof with respect to any Alternative Proposal shall be deemed to be a Change of Recommendation unless the Company Board expressly publicly reaffirms its Recommendation in such disclosure.
(h) Until the earlier of the Effective Time and the termination of this Agreement in accordance with Article 10VI, the approval of the Company shall not, Board for purposes of causing any Takeover Statutes to be inapplicable to the Merger and shall cause its Subsidiaries not to, and other transactions contemplated by this Agreement shall not authorize be amended and no Change of Recommendation or permit its other action shall change such approval.
(i) As used in this Agreement, “Alternative Proposal” shall mean any bona fide proposal or offer made by any Person (other than Parent and its Subsidiaries' Representatives toAffiliates) for (i) a merger, directly reorganization, share exchange, consolidation, business combination, recapitalization, dissolution, liquidation or indirectly, solicit, initiate or knowingly take any action to facilitate or encourage similar transaction involving the submission of any Acquisition Proposal or the making of any proposal that could reasonably be expected to lead to any Acquisition Proposal, or, subject to Section 6.4(c), (1) conduct or engage Company which would result in any discussions or negotiations with, disclose any non-public information relating to Person beneficially owning more than forty percent (40%) of the Company or any of its Subsidiaries to, afford access to the business, properties, assets, books or records outstanding equity interests of the Company or any of its Subsidiaries to, successor or knowingly assist, participate in, facilitate or encourage any effort by, any third party that is seeking to make, or has made, any Acquisition Proposalparent company thereto, (2ii) the acquisition by any Person (A) amend or grant including by any waiver or release under any standstill asset acquisition, joint venture or similar agreement with respect to any class transaction) of assets (including equity securities of any Subsidiary of the Company) representing more than forty percent (40%) of the assets, revenues or net income of the Company and its Subsidiaries, on a consolidated basis, (iii) any acquisition (including by tender or exchange offer) by any Person that if consummated would result in any Person beneficially owning more than forty percent (40%) of its Subsidiaries the voting power of the outstanding shares of Company Common Stock or (Biv) approve any transaction under, or any third party becoming an "interested stockholder" under, Section 78.423 of Nevada Law, or (3) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Acquisition Proposal (each, a "Company Acquisition Agreement"). Subject to Section 6.4(c), neither the Company Board nor any committee thereof shall fail to make, withdraw, amend, modify or materially qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, or recommend an Acquisition Proposal, or make any public statement inconsistent with the Company Board Recommendation, or resolve or agree to take any of the foregoing actions (any combination of the foregoing, an "Adverse Recommendation Change"). The Company shall, and shall cause its Subsidiaries to cease immediately and cause to be terminated, and shall not authorize or knowingly permit any of its or their Representatives to continue, any and all existing activities, discussions or negotiations, if any, with any third party conducted prior to the date hereof with respect to any Acquisition Proposal.
(c) Notwithstanding Section 6.4(a), at any time following the No-Shop Period Start Date and prior to the Acceptance Date, the Company Board, directly or indirectly through any Representative, may, subject to Section 6.4(d) (i) participate in negotiations or discussions with any third party that has made (and not withdrawn) a bona fide, unsolicited Acquisition Proposal in writing that the Company Board believes in good faith, after consultation with outside legal counsel and the Company Financial Advisor, constitutes or would reasonably be expected to result in a Superior Proposal, (ii) thereafter furnish to such third party non-public information relating to the Company or any of its Subsidiaries pursuant to an executed confidentiality agreement that constitutes an Acceptable Confidentiality Agreement (a copy of which confidentiality agreement shall be promptly (in all events within twenty-four (24) hours) provided for informational purposes only to Parent), (iii) following receipt of and on account of a Superior Proposal, make an Adverse Recommendation Change, and/or (iv) take any action that any court of competent jurisdiction orders the Company to take (which order remains unstayed), but in each case referred to in the foregoing clauses of subclause (i) through (iv), only if the Company Board determines in good faith, after consultation with outside legal counsel, that the failure to take such action would reasonably be expected to cause the Company Board to be in breach of its fiduciary duties under Nevada Law. Nothing contained herein shall prevent the Company Board from disclosing to the Company's stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act with regard to an Acquisition Proposal, if the Company determines, after consultation with outside legal counsel, that failure to disclose such position would constitute a violation of Applicable Law. For the avoidance of doubt, notwithstanding the occurrence of the No-Shop Period Start Date, the Company may continue to engage in the activities described in Section 6.4(a) with respect to any Excluded Party and the restrictions in Section 6.4(b) shall not apply with respect thereto.
(d) The Company Board shall not take any of the actions referred to in clauses (i) through (iv) of Section 6.4(c) unless the Company shall have delivered to Parent a prior written notice advising Parent that it intends to take such action. The Company shall notify Parent promptly (but in no event later than twenty-four (24) hours) after it obtains Knowledge of the receipt by the Company (or any of its Representatives) of any Acquisition Proposal, any inquiry that would reasonably be expected to lead to an Acquisition Proposal, any request for non-public information relating to the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of the Company or any of its Subsidiaries by any third party. In such notice, the Company shall identify the third party making, and details of the material terms and conditions of, any such Acquisition Proposal, indication or request. The Company shall keep Parent fully informed, on a current basis, of the status and material terms of any such Acquisition Proposal, indication or request, including any material amendments or proposed amendments as to price and other material terms thereof. The Company shall provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company Board (or such lesser notice as is provided to the members of the Company Board) at which the Company Board is reasonably expected to consider any Acquisition Proposal. The Company shall promptly provide Parent with a list of any non-public information concerning the Company's business, present or future performance, financial condition or results of operations, provided to any third party, and, to the extent such information has not been previously provided to Parent, copies of such information.
(e) Except as set forth in this Section 6.4(e), the Company Board shall not make any Adverse Recommendation Change or enter into (or permit any Subsidiary to enter into) a Company Acquisition Agreement. Notwithstanding the foregoing, at any time prior to the Offer Closing, the Company Board may make an Adverse Recommendation Change or enter into (or permit any Subsidiary to enter into) a Company Acquisition Agreement, if: (i) the Company promptly notifies Parent, in writing, at least two (2) Business Days (the "Notice Period") before making an Adverse Recommendation Change or entering into (or causing a Subsidiary to enter into) a Company Acquisition Agreement, of its intention to take such action with respect to a Superior Proposal, which notice shall state expressly that the Company has received an Acquisition Proposal that the Company Board intends to declare a Superior Proposal and that the Company Board intends to make an Adverse Recommendation Change and/or the Company intends to enter into a Company Acquisition Agreement; (ii) the Company attaches to such notice the most current version of the proposed agreement (which version shall be updated on a prompt basis) and the identity of the third party making such Superior Proposal; (iii) the Company shall, and shall cause its Subsidiaries to, and shall use its reasonable best efforts to cause its and its Subsidiaries' Representatives to, during the Notice Period, negotiate with Parent whether in good faith to make such adjustments in the terms and conditions a single transaction or a series of this Agreement so that such Acquisition Proposal ceases to constitute a Superior Proposal, if Parent, in its discretion, proposes to make such adjustments (it being agreed that in the event that, after commencement of the Notice Period, there is any material revision to the terms of a Superior Proposal, including, any revision in price, the Notice Period shall be extended, if applicable, to ensure that at least two (2) Business Days remains in the Notice Period subsequent to the time the Company notifies Parent of any such material revision (it being understood that there may be multiple extensions)); and (iv) the Company Board determines in good faith, after consulting with outside legal counsel and the Company Financial Advisor, that such Acquisition Proposal continues to constitute a Superior Proposal after taking into account any adjustments made by Parent during the Notice Period in the terms and conditions of this Agreementrelated transactions.
Appears in 1 contract
Go-Shop; No Solicitation. (a) Notwithstanding anything to the contrary contained set forth in this Agreement, during the period beginning on from the date of this Agreement and continuing until 11:59 p.m. (Eastern time) New York City time on the twenty-first (21st) calendar day date which is 45 Business Days after the date of this Agreement (the "“Go-Shop Period"Period End Date”), the Company and its Subsidiaries and their its and its Subsidiaries’ respective directors, officers, employees, officers and employees and any investment bankers, financial advisors, attorneys, accountants and or other advisors representatives retained by the Company or representatives its Subsidiaries (collectively, "the “Company Representatives"”) shall have the right toto directly or indirectly: (i) initiate, solicit and encourage any offer, proposal or inquiry relating to, or the making any third party indication of interest in, any proposals Competing Proposal from one or offers that constitute Acquisition Proposalsmore Persons, including by way of contacting third parties or public disclosure and by way of providing access to non-public information regarding, and affording access to the business, properties, assets, books, records and personal of the Company and its Subsidiaries, to any Person (each, a “Solicited Person”) pursuant to a an executed confidentiality agreement that constitutes an Acceptable on terms no less favorable to the Company than the Confidentiality Agreement; provided that the Company shall promptly (and in any event within twenty-four (2448 hours) hours thereafter) make available provide to Parent and Merger Sub any material all non-public information concerning the Company or its Subsidiaries that the Company provides to any Person given such access that was not previously delivered or made available to Parent any Solicited Person to the extent such materials and information were not previously furnished or Merger Sub, made available to Parent; and (ii) engage or enter into or otherwise and participate in any discussions or negotiations with regarding, and take any Persons or groups of Persons with respect other action to any Acquisition Proposals or otherwise cooperate with or assist or participate in, encourage or facilitate any such inquiriesinquiries or the making of any offer or proposal that constitutes or would be reasonably likely to lead to, proposals, discussions or negotiations or any effort or attempt to make any Acquisition Proposalsa Competing Proposal. Within one (1) Business Day following the conclusion of the Go-Shop PeriodPeriod End Date, the Company shall notify Parent of the number of Excluded Parties and provide Parent with a written summary in writing of the material terms and conditions of any Acquisition Competing Proposal (including any amendments or modifications thereof) received from any Excluded Party (which material terms as defined below) and conditions shall include the identity of the Person or group of Persons making the Acquisition Proposal)thereof.
(b) Except as expressly permitted by this Section 6.4 and except as may relate to any Excluded Party6.2, at 12:01 a.m. New York City time, on the day immediately following the Go-Shop Period End Date, the Company and its Subsidiaries and their respective officers and directors shall, and the Company shall use its reasonable best efforts to instruct and cause its and its Subsidiaries' other Representatives to, (i) at 12:00 a.m. on immediately cease any activities permitted by Section 6.2(a) and any discussions or negotiations with any Person (other than Parent or any Excluded Party or any of their respective representatives or Affiliates) that are ongoing as of the twentyGo-second Shop Period End Date and that relate to a possible Competing Proposal, and (22ndii) calendar day terminate access to any physical or electronic data rooms relating to a possible Competing Proposal.
(c) Except as expressly contemplated by Section 6.2, from and after the date of this Agreement (the "No-Shop Period Start Date") immediately cease any discussions or negotiations with any Persons that may be ongoing with respect to an Acquisition Proposal, and (ii) from the No-Shop Period Start Date until the earlier of the Effective Time and the termination of this Agreement in accordance with Article 10IX or the Closing, the Company shall not, and the Company shall cause its Subsidiaries and the Company Representatives not to, and shall not authorize or permit its and its Subsidiaries' Representatives to, directly or indirectlyindirectly through any Person, (i) solicit, initiate initiate, facilitate or knowingly take respond to, including by way of furnishing non-public information, any action inquiries regarding or relating to, or the submission of, any Competing Proposal; (ii) engage or participate in any discussions or negotiations, furnish to any Person any information or data relating to the Company or its Subsidiaries or provide access to any of the properties, books, records or employees of the Company or its Subsidiaries, in each such case regarding or in a manner intending to facilitate or encourage the submission of any Acquisition Proposal or the making of any proposal that could constitutes, or may reasonably be expected to lead to, any Competing Proposal; provided that, in the case of the foregoing clauses (i) and (ii), the Company may respond to an unsolicited inquiry or proposal by informing the applicable third party that the Company has entered into this Agreement and is subject to the restrictions set forth in this Agreement; (iii) enter into any letter of intent, memorandum of understanding, term sheet, agreement in principle, acquisition agreement, option agreement, merger agreement or other similar agreement or commitment with respect to any Competing Proposal (an “Alternative Acquisition Agreement”) or agree to, approve, endorse or resolve to recommend or approve any Competing Proposal; (iv) release any third party from, or waive any provisions of, any confidentiality or “standstill” or similar agreement in favor of the Company; or (v) take any action to exempt any third party from the restrictions set forth in Section 203 of the DGCL or otherwise cause such restrictions not to apply to any third party.
(d) Notwithstanding the limitations set forth in Section 6.2(c), if at any time on or after the date of this Agreement and prior to the receipt of the Company Stockholders’ Approval, the Company (or any of the Company Representatives) receives a Competing Proposal (in circumstances not involving a material breach of, or any action that is inconsistent with, this Section 6.2) that constitutes or the Board of Directors of the Company reasonably believes could be expected to result in a Superior Proposal, orthen the Company may (i) furnish non-public information to the third party making such Competing Proposal, subject to Section 6.4(c)if and only if, (1A) conduct prior to so furnishing such information, the Company and such third party execute a confidentiality agreement that contains confidentiality and standstill provisions that are no less favorable to the Company than those contained in the Confidentiality Agreement and that does not contain any provision calling for any exclusive right to negotiate with such Person or engage in any discussions or negotiations withprohibiting the Company from satisfying its obligations under this Agreement, disclose and (B) the Company provides to Parent any non-public information relating to concerning the Company or any of its Subsidiaries to, afford access that is provided or made available to any such third party (or its representatives) which had not previously been provided or made available to Parent within 48 hours after the Company provides or makes such non-public information available to such third party; and (ii) engage in discussions or negotiations with such third party with respect to the businessCompeting Proposal; provided that within 48 hours following the Company taking such actions as described in clauses (i) or (ii) above, propertiesthe Company shall provide written notice to Parent of such Competing Proposal; provided further that (x) such notice to Parent shall identify the Person making, assetsand indicate in reasonable detail the terms and conditions of, books such Competing Proposal, and (y) thereafter, the Company shall provide to Parent, within 48 hours, copies of any proposed Alternative Acquisition Agreements received in connection with such Competing Proposal (including any material amendments or records modifications thereto). Promptly upon Parent’s written request (which may be made via e-mail), the Company shall keep Parent reasonably informed of the status and details of any Competing Proposal.
(e) For the avoidance of doubt, after the Go-Shop Period End Date until the receipt of the Company or any of its Subsidiaries to, or knowingly assist, participate in, facilitate or encourage any effort by, any third party that is seeking to make, or has made, any Acquisition Proposal, (2) (A) amend or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of Stockholders’ Approval at the Company or any of its Subsidiaries or (B) approve any transaction under, or any third party becoming an "interested stockholder" under, Section 78.423 of Nevada Law, or (3) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Acquisition Proposal (each, a "Company Acquisition Agreement"). Subject to Section 6.4(c), neither the Company Board nor any committee thereof shall fail to make, withdraw, amend, modify or materially qualify, in a manner adverse to Parent or Merger SubStockholders’ Meeting, the Company Board Recommendation, or recommend an Acquisition Proposal, or make any public statement inconsistent with the Company Board Recommendation, or resolve or agree may continue to take any of the foregoing actions described in Section 6.2(d) (any of the foregoing, an "Adverse Recommendation Change"). The Company shall, and shall cause its Subsidiaries to cease immediately and cause to be terminated, and shall not authorize or knowingly permit any of its or their Representatives to continue, any and all existing activities, discussions or negotiations, if any, with any third party conducted prior subject to the date hereof limitations and obligations set forth herein) with respect to any Acquisition Proposal.
(c) Notwithstanding Section 6.4(a), at bona fide written proposals or offers regarding any time following Competing Proposal submitted by a Solicited Person on or before the NoGo-Shop Period Start End Date and prior to if the Acceptance Date, Board of Directors of the Company Board, directly or indirectly through any Representative, may, subject to Section 6.4(d) (i) participate in negotiations or discussions with any third party that has made (and not withdrawn) a bona fide, unsolicited Acquisition Proposal in writing that the Company Board believes in good faith, after consultation with outside legal counsel and the Company Financial Advisora financial advisor, constitutes or would reasonably be expected to result in a Superior ProposalProposal (each such Solicited Person, (ii) thereafter furnish to such third party non-public information relating to the Company or any of its Subsidiaries pursuant to an executed confidentiality agreement that constitutes an Acceptable Confidentiality Agreement (a copy of which confidentiality agreement shall be promptly (in all events within twenty-four (24) hours) provided for informational purposes only to Parent“Excluded Party”), (iii) following receipt of and on account of a Superior Proposal, make an Adverse Recommendation Change, and/or (iv) take any action that any court of competent jurisdiction orders the Company to take (which order remains unstayed), but in each case referred to in the foregoing clauses (i) through (iv), only if the Company Board determines in good faith, after consultation with outside legal counsel; provided, that the failure to take such action would reasonably be expected to cause the Company Board an Excluded Party shall cease to be in breach of its fiduciary duties under Nevada Law. Nothing contained herein shall prevent the Company Board from disclosing to the Company's stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act with regard to an Acquisition Proposal, if the Company determines, after consultation with outside legal counsel, that failure to disclose such position would constitute a violation of Applicable Law. For the avoidance of doubt, notwithstanding the occurrence of the No-Shop Period Start Date, the Company may continue to engage in the activities described in Section 6.4(a) with respect to any Excluded Party and the restrictions in Section 6.4(b) shall not apply with respect thereto.
(d) The Company Board shall not take any of the actions referred to in clauses (i) through (iv) of Section 6.4(c) unless the Company if such Person shall have delivered to Parent a prior the Company written notice advising Parent that it intends to take such action. The Company shall notify Parent promptly is no longer contemplating consummating a Competing Proposal.
(but in no event later than twenty-four (24f) hoursExcept as expressly contemplated by Sections 6.2(g)-(h) below, from and after it obtains Knowledge the date of this Agreement until the earlier of the receipt by termination of this Agreement in accordance with Article IX or the Company (or any Closing, neither the Board of its Representatives) of any Acquisition Proposal, any inquiry that would reasonably be expected to lead to an Acquisition Proposal, any request for non-public information relating to the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records Directors of the Company or nor any of its Subsidiaries by any third party. In such notice, the Company committee thereof shall identify the third party making, and details of the material terms and conditions of, any such Acquisition Proposal, indication or request. The Company shall keep Parent fully informed, on a current basis, of the status and material terms of any such Acquisition Proposal, indication or request, including any material amendments or proposed amendments as to price and other material terms thereof. The Company shall provide Parent with at least twenty-four (24i) hours prior notice of any meeting of the Company Board withdraw (or such lesser notice as is provided to the members of the Company Board) at which the Company Board is reasonably expected to consider any Acquisition Proposal. The Company shall promptly provide Parent with change, amend, modify or qualify in a list of any non-public information concerning the Company's business, present or future performance, financial condition or results of operations, provided to any third party, and, to the extent such information has not been previously provided manner adverse to Parent, copies of such information.
Merger Sub or Successor Sub), or publicly propose to withdraw (e) Except as set forth or change, amend, modify or qualify in this Section 6.4(ea manner adverse to Parent, Merger Sub or Successor Sub), the Company Board shall not Recommendation; (ii) approve or recommend, or publicly propose to approve or recommend, a Competing Proposal; or (iii) publicly make any Adverse communication inconsistent with the Company Board Recommendation (any action described in clauses (i), (ii) or (iii) being referred to as a “Change or enter into of Recommendation”).
(or permit any Subsidiary g) Notwithstanding anything in this Agreement to enter into) a the contrary, the Board of Directors of the Company Acquisition Agreement. Notwithstanding the foregoingmay, at any time prior to the Offer Closing, obtaining the Company Board may make an Adverse Recommendation Change or enter into (or permit any Subsidiary to enter into) a Company Acquisition AgreementStockholders’ Approval, if: (i) if the Company promptly notifies Parentreceives a Competing Proposal (in circumstances not involving a material breach of, or any action that is materially inconsistent with, this Section 6.2) that the Board of Directors of the Company concludes in writinggood faith constitutes a Superior Proposal:
(A) effect a Change of Recommendation; and/or
(B) terminate this Agreement; provided, at least two however, that the Board of Directors of the Company may not terminate this Agreement in accordance with the foregoing clause (2B) Business Days (the "Notice Period") before making an Adverse Recommendation Change or except in connection with entering into (or causing a Subsidiary to enter into) a Company Acquisition Agreement, of its intention to take such action definitive agreement with respect to a Superior Proposal, which notice shall state expressly that the Company has received an Acquisition Proposal that the Company Board intends to declare a Superior Proposal and that the Company Board intends to make an Adverse Recommendation Change and/or the Company intends to enter into a Company Acquisition Agreement; (ii) the Company attaches to such notice the most current version of the proposed agreement (which version shall be updated on a prompt basis) and the identity of the third party making such Superior Proposal; (iii) provided, further, that the Board of Directors of the Company shall, and shall cause its Subsidiaries to, and shall use its reasonable best efforts may not effect a Change of Recommendation pursuant to cause its and its Subsidiaries' Representatives to, during the Notice Period, negotiate with Parent in good faith to make such adjustments in the terms and conditions of foregoing clause (A) or terminate this Agreement so that such Acquisition Proposal ceases to constitute a Superior Proposal, if Parent, in its discretion, proposes to make such adjustments (it being agreed that in the event that, after commencement of the Notice Period, there is any material revision pursuant to the terms of a Superior Proposal, including, any revision in price, the Notice Period shall be extended, if applicable, to ensure that at least two foregoing clause (2B) Business Days remains in the Notice Period subsequent to the time the Company notifies Parent of any such material revision (it being understood that there may be multiple extensions)); and (iv) the Company Board determines in good faith, after consulting with outside legal counsel and the Company Financial Advisor, that such Acquisition Proposal continues to constitute a Superior Proposal after taking into account any adjustments made by Parent during the Notice Period in the terms and conditions of this Agreement.unless:
Appears in 1 contract
Samples: Agreement and Plan of Merger (Ceco Environmental Corp)
Go-Shop; No Solicitation. (a) Notwithstanding anything to the contrary contained in this Agreement, during the period beginning on the date of this Agreement and continuing until 11:59 p.m. (Eastern time) on the twenty-first (21st) 35th calendar day after the date of this Agreement (the "“Go-Shop Period"”), the Company Seller and its Subsidiaries and their respective directors, officers, employees, investment bankers, attorneys, accountants and other advisors or representatives (collectively, "Representatives") Representatives shall have the right right, directly or indirectly, to: (i) initiate, solicit solicit, facilitate and encourage (publicly or otherwise) any inquiry or the making of any proposals or offers that could constitute Acquisition Proposals, including by way of providing access to non-public information to any Person and its Representatives, its Affiliates and its prospective equity and debt financing sources pursuant to (but only pursuant to) a confidentiality agreement that constitutes contains terms limiting the use and disclosure of non-public information and imposing standstill obligations that, in each case, are not less favorable in the aggregate to Seller than those contained in the Confidentiality Agreement and that complies with the last sentence of this clause (a) (it being understood that such confidentiality agreement need not prohibit the making or amendment of an Acquisition Proposal privately, and that Seller may waive any such terms in any existing confidentiality agreements) (an “Acceptable Confidentiality Agreement”); provided that the Company (A) Seller shall promptly (and in any event within twenty-four (24) hours thereafter) make available to Parent and Merger Sub Buyer (through an electronic data site or otherwise) concurrently with providing such information to any material such Person(s), any non-public information concerning the Company or its Subsidiaries Business that the Company Seller provides to any Person given such access that was not previously made available to Parent Buyer, (B) shall promptly disclose to Buyer the name of any such Person(s) entering into an Acceptable Confidentiality Agreement, and (C) shall promptly disclose to Buyer the name of any Person who has previously entered into a confidentiality agreement with Seller and who, after the date of this Agreement, requests information or Merger Subotherwise engages with Seller in any manner related to the making of any proposals or offers that could constitute Acquisition Proposals, and (ii) engage or enter into into, continue or otherwise participate in any discussions or negotiations with any Persons Person or groups of Persons Group and their Representatives and their prospective equity and debt financing sources with respect to any Acquisition Proposals or otherwise cooperate with or assist or participate in, or facilitate any such inquiries, proposals, discussions or negotiations or any effort or attempt to make any Acquisition Proposals. Within one (1) Business Day following Seller agrees that it and its Subsidiaries will not enter into any confidentiality agreement or other agreement with any Person subsequent to the conclusion of the Go-Shop Period, the Company shall notify Parent of the number of Excluded Parties and provide Parent date hereof which prohibits Seller from providing any information to Buyer in accordance with a written summary of the material terms and conditions of any Acquisition Proposal received from any Excluded Party (which material terms and conditions shall include the identity of the Person or group of Persons making the Acquisition Proposal)this Section 5.18.
(b) Except as expressly permitted by this Section 6.4 and except as may relate to any Excluded Party, the Company Seller and its Subsidiaries and their respective officers and directors shall, and the Company Seller shall use its reasonable best efforts to instruct and cause its and its Subsidiaries' other Representatives to, (i) at 12:00 a.m. midnight (Eastern time) on the twenty-second (22nd) 36th calendar day after the date of this Agreement (the "No“Go-Shop Period Start End Date"”) immediately cease and terminate any solicitation, encouragement (including by way of providing access to non-public information or the businesses, properties, assets or personnel of Seller or any of its Subsidiaries, in each case, concerning the Business, to any Person and its Representatives, its Affiliates and its prospective equity and debt financing sources), discussions or negotiations (or any other actions permitted by Section 5.18(a)) with any Persons that may be ongoing with respect to an any Acquisition Proposal, and as promptly as practicable thereafter deliver a written notice to each such Person to the effect that Seller is ending all discussions and negotiations with such Person with respect to any Acquisition Proposal, effective immediately, which notice shall also request such Person to return or destroy promptly all confidential information concerning Seller and its Subsidiaries, and Seller shall take all reasonably necessary actions to secure its rights and ensure the performance of any such Person’s obligations under any applicable Acceptable Confidentiality Agreement (including enforcement of any applicable standstill provision), and (ii) from the NoGo-Shop Period Start End Date until the earlier of the Effective Time and the termination of this Agreement in accordance with Article 10ARTICLE X or the consummation of the transactions contemplated hereby, not directly or indirectly (A) initiate, solicit or knowingly encourage (publicly or otherwise) (including by way of providing access to non-public information or the Company shall notproperties, and shall cause its Subsidiaries not to, and shall not authorize assets or permit its personnel of the Business to any Person and its Subsidiaries' Representatives to, directly or indirectly, solicit, initiate or knowingly take and its Affiliates) any action to facilitate or encourage the submission of any Acquisition Proposal inquiries or the making of any proposal or offer that could reasonably be expected to lead to any Acquisition Proposal, or, subject to Section 6.4(c), (1) conduct or engage in any discussions or negotiations with, disclose any non-public information relating to the Company or any of its Subsidiaries to, afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries toconstitutes, or knowingly assist, participate in, facilitate or encourage any effort by, any third party that is seeking to make, or has made, any Acquisition Proposal, (2) (A) amend or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries or (B) approve any transaction under, or any third party becoming an "interested stockholder" under, Section 78.423 of Nevada Law, or (3) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Acquisition Proposal (each, a "Company Acquisition Agreement"). Subject to Section 6.4(c), neither the Company Board nor any committee thereof shall fail to make, withdraw, amend, modify or materially qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, or recommend an Acquisition Proposal, or make any public statement inconsistent with the Company Board Recommendation, or resolve or agree to take any of the foregoing actions (any of the foregoing, an "Adverse Recommendation Change"). The Company shall, and shall cause its Subsidiaries to cease immediately and cause to be terminated, and shall not authorize or knowingly permit any of its or their Representatives to continue, any and all existing activities, discussions or negotiations, if any, with any third party conducted prior to the date hereof with respect to any Acquisition Proposal.
(c) Notwithstanding Section 6.4(a), at any time following the No-Shop Period Start Date and prior to the Acceptance Date, the Company Board, directly or indirectly through any Representative, may, subject to Section 6.4(d) (i) participate in negotiations or discussions with any third party that has made (and not withdrawn) a bona fide, unsolicited Acquisition Proposal in writing that the Company Board believes in good faith, after consultation with outside legal counsel and the Company Financial Advisor, constitutes or would reasonably be expected to result in a Superior Proposal, (ii) thereafter furnish to such third party non-public information relating to the Company or any of its Subsidiaries pursuant to an executed confidentiality agreement that constitutes an Acceptable Confidentiality Agreement (a copy of which confidentiality agreement shall be promptly (in all events within twenty-four (24) hours) provided for informational purposes only to Parent), (iii) following receipt of and on account of a Superior Proposal, make an Adverse Recommendation Change, and/or (iv) take any action that any court of competent jurisdiction orders the Company to take (which order remains unstayed), but in each case referred to in the foregoing clauses (i) through (iv), only if the Company Board determines in good faith, after consultation with outside legal counsel, that the failure to take such action would reasonably be expected to cause the Company Board to be in breach of its fiduciary duties under Nevada Law. Nothing contained herein shall prevent the Company Board from disclosing to the Company's stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act with regard to an Acquisition Proposal, if the Company determines, after consultation with outside legal counsel, that failure to disclose such position would constitute a violation of Applicable Law. For the avoidance of doubt, notwithstanding the occurrence of the No-Shop Period Start Date, the Company may continue to engage in the activities described in Section 6.4(a) with respect to any Excluded Party and the restrictions in Section 6.4(b) shall not apply with respect thereto.
(d) The Company Board shall not take any of the actions referred to in clauses (i) through (iv) of Section 6.4(c) unless the Company shall have delivered to Parent a prior written notice advising Parent that it intends to take such action. The Company shall notify Parent promptly (but in no event later than twenty-four (24) hours) after it obtains Knowledge of the receipt by the Company (or any of its Representatives) of any Acquisition Proposal, any inquiry that would reasonably be expected to lead to an Acquisition Proposal, (B) engage or enter into, continue or otherwise participate in any request for non-public information relating to the Company discussions or any of its Subsidiaries negotiations with respect to, or for access to the business, properties, assets, books or records of the Company or any of its Subsidiaries by any third party. In such notice, the Company shall identify the third party making, and details of the material terms and conditions of, any such Acquisition Proposal, indication or request. The Company shall keep Parent fully informed, on a current basis, of the status and material terms of any such Acquisition Proposal, indication or request, including any material amendments or proposed amendments as to price and other material terms thereof. The Company shall provide Parent with at least twenty-four (24) hours prior notice of any meeting of the Company Board (or such lesser notice as is provided to the members of the Company Board) at which the Company Board is reasonably expected to consider any Acquisition Proposal. The Company shall promptly provide Parent with a list of any non-public information concerning or data concerning, the Company's business, present or future performance, financial condition or results of operations, provided Business to any third partyPerson relating to, andor that would reasonably be expected to lead to, any Acquisition Proposal, (C) grant to the extent any Person any waiver, amendment or release under any standstill or confidentiality agreement or any Anti-Takeover Statute or (D) otherwise knowingly facilitate any such information has not been previously provided inquiries, proposals, discussion or negotiations or any effort or attempt by any Person to Parentmake an Acquisition Proposal. A breach by any Representative of Seller or any of its Subsidiaries, copies acting by or on behalf of such informationSeller, of this Section 5.18 shall constitute a breach by Seller of this Section 5.18.
(ec) Except as set forth in this Section 6.4(e), the Company Board shall not make any Adverse Recommendation Change or enter into (or permit any Subsidiary to enter into) a Company Acquisition Agreement. Notwithstanding the foregoing, at any time prior to the Offer Closing, the Company Board may make an Adverse Recommendation Change or enter into (or permit any Subsidiary to enter into) a Company Acquisition Agreement, if: (i) the Company promptly notifies Parent, in writing, at least two (2) Business Days (the "Notice Period") before making an Adverse Recommendation Change or entering into (or causing a Subsidiary to enter into) a Company Acquisition Agreement, of its intention to take such action with respect to a Superior Proposal, which notice shall state expressly that the Company has received an Acquisition Proposal that the Company Board intends to declare a Superior Proposal and that the Company Board intends to make an Adverse Recommendation Change and/or the Company intends to enter into a Company Acquisition Agreement; (ii) the Company attaches to such notice the most current version of the proposed agreement (which version shall be updated on a prompt basis) and the identity of the third party making such Superior Proposal; (iii) the Company shall, and shall cause its Subsidiaries to, and shall use its reasonable best efforts to cause its and its Subsidiaries' Representatives to, during the Notice Period, negotiate with Parent in good faith to make such adjustments in the terms and conditions of this Agreement so that such Acquisition Proposal ceases to constitute a Superior Proposal, if Parent, in its discretion, proposes to make such adjustments (it being agreed that in the event that, after commencement of the Notice Period, there is any material revision to the terms of a Superior Proposal, including, any revision in price, the Notice Period shall be extended, if applicable, to ensure that at least two (2) Business Days remains in the Notice Period subsequent to the time the Company notifies Parent of any such material revision (it being understood that there may be multiple extensions)); and (iv) the Company Board determines in good faith, after consulting with outside legal counsel and the Company Financial Advisor, that such Acquisition Proposal continues to constitute a Superior Proposal after taking into account any adjustments made by Parent during the Notice Period in the terms and conditions For purposes of this Agreement.:
Appears in 1 contract
Samples: Asset and Membership Interest Purchase Agreement (Bob Evans Farms Inc)
Go-Shop; No Solicitation. (a) Notwithstanding anything to the contrary contained in this Agreement, during the period beginning on the date of this Agreement and continuing until 11:59 p.m. 12:01 a.m. (Eastern New York City time) on the twenty-first (21st) calendar day after the date of this Agreement February 2, 2019 (the "Go“No-Shop Period"Period Start Date”), the Company and its Subsidiaries and their respective directors, officers, employees, investment bankers, attorneys, accountants and other advisors or representatives (collectively, "Representatives") Representatives shall have the right to: to (i) initiate, solicit solicit, facilitate and encourage any inquiry or the making of any proposals proposal or offers offer that constitute constitutes an Acquisition ProposalsProposal, including by way of providing access to non-public information (ii) furnish to any Person pursuant any information which is reasonably requested by such Person in connection with such Person’s potentially making an Acquisition Proposal and (iii) participate or engage in discussions or negotiations with such Person regarding an Acquisition Proposal; provided, however, that (A) prior to a confidentiality agreement that constitutes participating or engaging in such discussions or negotiations or furnishing such information, the Company shall have entered into an Acceptable Confidentiality Agreement; provided that Agreement with such Person and (B) the Company shall promptly (and in any event within twenty-four (24) hours thereafter) make available will provide to Parent and Merger Sub any material non-public information concerning relating to the Company or its any of the Company’s Subsidiaries that the Company provides to any Person given such access that was not previously provided or made available to Parent prior to or Merger Sub, and (ii) engage or enter into or otherwise participate in any discussions or negotiations concurrently with any Persons or groups of Persons with respect the time it is furnished to any Acquisition Proposals or otherwise cooperate with or assist or participate in, or facilitate any such inquiries, proposals, discussions or negotiations or any effort or attempt to make any Acquisition ProposalsPerson. Within one (1) Business Day following On the conclusion of the GoNo-Shop PeriodPeriod Start Date, the Company shall notify Parent in writing of the number of Excluded Parties and provide Parent with a written summary of the material terms and conditions of any Acquisition Proposal received from any Excluded Party (which material terms and conditions shall include the identity of the Person or group of Persons making the Acquisition Proposal).
(b) Except as expressly permitted by this Section 6.4 and except as may relate to any each Excluded Party, Party from whom the Company and its Subsidiaries and their respective officers and directors shall, and the Company shall use its reasonable best efforts to instruct and cause its and its Subsidiaries' other Representatives to, (i) at 12:00 a.m. on the twenty-second (22nd) calendar day received a written Acquisition Proposal after the date execution of this Agreement (and prior to the "No-Shop Period Start Date", which notice shall include copies of drafts of proposed agreements, term sheets or letters of intent related thereto provided to the Company or any of its Representatives.
(b) On the No-Shop Period Start Date, the Company shall, and shall cause its Representatives to, immediately cease and cause to be terminated any discussions or negotiations conducted with any Persons other than Parent (and its Representatives) and any Excluded Party (and its Representatives) with respect to any Acquisition Proposal, including immediately revoking or withdrawing access of any Person other than Parent (and its Representatives) and any Excluded Party (and its Representatives) to any data room (virtual or actual) containing any non-public information with respect to the Company or the Company Subsidiaries and request the prompt return or destruction of all confidential information previously furnished to any such Person and its Representatives other than Parent (and its Representatives) and any Excluded Party (and its Representatives). The Company shall not terminate, waive, amend or modify any provision of any standstill or confidentiality agreement to which the Company is a party with respect to an Acquisition Proposal, except to permit the applicable party to make a confidential Acquisition Proposal to the Company or the Board of Directors.
(c) Except as permitted by this Section 4.3, during the Pre-Closing Period the Acquired Companies shall not, and shall cause their officers and directors not to, and shall use reasonable best efforts to cause their other Representatives not to, directly or indirectly, (i) continue any solicitation, knowing encouragement, discussions or negotiations with any Persons that may be ongoing with respect to an Acquisition Proposal, and ; (ii) from the No-Shop Period Start Date until the earlier of the Effective Time and the termination of this Agreement in accordance with Article 10, the Company shall not, and shall cause its Subsidiaries not to, and shall not authorize or permit its and its Subsidiaries' Representatives to, directly or indirectly, (A) solicit, initiate or knowingly take any action to facilitate or encourage the submission (including by way of furnishing non-public information) any Acquisition Proposal inquiries regarding, or the making of any proposal or offer that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal; (B) engage in, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any other Person any non-public information in connection with, or for the purpose of soliciting or knowingly encouraging or facilitating, an Acquisition Proposal or any proposal or offer that could reasonably be expected to lead to any an Acquisition Proposal; (C) approve, oradopt, subject to Section 6.4(c)endorse or recommend or enter into any letter of intent, (1) conduct or engage acquisition agreement, agreement in any discussions or negotiations with, disclose any non-public information relating to the Company or any of its Subsidiaries to, afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, or knowingly assist, participate in, facilitate or encourage any effort by, any third party that is seeking to make, or has made, any Acquisition Proposal, (2) (A) amend or grant any waiver or release under any standstill principle or similar agreement with respect to any class of equity securities of the Company an Acquisition Proposal or any of its Subsidiaries proposal or (B) approve any transaction under, or any third party becoming an "interested stockholder" under, Section 78.423 of Nevada Law, or (3) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating offer that could reasonably be expected to any Acquisition Proposal (each, a "Company Acquisition Agreement"). Subject lead to Section 6.4(c), neither the Company Board nor any committee thereof shall fail to make, withdraw, amend, modify or materially qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, or recommend an Acquisition Proposal; or (D) exempt any Person (other than Parent and its Subsidiaries) from the restrictions on “business combinations” or any similar provision contained in applicable Takeover Laws or the Company’s organizational and other governing documents; (iii) waive or release any Person from, forebear in the enforcement of, or make amend any public statement inconsistent with the Company Board Recommendation, standstill agreement or any standstill provisions of any other Contract; or (iv) resolve or agree to take any of the foregoing actions (do any of the foregoing, an "Adverse Recommendation Change"). The Company shall, and shall cause its Subsidiaries to cease immediately and cause to be terminated, and shall not authorize or knowingly permit any of its or their Representatives to continue, any and all existing activities, discussions or negotiations, if any, with any third party conducted prior to the date hereof with respect to any Acquisition Proposal.
(cd) Notwithstanding Section 6.4(a), If at any time following on or after the No-Shop Period Start Date and prior to the Acceptance Datereceipt of the Stockholder Approval, the Company Board, directly or indirectly through any Representative, may, subject to Section 6.4(d) (i) participate in negotiations or discussions with any third party that has made (and not withdrawn) a bona fide, unsolicited Acquisition Proposal in writing that the Company Board believes in good faith, after consultation with outside legal counsel and the Company Financial Advisor, constitutes or would reasonably be expected to result in a Superior Proposal, (ii) thereafter furnish to such third party non-public information relating to the Acquired Company or any of its Subsidiaries pursuant to their Representatives receives an executed confidentiality agreement that constitutes an Acceptable Confidentiality Agreement (unsolicited bona fide written Acquisition Proposal from any Person or group of Persons, which Acquisition Proposal did not result from a copy material breach of which confidentiality agreement shall be promptly (in all events within twenty-four (24) hours) provided for informational purposes only to Parent)this Section 4.3, (iii) following receipt of and on account of a Superior Proposal, make an Adverse Recommendation Change, and/or (iv) take any action that any court of competent jurisdiction orders the Company to take (which order remains unstayed), but in each case referred to in the foregoing clauses (i) through the Company and its Representatives may contact such Person or group of Persons solely to clarify the terms and conditions thereof so as to determine whether such Acquisition Proposal is, or is reasonably likely to result in, a Superior Offer; and (iv), only ii) if the Company Board of Directors determines in good faith, after consultation with financial advisors and outside legal counsel, that such Acquisition Proposal constitutes or would reasonably be expected to lead to a Superior Offer and that the failure to take such action described in clauses (A) and (B) below would reasonably be expected to cause the Company Board to be in breach of inconsistent with its fiduciary duties under Nevada Law. Nothing contained herein shall prevent the Company Board from disclosing to the Company's ’s stockholders a position contemplated by Rule 14d-9 under applicable Legal Requirements, then the Company and Rule 14e-2(aits Representatives may (A) promulgated under the Exchange Act with regard furnish, pursuant to an Acceptable Confidentiality Agreement, information (including non-public information) with respect to the Acquired Companies to the Person or group of Persons who has made such Acquisition Proposal; provided, if however, that the Company determinesshall, after consultation prior to or substantially simultaneously with outside legal counselthe provision of any non-public information concerning the Acquired Companies to any such Person, provide to Parent any such non-public information to the extent access to such information was not previously provided to Parent or its Representatives; and (B) engage in or otherwise participate in discussions or negotiations with the Person or group of Persons making such Acquisition Proposal; provided further, however, that failure in the case of clauses (A) and (B), at or prior to disclose the first time that the Company furnishes any information to or participates in any discussions or negotiations with any Person on or after the date of this Agreement, the Company shall provide written notice to Parent of such position would constitute a violation determination in good faith of Applicable Lawthe Board of Directors as provided for above. For the avoidance of doubt, notwithstanding the occurrence of the No-Shop Period Start Date, prior to obtaining the Stockholder Approval, the Company may continue is permitted to engage in the activities described in this Section 6.4(a4.3(d) with respect to any Excluded Party and unless such Excluded Party ceases to be an Excluded Party in accordance with the restrictions in Section 6.4(b) shall not apply with respect theretodefinition thereof.
(de) The From and after the No-Shop Period Start Date, the Company Board shall not take any of the actions referred to in clauses (i) through promptly (ivand in any event within 48 hours) of Section 6.4(c) unless the Company shall have delivered notify Parent of, and provide to Parent a prior copy of, any written notice advising Acquisition Proposal (including any proposed term sheet, letter of intent, acquisition agreement, financing arrangement or other written materials with respect thereto and indicating the identity of such Person or group of Persons), and (ii) keep Parent that it intends reasonably informed of any material developments, discussions or negotiations regarding any Acquisition Proposal on a prompt basis.
(f) Nothing in this Section 4.3 or elsewhere in this Agreement shall prohibit the Company from (i) taking and disclosing to take such action. The Company shall notify Parent promptly (but in no event later than twenty-four (24) hours) after it obtains Knowledge the stockholders of the receipt Company a position contemplated by Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act, including any “stop, look and listen” communication pursuant to Rule 14d-9(f) promulgated under the Exchange Act, or (ii) making any disclosure to the stockholders of the Company that is required by applicable Legal Requirements; provided, however, that the Board of Directors shall not effect a Company Adverse Change Recommendation except in accordance with Section 5.1.
(g) If at any time on or after the No-Shop Period Start Date and prior to the receipt of the Stockholder Approval, any Acquired Company or any of its Representatives receives an unsolicited bona fide request for a waiver or release under any standstill or similar contract, then the Company shall promptly (and in any event within 48 hours) notify Parent of such request. Notwithstanding anything to the contrary in Section 4.3(c) or elsewhere in this Agreement, the Company may waive provisions of a standstill or similar contract applicable to any Person or group (or its Representatives) in response to an unsolicited proposal that did not result from a breach of any Acquisition Proposal, any inquiry this Section 4.3 that would could reasonably be expected to lead to an Acquisition Proposal, any request for non-public information relating a Superior Offer if the Board of Directors determines in good faith after consultation with the Company’s outside counsel that failure to do so would be inconsistent with its fiduciary duties to the Company’s stockholders under applicable Legal Requirements.
(h) The Company agrees that in the event any of the Company’s Subsidiaries or any of its Subsidiaries or for access to the business, properties, assets, books or records Representative of the Company or any of its Subsidiaries takes any action which, if taken by any third party. In such noticethe Company, would constitute a breach of this Section 4.3, the Company shall identify the third party making, and details be deemed to be in breach of the material terms and conditions of, any such Acquisition Proposal, indication this Section 4.3.
(i) No failure or request. The Company shall keep Parent fully informed, on a current basis, of the status and material terms of any such Acquisition Proposal, indication or request, including any material amendments or proposed amendments as to price and other material terms thereof. The Company shall provide Parent with at least twenty-four (24) hours prior notice of any meeting of delay by the Company Board (in providing any notice or such lesser notice as is provided to the members written materials required by this Section 4.3 shall constitute a breach of the Company Board) at which the Company Board is reasonably expected to consider any Acquisition Proposal. The Company shall promptly provide Parent with a list of any non-public information concerning the Company's business, present or future performance, financial condition or results of operations, provided to any third party, and, this Agreement except to the extent such information has not been previously provided to Parent, copies of such information.
(e) Except as set forth in this Section 6.4(e), the Company Board shall not make any Adverse Recommendation Change or enter into (or permit any Subsidiary to enter into) a Company Acquisition Agreement. Notwithstanding the foregoing, at any time prior to the Offer Closing, the Company Board may make an Adverse Recommendation Change or enter into (or permit any Subsidiary to enter into) a Company Acquisition Agreement, if: (i) the Company promptly notifies Parent, in writing, at least two (2) Business Days (the "Notice Period") before making an Adverse Recommendation Change or entering into (or causing a Subsidiary to enter into) a Company Acquisition Agreement, of its intention to take such action with respect to a Superior Proposal, which notice shall state expressly that the Company has received an Acquisition Proposal that the Company Board intends to declare a Superior Proposal and that the Company Board intends to make an Adverse Recommendation Change and/or the Company intends to enter into a Company Acquisition Agreement; (ii) the Company attaches to such notice the most current version of the proposed agreement (which version shall be updated on a prompt basis) and the identity of the third party making such Superior Proposal; (iii) the Company shall, and shall cause its Subsidiaries to, and shall use its reasonable best efforts to cause its and its Subsidiaries' Representatives to, during the Notice Period, negotiate with Parent in good faith to make such adjustments in the terms and conditions of this Agreement so that such Acquisition Proposal ceases to constitute a Superior Proposal, if Parent, in its discretion, proposes to make such adjustments (it being agreed that in failure or delay materially prejudices the event that, after commencement rights of the Notice Period, there is any material revision to the terms of a Superior Proposal, including, any revision in price, the Notice Period shall be extended, if applicable, to ensure that at least two (2) Business Days remains in the Notice Period subsequent to the time the Company notifies Parent of any such material revision (it being understood that there may be multiple extensions)); and (iv) the Company Board determines in good faith, after consulting with outside legal counsel and the Company Financial Advisor, that such Acquisition Proposal continues to constitute a Superior Proposal after taking into account any adjustments made by Parent during the Notice Period in the terms and conditions of this Agreementunder Section 5.1.
Appears in 1 contract
Samples: Merger Agreement (Gaming Partners International CORP)
Go-Shop; No Solicitation. (a) Notwithstanding anything to the contrary contained in this Agreement, during During the period beginning commencing on the date of this Agreement and continuing until 11:59 ending at 4:59 p.m. (Eastern New York time) on the twenty-first (21st) calendar day after the date of this Agreement January 29, 2014 (the "“Go-Shop Period"”), the Company and its Subsidiaries and their Subsidiaries’ respective directors, officers, employees, consultants, advisors (including its investment bankers, attorneys, accountants accountants, consultants and other advisors or representatives financial advisors) (collectively, "“Representatives"”) retained in connection with the Transactions shall have the right be permitted to: , directly or indirectly (ix) continue to solicit, initiate, solicit encourage and encourage facilitate any inquiry inquiry, discussion, offer or request from a Qualified Pre-Existing Bidder that constitutes, or could reasonably be expected to lead to, a Takeover Proposal, (y) grant a waiver or terminate any “standstill” or similar obligation of a Qualified Pre-Existing Bidder with respect to the making Company or any of any proposals or offers that constitute Acquisition Proposalsits Subsidiaries to allow such Person to submit a Takeover Proposal in compliance with this Section 6.3 and (z) continue to engage in discussions and negotiations with, including by way of providing access to and furnish non-public information relating to the Company and its Subsidiaries and afford access to the books and records of the Company and its Subsidiaries to any Person pursuant Qualified Pre-Existing Bidder in connection with a Takeover Proposal or any inquiry, discussion, offer or request that could reasonably be expected to lead to a confidentiality agreement that constitutes an Acceptable Confidentiality AgreementTakeover Proposal; provided provided, that the Company has previously provided or made available (or concurrently provides or makes available) such information to Parent. The Company (i) shall promptly advise Parent orally and in writing of the receipt by the Company or any of its Subsidiaries, or any of its or their respective Representatives, of any bona fide inquiries, proposals or offers, requests for information or requests for discussions or negotiations from any Qualified Pre-Existing Bidder regarding any Takeover Proposal, specifying the material terms and conditions thereof and the identity of the Qualified Pre-Existing Bidder making the Takeover Proposal or request, (ii) deliver to Parent unredacted copies of all proposed transaction documents received by the Company or any of its Representatives from any such Qualified Pre-Existing Bidder or its Representatives relating to any such Takeover Proposal, and (iii) advise Parent orally and in writing of any material modifications to the financial or other material terms and conditions of such Takeover Proposal and any material developments, discussions or negotiations regarding any Takeover Proposal, in each case on a current basis (and in any event within twenty-four (24) hours thereafterhours) make available to Parent and Merger Sub any material non-public information concerning the Company or its Subsidiaries that the Company provides to any Person given such access that was not previously made available to Parent or Merger Sub, and (ii) engage or enter into or otherwise participate in any discussions or negotiations with any Persons or groups of Persons with respect to any Acquisition Proposals or otherwise cooperate with or assist or participate in, or facilitate any such inquiries, proposals, discussions or negotiations or any effort or attempt to make any Acquisition Proposals. Within one (1) Business Day following the conclusion of the Go-Shop Period, the Company shall notify Parent of the number of Excluded Parties and provide Parent with a written summary of the material terms and conditions of any Acquisition Proposal received from any Excluded Party (which material terms and conditions shall include the identity of the Person or group of Persons making the Acquisition Proposal).
(b) Except as expressly permitted by this Section 6.4 and except as may relate to any Excluded Party, the Company and its Subsidiaries and their respective officers and directors shall, and the Company shall use its reasonable best efforts to instruct and cause its and its Subsidiaries' other Representatives to, (i) at 12:00 a.m. on the twenty-second (22nd) calendar day after the date of this Agreement (the "No-Shop Period Start Date") immediately cease any discussions or negotiations with any Persons that may be ongoing with respect to an Acquisition Proposal, and (ii) from the No-Shop Period Start Date until the earlier of the Effective Time and the termination of this Agreement in accordance with Article 10, the Company’s receipt thereof. The Company shall not, and shall cause its Subsidiaries not to, enter into any confidentiality agreement with any Qualified Pre-Existing Bidder which prohibits the Company from providing such information to Parent and shall not authorize otherwise keep Parent informed on a current basis (and in any event within twenty-four (24) hours) of the status of any discussions or permit negotiations and of any modifications to such inquiries, proposals or offers, including any change in the Company’s intentions as previously stated.
(b) From and after the expiration of the Go-Shop Period, (i) the Company shall, and shall cause each of its and its Subsidiaries' ’ respective Representatives to, directly immediately cease and cause to be terminated any existing solicitation of, or indirectlydiscussions or negotiations with, solicit, initiate any Qualified Pre-Existing Bidder (other than Excluded Parties for so long as such persons or knowingly take groups are Excluded Parties) relating to any action to facilitate or encourage the submission of any Acquisition Takeover Proposal or the making of any proposal inquiry, discussion, offer or request that could reasonably be expected to lead to a Takeover Proposal; and (ii) the Company shall request that each such Qualified Pre-Existing Bidder (other than any Acquisition ProposalExcluded Party for so long as such person or group is an Excluded Party) promptly return to the Company or destroy any non-public information previously furnished or made available to such Person or any of its Representatives by or on behalf of the Company or its Representatives in accordance with the terms of the confidentiality or similar agreement in place with such Person.
(c) As promptly as reasonably practicable, or, subject to Section 6.4(c), and in any event within one (1) conduct Business Day following the expiration of the Go-Shop Period: (i) the Company shall deliver to Parent a written notice setting forth: (A) the identity of each Excluded Party and each other Person that, to the Knowledge of the Company, has (or engage is expected to have) a material equity interest in the Takeover Proposal proposed by such Excluded Party; and (B) the material terms and conditions of the pending Takeover Proposal made by such Excluded Party (it being understood that price per share shall be considered a material term of any such pending Takeover Proposal); and (ii) the Company shall deliver to Parent unredacted copies of all proposed transaction documents received by the Company or any of its Representatives from any such Excluded Party or its Representatives.
(d) Except with respect to Qualified Pre-Existing Bidders during the Go-Shop Period as provided in Section 6.3(a), from the date hereof until the earlier of the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 8.1, the Company shall not, shall cause its Subsidiaries not to, and shall not permit its or its Subsidiaries’ Representatives to, directly or indirectly, (i) solicit, initiate, knowingly facilitate (including by way of furnishing information) or knowingly encourage any inquiries regarding, or the making of any proposal or offer from, any Person that constitutes, or would reasonably be expected to lead to, a Takeover Proposal, (ii) enter into or participate in any discussions or negotiations withwith (other than to state the Company is not permitted to have discussions), disclose or furnish any non-public information relating to the Company or any of its Subsidiaries to, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, or knowingly assistany Person that, participate into the Knowledge of the Company, facilitate or encourage any effort by, any third party that is seeking to make, or has made, any Acquisition a Takeover Proposal, (2iii) execute or enter into any Company Acquisition Agreement (Aother than an Acceptable Confidentiality Agreement) amend or resolve, agree or propose to do any of the foregoing or (iv) terminate, amend, release, modify or fail to enforce any provision (including any standstill or other provision) of, or grant any permission, waiver or release request under any confidentiality, standstill or similar agreement (including an Acceptable Confidentiality Agreement). Except with respect to any class of equity securities of Qualified Pre-Existing Bidders during the Company or any of its Subsidiaries or (B) approve any transaction under, or any third party becoming an "interested stockholder" under, Go-Shop Period as provided in Section 78.423 of Nevada Law, or (3) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Acquisition Proposal (each, a "Company Acquisition Agreement"). Subject to Section 6.4(c6.3(a), neither the Company Board nor any committee thereof shall fail to make, withdraw, amend, modify or materially qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, or recommend an Acquisition Proposal, or make any public statement inconsistent with the Company Board Recommendation, or resolve or agree to take any of the foregoing actions (any of the foregoing, an "Adverse Recommendation Change"). The Company shall, and shall cause its Subsidiaries to and its and their Representatives to, immediately cease immediately and cause to be terminated, and shall not authorize or knowingly permit terminated any of its or their Representatives to continue, any and all existing activities, discussions or negotiations, if any, negotiations with any third party conducted prior to the date hereof parties that may be ongoing with respect to any Acquisition ProposalTakeover Proposal as of the date hereof, shall take reasonable steps to inform its and its Subsidiaries’ Representatives of the obligations undertaken in this Section 6.3 and shall promptly request that all confidential information previously furnished to any such third parties and their respective Representatives be returned or destroyed promptly.
(ce) Notwithstanding Section 6.4(a), at At any time following after the Noexpiration of the Go-Shop Period Start Date and prior to the Acceptance DateTime, following the receipt by the Company Boardof an unsolicited bona fide written Takeover Proposal, directly or indirectly through any Representative, may, subject to Section 6.4(d) if the Company Board determines in good faith (i) participate in negotiations or discussions with any third party that has made (and not withdrawn) a such unsolicited bona fide, unsolicited Acquisition fide written Takeover Proposal in writing that the Company Board believes in good faith, after consultation with outside legal counsel and the Company Financial Advisor, constitutes or would reasonably be expected to result in lead to a Superior Proposal, Proposal and (ii) thereafter furnish to such third party non-public information relating to the Company or any of its Subsidiaries pursuant to an executed confidentiality agreement that constitutes an Acceptable Confidentiality Agreement (a copy of which confidentiality agreement shall be promptly (in all events within twenty-four (24) hours) provided for informational purposes only to Parent), (iii) following receipt of and on account of a Superior Proposal, make an Adverse Recommendation Change, and/or (iv) take any action that any court of competent jurisdiction orders the Company to take (which order remains unstayed), but in each case referred to in the foregoing clauses (i) through (iv), only if the Company Board determines in good faith, after consultation with outside legal counsel, that the failure to take the actions set forth in clauses (x) and (y) below with respect to such action unsolicited bona fide written Takeover Proposal would reasonably be expected to cause inconsistent with its fiduciary duties, then the Company Board may, in response to be in breach such Takeover Proposal, (x) furnish access and non-public information with respect to the Company and any of its fiduciary duties under Nevada Law. Nothing contained herein shall prevent the Company Board from disclosing Subsidiaries to the Company's stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act with regard Person who has made such unsolicited bona fide written Takeover Proposal pursuant to an Acquisition Acceptable Confidentiality Agreement, so long as any non-public information provided under this clause (x) has previously been provided to Parent or is provided to Parent substantially concurrently with the time it is provided to such Person if it has not been provided to Parent previously, and (y) participate in discussions and negotiations regarding such unsolicited bona fide written Takeover Proposal, if .
(f) At any time after the Company determines, after consultation with outside legal counsel, that failure to disclose such position would constitute a violation of Applicable Law. For the avoidance of doubt, notwithstanding the occurrence of the No-Shop Period Start Datedate hereof, the Company may continue to engage in the activities described in Section 6.4(a) with respect to any Excluded Party and the restrictions in Section 6.4(b) shall not apply with respect thereto.
(d) The Company Board shall not take any of the actions referred to in clauses shall: (i) through (iv) advise Parent orally and in writing of Section 6.4(c) unless the receipt by the Company shall have delivered or any of its Subsidiaries, or any of its or their respective Representatives, of any bona fide inquiries, proposals or offers, requests for information or requests for discussions or negotiations regarding any Takeover Proposal, specifying the material terms and conditions thereof and the identity of the party making the Takeover Proposal or request, (ii) deliver to Parent unredacted copies of all proposed transaction documents received by the Company or any of its Representatives from any such party or its Representatives relating to any such Takeover Proposal, and (iii) advise Parent orally and in writing of any material modifications to the financial or other material terms and conditions of such Takeover Proposal (it being understood that price per share shall be considered a prior written notice advising Parent that it intends to take material term of any such action. The Company shall notify Parent promptly Takeover Proposal) and any material developments, discussions or negotiations regarding any Takeover Proposal, in each case on a current basis (but and in no any event later than within twenty-four (24) hours) after it obtains Knowledge of the Company’s receipt by the Company (or any of its Representatives) of any Acquisition Proposal, any inquiry that would reasonably be expected to lead to an Acquisition Proposal, any request for non-public information relating to the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of the Company or any of its Subsidiaries by any third party. In such notice, the Company shall identify the third party making, and details of the material terms and conditions of, any such Acquisition Proposal, indication or request. The Company shall keep Parent fully informed, on a current basis, of the status and material terms of any such Acquisition Proposal, indication or request, including any material amendments or proposed amendments as to price and other material terms thereof. The Company shall provide not, and shall cause its Subsidiaries not to, enter into any confidentiality agreement with any person subsequent to the date of this Agreement which prohibits the Company from providing such information to Parent with at least and shall otherwise keep Parent informed on a current basis (and in any event within twenty-four (24) hours prior notice hours) of the status of any meeting of the Company Board (discussions or such lesser notice as is provided to the members of the Company Board) at which the Company Board is reasonably expected to consider any Acquisition Proposal. The Company shall promptly provide Parent with a list negotiations and of any non-public information concerning modifications to such inquiries, proposals or offers, including any change in the Company's business, present or future performance, financial condition or results of operations, provided to any third party, and, to the extent such information has not been ’s intentions as previously provided to Parent, copies of such informationstated.
(eg) Except as set forth in this expressly permitted by Section 6.4(e), the Company Board shall not make any Adverse Recommendation Change or enter into (or permit any Subsidiary to enter into) a Company Acquisition Agreement. Notwithstanding the foregoing, at any time prior to the Offer Closing, the Company Board may make an Adverse Recommendation Change or enter into (or permit any Subsidiary to enter into) a Company Acquisition Agreement, if: (i) the Company promptly notifies Parent, in writing, at least two (2) Business Days (the "Notice Period") before making an Adverse Recommendation Change or entering into (or causing a Subsidiary to enter into) a Company Acquisition Agreement, of its intention to take such action with respect to a Superior Proposal, which notice shall state expressly that the Company has received an Acquisition Proposal that the Company Board intends to declare a Superior Proposal and that the Company Board intends to make an Adverse Recommendation Change and/or the Company intends to enter into a Company Acquisition Agreement; (ii) the Company attaches to such notice the most current version of the proposed agreement (which version shall be updated on a prompt basis) and the identity of the third party making such Superior Proposal; (iii) the Company shall, and shall cause its Subsidiaries to, and shall use its reasonable best efforts to cause its and its Subsidiaries' Representatives to, during the Notice Period, negotiate with Parent in good faith to make such adjustments in the terms and conditions of this Agreement so that such Acquisition Proposal ceases to constitute a Superior Proposal, if Parent, in its discretion, proposes to make such adjustments (it being agreed that in the event that, after commencement of the Notice Period, there is any material revision to the terms of a Superior Proposal, including, any revision in price, the Notice Period shall be extended, if applicable, to ensure that at least two (2) Business Days remains in the Notice Period subsequent to the time the Company notifies Parent of any such material revision (it being understood that there may be multiple extensions)); and (iv) the Company Board determines in good faith, after consulting with outside legal counsel and the Company Financial Advisor, that such Acquisition Proposal continues to constitute a Superior Proposal after taking into account any adjustments made by Parent during the Notice Period in the terms and conditions of this Agreement.6.3
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