No Solicitation by Parent. (a) Immediately following the execution of this Agreement, Parent will terminate any and all existing activities, arrangements, discussions and negotiations with third parties (other than the Company and those entities identified in Section 5.01(b)(iv)(1) of the Parent Disclosure Letter) with respect to any possible Parent Acquisition Transaction (as defined below). Except as expressly provided in Sections 5.03(b), 5.03(c) and 7.01, prior to the Effective Time, Parent shall not, and shall not authorize or permit any of its Subsidiaries or any of its or its Subsidiaries' directors, officers, employees, agents or representatives to, directly or indirectly, solicit, initiate, facilitate or encourage (including by way of furnishing or disclosing information) (i) any merger, consolidation, other business combination involving Parent or its Subsidiaries (other than mergers, consolidations or transfers solely between and among Parent and any wholly-owned Subsidiary), (ii) any acquisition, sale, lease, exchange, mortgage, pledge, transfer or other disposition of, or tender offer for, all or any substantial portion of the assets or capital stock of Parent or any of its material Subsidiaries taken as a whole, or (iii) inquiries or proposals concerning or which may reasonably be expected to lead to, any of the foregoing (a "Parent Acquisition Transaction") or negotiate, explore or otherwise enter into discussions in any way with any third party (other than the Company or its affiliates) with respect to any Parent Acquisition Transaction or enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transactions contemplated by the Transaction Documents. Parent shall promptly advise the Company of the terms, conditions and identity of the third party making any inquiries or proposals relating to any Parent Acquisition Transaction. (b) Notwithstanding the foregoing in the event that Parent receives an unsolicited bona fide written proposal for a Parent Acquisition Transaction from a third party, Parent may furnish non-public information to, and negotiate with, such third party; provided that Parent (i) provides prior written notice to the Company; (ii) such third party enters into a confidentiality agreement having terms no more favorable to such third party than the terms of the Confidentiality Agreement are to the Company; (iii) (A) Parent's Board of Directors shall have concluded in good faith based on the advice of its investment banker, that such Parent Acquisition Transaction may reasonably be expected, if consummated, to result in a transaction more favorable to Parent and its stockholders than the Merger and such third party is financially capable of consummating such Parent Acquisition Transaction, and (B) Parent's Board of Directors shall have concluded in good faith based on the advice of outside counsel to Parent, that any failure to provide such non-public information to, or negotiate with, such party would be inconsistent with Parent's Board of Directors' fiduciary duties to stockholders of Parent. (c) Nothing in this Section 5.03 shall prohibit the Board of Directors of Parent from withdrawing or modifying its recommendation referred to in Section 2.09 if there exists a Parent Acquisition Transaction and the Board of Directors of the Company, after one (1) business day prior written notice to the Company and consultation with and based upon the advice of independent legal counsel, determines in good faith that any failure to do so would be inconsistent with the fiduciary duties of the Board of Directors of Parent to stockholders of the Company.
Appears in 2 contracts
Samples: Merger Agreement (Paragon Health Network Inc), Merger Agreement (Mariner Health Group Inc)
No Solicitation by Parent. (a) Immediately following During the execution of this AgreementPre-Closing Period, except as expressly permitted by Section 5.4(b) or Section 5.4(d), (i) Parent will terminate any shall cease, and shall cause its officers and directors and shall direct the other Parent Representatives to cease, and cause to be terminated all existing activitiesdiscussions, arrangements, discussions negotiations and negotiations communications with third parties any Persons or entities with respect to any Parent Acquisition Proposal (other than the Company and those entities identified in Section 5.01(b)(iv)(1transactions contemplated hereby); (ii) of the Parent Disclosure Letter) with respect to any possible Parent Acquisition Transaction (as defined below). Except as expressly provided in Sections 5.03(b), 5.03(c) and 7.01, prior to the Effective Time, Parent shall not, and shall not authorize or permit any of its Subsidiaries or any of its or its Subsidiaries' officers, directors, officersinvestment bankers, employeesattorneys, accountants and other advisors, agents or and representatives (collectively, the “Parent Representatives”) to, directly or indirectlyindirectly through another Person, solicit, (A) initiate, facilitate seek, solicit or knowingly encourage (including by way of furnishing or disclosing information)
(i) any merger, consolidation, other business combination involving Parent or its Subsidiaries (other than mergers, consolidations or transfers solely between and among Parent and any whollynon-owned Subsidiary), (ii) any acquisition, sale, lease, exchange, mortgage, pledge, transfer or other disposition of, or tender offer for, all or any substantial portion of the assets or capital stock of public information relating to Parent or any of its material Subsidiaries taken as a wholesubsidiaries), or (iii) inquiries knowingly induce or proposals concerning or take any other action which may would reasonably be expected to lead to the making, submission or announcement of any Parent Acquisition Proposal, (B) engage in negotiations or discussions with, or provide any non-public information or non-public data to, any of the foregoing (a "Parent Acquisition Transaction") or negotiate, explore or otherwise enter into discussions in any way with any third party Person (other than the Company or any of its affiliatesAffiliates or any Company Representatives) with respect relating to any Parent Acquisition Transaction Proposal or grant any waiver or release under any standstill or other agreement (except that if the Parent Board (or any committee thereof) determines in good faith that the failure to grant any waiver or release would reasonably be expected to be inconsistent with the Parent directors’ fiduciary duties under applicable law, Parent may waive, any such standstill provision in order to permit a third party to make a Parent Acquisition Proposal), (C) enter into any agreement, arrangement including any letter agreement, memorandum of understanding, agreement in principal, merger agreement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transactions contemplated by the Transaction Documents. Parent shall promptly advise the Company of the terms, conditions and identity of the third party making any inquiries or proposals similar agreement relating to any Parent Acquisition TransactionProposal, or (D) otherwise resolve to do any of the foregoing; (iii) Parent shall not provide and shall, within twenty four (24) hours of the date hereof, terminate access of any third party to any data room (virtual or actual) containing any of Parent’s confidential information; and (iv) within two (2) Business Days after the date hereof, Parent shall request the return or destruction of all confidential, non-public information provided to third parties that have entered into confidentiality agreements relating to a possible Parent Acquisition Proposal with Parent or any of its subsidiaries. Notwithstanding the foregoing, nothing contained in this Section 5.4 or in Section 6.4 or any other provision of this Agreement shall prohibit Parent or the Parent Board (or any committee thereof) from (A) taking and disclosing to Parent Shareholders the fact that any Parent Acquisition Proposal has been made, its position with respect to any tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act or making any statement contemplated by Item 1012(a) of Regulation MA or any “stop, look and listen” statement or (B) taking any of the actions set forth in Section 5.4(a) with respect to a Parent Licensing Deal.
(b) Notwithstanding the foregoing foregoing, at any time prior to obtaining the Parent Shareholder Approval, if Xxxxxx receives a written Parent Acquisition Proposal from a third party and the receipt of such Parent Acquisition Proposal was not initiated, sought, solicited, knowingly encouraged or knowingly induced in violation of Section 5.4(a), then Parent may (i) contact the event Person who has made such Parent Acquisition Proposal in order to clarify the terms of such Parent Acquisition Proposal so that the Parent receives Board may inform itself about such Parent Acquisition Proposal, (ii) furnish information concerning its business, properties or assets to any Person pursuant to an unsolicited bona fide written proposal for Acceptable Confidentiality Agreement and (iii) negotiate and participate in discussions and negotiations with such Person concerning a Parent Acquisition Transaction from a third partyProposal, Parent may furnish non-public information to, and negotiate with, such third party; provided that Parent (i) provides prior written notice to in the Company; case of clauses (ii) such third party enters into a confidentiality agreement having terms no more favorable to such third party than the terms of the Confidentiality Agreement are to the Company; and (iii) (A) Parent's ), only if the Parent Board of Directors shall have concluded first determines in good faith based on the advice of faith, after consultation with its investment bankerfinancial advisor and outside legal counsel, that such Parent Acquisition Transaction may Proposal constitutes or is reasonably be expectedlikely to constitute or to lead to a Parent Superior Proposal. Parent (A) shall promptly (and in any case within twenty-four (24) hours) provide the Company notice (1) of the receipt of any Parent Acquisition Proposal, if consummatedwhich notice shall include a complete, to result in a transaction more favorable to Parent and its stockholders than the Merger and such third party is financially capable unredacted copy of consummating such Parent Acquisition TransactionProposal, and (B2) Parent's Board of Directors shall have concluded in good faith based on the advice of outside counsel to Parentany inquiries, that proposals or offers received by, any failure to provide such requests for non-public information tofrom, or negotiate any discussions or negotiations sought to be initiated or continued with, Parent or any Parent Representatives concerning a Parent Acquisition Proposal that constitutes or is reasonably likely to constitute or lead to a Parent Acquisition Proposal, and disclose the identity of the other party (or parties) and the material terms of such inquiry, offer, proposal or request and, in the case of written materials, provide copies of such materials, (B) shall promptly (and in any case within twenty-four (24) hours) make available to the Company copies of all written materials provided by Parent or Parent’s Representatives to such party would be inconsistent with Parent's Board but not previously made available to the Company and (C) shall keep the Company informed on a reasonably prompt basis (and, in any case, within twenty-four (24) hours of Directors' fiduciary duties to stockholders any significant development) of Parentthe status and material details (including amendments and proposed amendments) of any such Parent Acquisition Proposal or other inquiry, offer, proposal or request.
(c) Nothing Except as permitted by Section 5.4(d) or Section 5.4(e), neither the Parent Board nor any committee thereof shall (i) withdraw, qualify or modify, or publicly propose to withdraw, qualify or modify, the Parent Recommendation, in this each case in a manner adverse to the Company, (ii) approve or recommend any Parent Acquisition Proposal, (iii) enter into any agreement with respect to any Parent Acquisition Proposal (other than an Acceptable Confidentiality Agreement pursuant to Section 5.03 shall prohibit 5.4(b)) or (iv) if any Parent Acquisition Proposal is publicly announced, fail to reaffirm or re-publish the Board Parent Recommendation within ten (10) Business Days of Directors being requested by the Company to do so (provided that (A) the Company may make such request on no more than two (2) occasions in response to the same facts, events, circumstances or set of Parent from withdrawing or modifying its recommendation referred to circumstances arising in Section 2.09 if there exists connection with a Parent Acquisition Transaction Proposal, (B) the Company may not make any such request at any time following Parent’s delivery of a notice pursuant to clause (B) of Section 5.4(d) or clause (ii) of Section 5.4(e) and (C) if the Company has made any such request and prior to the expiration of ten (10) Business Days Parent delivers a notice pursuant to clause (B) of Section 5.4(d) or clause (ii) of Section 5.4(e), the ten (10) Business Day period set forth in this clause (iv) shall be tolled on a daily basis during the period beginning on the date of delivery of such notice and ending on the date on which the Parent Board shall have determined not to effect a Parent Adverse Recommendation Change pursuant to Section 5.4(d) or 5.4(e), as applicable) (any action described in this sentence being referred to as a “Parent Adverse Recommendation Change”).
(d) If, at any time prior to the receipt of Directors of Parent Shareholder Approval, the CompanyParent Board receives a Parent Acquisition Proposal that the Parent Board determines in good faith, after one (1) business day prior written notice to the Company and consultation with its financial advisor and based upon the advice of independent outside legal counsel, constitutes a Parent Superior Proposal, the Parent Board may (i) effect a Parent Adverse Recommendation Change or (ii) authorize Parent to terminate this Agreement pursuant to Section 8.1(b)(iii) in order to enter into a definitive agreement providing for a Parent Superior Proposal, if the Parent Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that the failure to take such action would reasonably be expected to be inconsistent with Parent’s directors’ fiduciary duties under applicable Law; (B) Parent has notified the Company in writing that it intends to effect a Parent Adverse Recommendation Change or terminate this Agreement; (C) if applicable, Parent has provided the Company a copy of the proposed definitive agreements between Parent and the Person making such Parent Superior Proposal; (D) for a period of four (4) days following the notice delivered pursuant to clause (B) of this Section 5.4(d), Parent shall have discussed and negotiated in good faith and made Parent Representatives available to discuss and negotiate in good faith (in each case to the extent the Company desires to negotiate) with Company Representatives any proposed modifications to the terms and conditions of this Agreement so that the failure to take such action would no longer be reasonably be expected to inconsistent with Parent’s directors’ fiduciary duties under applicable Law (it being understood and agreed that any amendment to any material term or condition of any Parent Superior Proposal shall require a new notice and a new two (2) day negotiation period; and (e) no earlier than the end of such negotiation period, the Parent Board shall have determined in good faith, after consultation with its financial advisor and outside legal counsel, after considering the terms of any proposed amendment or modification to this Agreement (and all financial, legal and regulatory terms and conditions of such Parent Acquisition Proposal and the expected timing of consummation and the relative risk of consummation of the applicable proposal), that (x) the Parent Acquisition Proposal that is the subject of the notice described in clause (B) above still constitutes a Parent Superior Proposal and (y) the failure to do so take such action would still reasonably be expected to be inconsistent with Parent’s directors’ fiduciary duties under applicable Law.
(e) Other than in connection with a Parent Superior Proposal (which shall be subject to Section 5.4(d) and shall not be subject to this Section 5.4(e)), prior to obtaining the Parent Shareholder Approval, the Parent Board may take any action prohibited by clause (i) of Section 5.4(c), but only in response to a Parent Intervening Event and only if (i) the Parent Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that the failure to take such action would reasonably be expected to be inconsistent with the Parent directors’ fiduciary duties under applicable Law; (ii) Parent has notified the Company in writing that it intends to effect a Parent Adverse Recommendation Change due to the occurrence of a Parent Intervening Event (which notice shall specify the Parent Intervening Event in reasonable detail); (iii) for a period of four (4) days following the notice delivered pursuant to clause (ii) of this Section 5.4(e), Parent shall have discussed and negotiated in good faith, and shall have made Parent Representatives available to discuss and negotiate in good faith (in each case to the extent the Company desires to negotiate), with Company Representatives any proposed modifications to the terms and conditions of this Agreement so that the failure to take such action would no longer reasonably be expected to be inconsistent with the Parent directors’ fiduciary duties under applicable Law (it being understood and agreed that any material change to the facts and circumstances relating to the Parent Intervening Event shall require a new notice and a new two (2) day negotiation period; and (iv) no earlier than the end of the negotiation period, the Parent Board shall have determined in good faith, after consultation with its financial advisor and outside legal counsel, after considering the terms of Directors of any proposed amendment or modification to this Agreement, that the failure to take such action would still reasonably be expected to be inconsistent with the Parent to stockholders of the Companydirectors’ fiduciary duties under applicable Law.
Appears in 1 contract
Samples: Merger Agreement (Peak Bio, Inc.)
No Solicitation by Parent. (a) Immediately following From and after the execution date of this Agreement, Parent will terminate shall not, nor shall it authorize or knowingly permit any and all existing activitiesofficer, arrangementsdirector or employee of or any investment banker, discussions and negotiations with third parties attorney, accountant or other advisor or representative (other than collectively, the Company and those entities identified in Section 5.01(b)(iv)(1"Parent Representatives") of, Parent to, (i) solicit, initiate or knowingly encourage the submission of the any Parent Disclosure LetterTakeover Proposal, (ii) enter into any agreement with respect to any possible Parent Acquisition Transaction Takeover Proposal or (as defined below)iii) other than informing persons of the existence of this Section 4.02, provide any non-public information regarding Parent to any third party or engage in any negotiations or substantive discussions in connection with any Parent Takeover Proposal. Except as expressly provided For purposes of this Agreement, "Parent Takeover Proposal" means (i) any inquiry, proposal or offer for a merger, consolidation, business combination or other similar transaction involving Parent, (ii) any inquiry, proposal or offer to acquire in Sections 5.03(b), 5.03(c) and 7.01, prior to the Effective Time, Parent shall not, and shall not authorize or permit any of its Subsidiaries or any of its or its Subsidiaries' directors, officers, employees, agents or representatives tomanner, directly or indirectly, solicit, initiate, facilitate or encourage (including by way of furnishing or disclosing information)
(i) any merger, consolidation, other business combination involving Parent or its Subsidiaries (other more than mergers, consolidations or transfers solely between and among Parent and any wholly-owned Subsidiary), (ii) any acquisition, sale, lease, exchange, mortgage, pledge, transfer or other disposition of, or tender offer for, all or any substantial portion 25% of the assets or capital stock outstanding shares of Parent or any of its material Subsidiaries taken as a whole, Common Stock or (iii) inquiries any inquiry, proposal or proposals concerning offer to acquire in any manner, directly or which may reasonably be expected to lead toindirectly, any assets of Parent representing more than 25% of the foregoing (a "Parent Acquisition Transaction") or negotiateassets of the Parent, explore or otherwise enter into discussions in any way with any third party (each case other than the Company transactions contemplated by this Agreement. Parent shall immediately cease and cause to be terminated any existing activities, discussions or its affiliates) negotiations by Parent or any Parent Representative, with any parties conducted heretofore with respect to any Parent Acquisition Transaction or enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transactions contemplated by the Transaction Documents. Parent shall promptly advise the Company of the terms, conditions and identity of the third party making any inquiries or proposals relating to any Parent Acquisition Transactionforegoing.
(b) Notwithstanding the foregoing in the event that Parent receives an unsolicited bona fide written proposal for a Parent Acquisition Transaction from a third party, Parent may furnish non-public information to, and negotiate with, such third party; provided that Parent (i) provides prior written notice to the Company; (ii) such third party enters into a confidentiality agreement having terms no more favorable to such third party than the terms of the Confidentiality Agreement are to the Company; (iii) (A) Parent's Board of Directors shall have concluded in good faith based on the advice of its investment banker, that such Parent Acquisition Transaction may reasonably be expected, if consummated, to result in a transaction more favorable to Parent and its stockholders than the Merger and such third party is financially capable of consummating such Parent Acquisition Transaction, and (B) Parent's Board of Directors shall have concluded in good faith based on the advice of outside counsel to Parent, that any failure to provide such non-public information to, or negotiate with, such party would be inconsistent with Parent's Board of Directors' fiduciary duties to stockholders of Parent.
(c) Nothing in this Section 5.03 shall prohibit the Board of Directors of Parent from withdrawing or modifying its recommendation referred to in Section 2.09 if there exists a Parent Acquisition Transaction and the Board of Directors of the Company, after one (1) business day prior written notice to the Company and consultation with and based upon the advice of independent legal counsel, determines in good faith that any failure to do so would be inconsistent with the fiduciary duties of the Board of Directors of Parent to stockholders of the Company.
Appears in 1 contract
Samples: Merger Agreement (BTHC VI Inc)
No Solicitation by Parent. (a) Immediately following the execution of this Agreement, Parent will terminate any and all existing activities, arrangements, discussions and negotiations with third parties (other than the Company and those entities identified in Section 5.01(b)(iv)(1) of the Parent Disclosure Letter) with respect to any possible Parent Acquisition Transaction (as defined below). Except as expressly provided in Sections 5.03(b), 5.03(c) and 7.01, prior to the Effective Time, Parent shall not, and nor shall not it permit any Parent Subsidiary to, nor shall it authorize or knowingly permit any of its Subsidiaries officer, director or employee of, or any of its investment banker, attorney or its Subsidiaries' directorsother advisor or representative of, officers, employees, agents Parent or representatives any Parent Subsidiary to, directly or indirectly, solicit, initiate, facilitate or encourage (including by way of furnishing or disclosing information)
(i) directly or indirectly solicit, initiate or encourage the submission of, any merger, consolidation, other business combination involving Parent or its Subsidiaries Takeover Proposal (other than mergers, consolidations or transfers solely between and among Parent and any wholly-owned Subsidiaryas defined in Section 5.03(f)), (ii) enter into any acquisition, sale, lease, exchange, mortgage, pledge, transfer or other disposition of, or tender offer for, all or agreement with respect to any substantial portion of the assets or capital stock of Parent or any of its material Subsidiaries taken as a whole, Takeover Proposal or (iii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or proposals concerning the making of any proposal that constitutes, or which may reasonably be expected to lead to, any Parent Takeover Proposal; provided, however, that prior to receipt of the foregoing Parent Stockholder Approval (a the "Parent Acquisition TransactionApplicable Period"), if Parent receives a proposal or offer that was not solicited by Parent and that did not otherwise result from a breach or deemed breach of this Section 5.03(a) or negotiate, explore or otherwise enter into discussions and that the Parent Board believes in any way with any good faith could result in a third party making a Parent Superior Proposal (other than the Company or its affiliatesas defined in Section 5.03(b)), and subject to compliance with Section 5.03(c), Parent may (x) furnish information with respect to any the Parent Acquisition Transaction or enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transactions contemplated by the Transaction Documents. Parent shall promptly advise the Company of the terms, conditions and identity of the third party making any inquiries or proposals relating to any Parent Acquisition Transaction.
(b) Notwithstanding the foregoing in the event that Parent receives an unsolicited bona fide written proposal for a Parent Acquisition Transaction from a third party, Parent may furnish non-public information to, and negotiate with, such third party; provided that Parent (i) provides prior written notice to the Company; (ii) person making such third party enters into a proposal or offer pursuant to a customary confidentiality agreement having the terms of which shall be no more less favorable to such third party the Parent than the terms of the Confidentiality Agreement are to and (y) participate in discussions or negotiations with such person regarding such proposal or offer. Without limiting the Company; (iii) (A) Parent's Board foregoing, it is agreed that any violation of Directors shall have concluded the restrictions set forth in good faith based on the advice preceding sentence by any affiliate, director or executive officer of its Parent or any Parent Subsidiary or any investment banker, that such attorney or other advisor or representative of Parent Acquisition Transaction may reasonably or any Parent Subsidiary, shall be expected, if consummated, deemed to result in be a transaction more favorable to Parent and its stockholders than the Merger and such third party is financially capable breach of consummating such Parent Acquisition Transaction, and (Bthis Section 5.03(a) Parent's Board of Directors shall have concluded in good faith based on the advice of outside counsel to Parent, that any failure to provide such non-public information to, or negotiate with, such party would be inconsistent with Parent's Board of Directors' fiduciary duties to stockholders of by Parent.
(c) Nothing in this Section 5.03 shall prohibit the Board of Directors of Parent from withdrawing or modifying its recommendation referred to in Section 2.09 if there exists a Parent Acquisition Transaction and the Board of Directors of the Company, after one (1) business day prior written notice to the Company and consultation with and based upon the advice of independent legal counsel, determines in good faith that any failure to do so would be inconsistent with the fiduciary duties of the Board of Directors of Parent to stockholders of the Company.
Appears in 1 contract
No Solicitation by Parent. (a) Immediately following During the execution of this AgreementPre-Closing Period, except as expressly permitted by Section 5.4(b) or Section 5.4(d), (i) Parent will terminate any shall cease, and shall cause its officers and directors and shall direct the other Parent Representatives to cease, and cause to be terminated all existing activitiesdiscussions, arrangements, discussions negotiations and negotiations communications with third parties any Persons or entities with respect to any Parent Acquisition Proposal (other than the Company and those entities identified in Section 5.01(b)(iv)(1transactions contemplated hereby); (ii) of the Parent Disclosure Letter) with respect to any possible Parent Acquisition Transaction (as defined below). Except as expressly provided in Sections 5.03(b), 5.03(c) and 7.01, prior to the Effective Time, Parent shall not, and shall not authorize or permit any of its Subsidiaries or any of its or its Subsidiaries' officers, directors, officersinvestment bankers, employeesattorneys, accountants and other advisors, agents or and representatives (collectively, the “Parent Representatives”) to, directly or indirectlyindirectly through another Person, solicit, (A) initiate, facilitate seek, solicit or knowingly encourage (including by way of furnishing or disclosing information)
(i) any merger, consolidation, other business combination involving Parent or its Subsidiaries (other than mergers, consolidations or transfers solely between and among Parent and any whollynon-owned Subsidiary), (ii) any acquisition, sale, lease, exchange, mortgage, pledge, transfer or other disposition of, or tender offer for, all or any substantial portion of the assets or capital stock of public information relating to Parent or any of its material Subsidiaries taken as a wholesubsidiaries), or (iii) inquiries knowingly induce or proposals concerning or take any other action which may would reasonably be expected to lead to the making, submission or announcement of any Parent Acquisition Proposal, (B) engage in negotiations or discussions with, or provide any non-public information or non-public data to, any of the foregoing (a "Parent Acquisition Transaction") or negotiate, explore or otherwise enter into discussions in any way with any third party Person (other than the Company or any of its affiliatesAffiliates or any Company Representatives) with respect relating to any Parent Acquisition Transaction Proposal or grant any waiver or release under any standstill or other agreement (except that if the Parent Board (or any committee thereof) determines in good faith that the failure to grant any waiver or release would reasonably be expected to be inconsistent with the Parent directors’ fiduciary duties under applicable law, Parent may waive, any such standstill provision in order to permit a third party to make a Parent Acquisition Proposal), (C) enter into any agreement, arrangement including any letter agreement, memorandum of understanding, agreement in principal, merger agreement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transactions contemplated by the Transaction Documents. Parent shall promptly advise the Company of the terms, conditions and identity of the third party making any inquiries or proposals similar agreement relating to any Parent Acquisition TransactionProposal, or (D) otherwise resolve to do any of the foregoing; (iii) Parent shall not provide and shall, within twenty four (24) hours of the date hereof, terminate access of any third party to any data room (virtual or actual) containing any of Parent’s confidential information; and (iv) within two (2) Business Days after the date hereof, Parent shall request the return or destruction of all confidential, non-public information provided to third parties that have entered into confidentiality agreements relating to a possible Parent Acquisition Proposal with Parent or any of its subsidiaries. Notwithstanding the foregoing, nothing contained in this Section 5.4 or in Section 6.4 or any other provision of this Agreement shall prohibit Parent or the Parent Board (or any committee thereof) from (A) taking and disclosing to Parent Shareholders the fact that any Parent Acquisition Proposal has been made, its position with respect to any tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act or making any statement contemplated by Item 1012(a) of Regulation MA or any “stop, look and listen” statement or (B) taking any of the actions set forth in Section 5.4(a) with respect to a Parent Licensing Deal.
(b) Notwithstanding the foregoing foregoing, at any time prior to obtaining the Parent Shareholder Approval, if Pxxxxx receives a written Parent Acquisition Proposal from a third party and the receipt of such Parent Acquisition Proposal was not initiated, sought, solicited, knowingly encouraged or knowingly induced in violation of Section 5.4(a), then Parent may (i) contact the event Person who has made such Parent Acquisition Proposal in order to clarify the terms of such Parent Acquisition Proposal so that the Parent receives Board may inform itself about such Parent Acquisition Proposal, (ii) furnish information concerning its business, properties or assets to any Person pursuant to an unsolicited bona fide written proposal for Acceptable Confidentiality Agreement and (iii) negotiate and participate in discussions and negotiations with such Person concerning a Parent Acquisition Transaction from a third partyProposal, Parent may furnish non-public information to, and negotiate with, such third party; provided that Parent (i) provides prior written notice to in the Company; case of clauses (ii) such third party enters into a confidentiality agreement having terms no more favorable to such third party than the terms of the Confidentiality Agreement are to the Company; and (iii) (A) Parent's ), only if the Parent Board of Directors shall have concluded first determines in good faith based on the advice of faith, after consultation with its investment bankerfinancial advisor and outside legal counsel, that such Parent Acquisition Transaction may Proposal constitutes or is reasonably be expectedlikely to constitute or to lead to a Parent Superior Proposal. Parent (A) shall promptly (and in any case within twenty-four (24) hours) provide the Company notice (1) of the receipt of any Parent Acquisition Proposal, if consummatedwhich notice shall include a complete, to result in a transaction more favorable to Parent and its stockholders than the Merger and such third party is financially capable unredacted copy of consummating such Parent Acquisition TransactionProposal, and (B2) Parent's Board of Directors shall have concluded in good faith based on the advice of outside counsel to Parentany inquiries, that proposals or offers received by, any failure to provide such requests for non-public information tofrom, or negotiate any discussions or negotiations sought to be initiated or continued with, Parent or any Parent Representatives concerning a Parent Acquisition Proposal that constitutes or is reasonably likely to constitute or lead to a Parent Acquisition Proposal, and disclose the identity of the other party (or parties) and the material terms of such inquiry, offer, proposal or request and, in the case of written materials, provide copies of such materials, (B) shall promptly (and in any case within twenty-four (24) hours) make available to the Company copies of all written materials provided by Parent or Parent’s Representatives to such party would be inconsistent with Parent's Board but not previously made available to the Company and (C) shall keep the Company informed on a reasonably prompt basis (and, in any case, within twenty-four (24) hours of Directors' fiduciary duties to stockholders any significant development) of Parentthe status and material details (including amendments and proposed amendments) of any such Parent Acquisition Proposal or other inquiry, offer, proposal or request.
(c) Nothing Except as permitted by Section 5.4(d) or Section 5.4(e), neither the Parent Board nor any committee thereof shall (i) withdraw, qualify or modify, or publicly propose to withdraw, qualify or modify, the Parent Recommendation, in this each case in a manner adverse to the Company, (ii) approve or recommend any Parent Acquisition Proposal, (iii) enter into any agreement with respect to any Parent Acquisition Proposal (other than an Acceptable Confidentiality Agreement pursuant to Section 5.03 shall prohibit 5.4(b)) or (iv) if any Parent Acquisition Proposal is publicly announced, fail to reaffirm or re-publish the Board Parent Recommendation within ten (10) Business Days of Directors being requested by the Company to do so (provided that (A) the Company may make such request on no more than two (2) occasions in response to the same facts, events, circumstances or set of Parent from withdrawing or modifying its recommendation referred to circumstances arising in Section 2.09 if there exists connection with a Parent Acquisition Transaction Proposal, (B) the Company may not make any such request at any time following Parent’s delivery of a notice pursuant to clause (B) of Section 5.4(d) or clause (ii) of Section 5.4(e) and (C) if the Company has made any such request and prior to the expiration of ten (10) Business Days Parent delivers a notice pursuant to clause (B) of Section 5.4(d) or clause (ii) of Section 5.4(e), the ten (10) Business Day period set forth in this clause (iv) shall be tolled on a daily basis during the period beginning on the date of delivery of such notice and ending on the date on which the Parent Board shall have determined not to effect a Parent Adverse Recommendation Change pursuant to Section 5.4(d) or 5.4(e), as applicable) (any action described in this sentence being referred to as a “Parent Adverse Recommendation Change”).
(d) If, at any time prior to the receipt of Directors of Parent Shareholder Approval, the CompanyParent Board receives a Parent Acquisition Proposal that the Parent Board determines in good faith, after one (1) business day prior written notice to the Company and consultation with its financial advisor and based upon the advice of independent outside legal counsel, constitutes a Parent Superior Proposal, the Parent Board may (i) effect a Parent Adverse Recommendation Change or (ii) authorize Parent to terminate this Agreement pursuant to Section 8.1(b)(iii) in order to enter into a definitive agreement providing for a Parent Superior Proposal, if the Parent Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that the failure to take such action would reasonably be expected to be inconsistent with Parent’s directors’ fiduciary duties under applicable Law; (B) Parent has notified the Company in writing that it intends to effect a Parent Adverse Recommendation Change or terminate this Agreement; (C) if applicable, Parent has provided the Company a copy of the proposed definitive agreements between Parent and the Person making such Parent Superior Proposal; (D) for a period of four (4) days following the notice delivered pursuant to clause (B) of this Section 5.4(d), Parent shall have discussed and negotiated in good faith and made Parent Representatives available to discuss and negotiate in good faith (in each case to the extent the Company desires to negotiate) with Company Representatives any proposed modifications to the terms and conditions of this Agreement so that the failure to take such action would no longer be reasonably be expected to inconsistent with Parent’s directors’ fiduciary duties under applicable Law (it being understood and agreed that any amendment to any material term or condition of any Parent Superior Proposal shall require a new notice and a new two (2) day negotiation period; and (e) no earlier than the end of such negotiation period, the Parent Board shall have determined in good faith, after consultation with its financial advisor and outside legal counsel, after considering the terms of any proposed amendment or modification to this Agreement (and all financial, legal and regulatory terms and conditions of such Parent Acquisition Proposal and the expected timing of consummation and the relative risk of consummation of the applicable proposal), that (x) the Parent Acquisition Proposal that is the subject of the notice described in clause (B) above still constitutes a Parent Superior Proposal and (y) the failure to do so take such action would still reasonably be expected to be inconsistent with Parent’s directors’ fiduciary duties under applicable Law.
(e) Other than in connection with a Parent Superior Proposal (which shall be subject to Section 5.4(d) and shall not be subject to this Section 5.4(e)), prior to obtaining the Parent Shareholder Approval, the Parent Board may take any action prohibited by clause (i) of Section 5.4(c), but only in response to a Parent Intervening Event and only if (i) the Parent Board determines in good faith, after consultation with its financial advisor and outside legal counsel, that the failure to take such action would reasonably be expected to be inconsistent with the Parent directors’ fiduciary duties under applicable Law; (ii) Parent has notified the Company in writing that it intends to effect a Parent Adverse Recommendation Change due to the occurrence of a Parent Intervening Event (which notice shall specify the Parent Intervening Event in reasonable detail); (iii) for a period of four (4) days following the notice delivered pursuant to clause (ii) of this Section 5.4(e), Parent shall have discussed and negotiated in good faith, and shall have made Parent Representatives available to discuss and negotiate in good faith (in each case to the extent the Company desires to negotiate), with Company Representatives any proposed modifications to the terms and conditions of this Agreement so that the failure to take such action would no longer reasonably be expected to be inconsistent with the Parent directors’ fiduciary duties under applicable Law (it being understood and agreed that any material change to the facts and circumstances relating to the Parent Intervening Event shall require a new notice and a new two (2) day negotiation period; and (iv) no earlier than the end of the negotiation period, the Parent Board shall have determined in good faith, after consultation with its financial advisor and outside legal counsel, after considering the terms of Directors of any proposed amendment or modification to this Agreement, that the failure to take such action would still reasonably be expected to be inconsistent with the Parent to stockholders of the Companydirectors’ fiduciary duties under applicable Law.
Appears in 1 contract
No Solicitation by Parent. (a) Immediately following the execution of this Agreement, Parent will terminate any and all existing activities, arrangements, discussions and negotiations with third parties (other than the Company and those entities identified in Section 5.01(b)(iv)(1) of the Parent Disclosure Letter) with respect to any possible Parent Acquisition Transaction (as defined below). Except as expressly provided in Sections 5.03(b), 5.03(c) and 7.01, prior to the Effective Time, Parent shall not, and shall not authorize or permit any of its Subsidiaries controlled affiliates or any of its or its Subsidiaries' directors, their officers, employeesdirectors or employees to, agents and shall use its reasonable best efforts to cause any Representative retained by it or representatives any of its controlled affiliates not to, directly or indirectly, (i) solicit, initiate, facilitate initiate or knowingly encourage (including by way of furnishing or disclosing information)
(i) , or knowingly take any mergerother action designed to facilitate, consolidationany inquiries regarding, other business combination involving or the making of, any proposal the consummation of which would constitute a Parent Alternative Transaction or its Subsidiaries (other than mergers, consolidations or transfers solely between and among Parent and any wholly-owned Subsidiary), (ii) participate in any acquisition, sale, lease, exchange, mortgage, pledge, transfer discussions or other disposition ofnegotiations, or tender offer for, all or any substantial portion of the assets or capital stock of Parent or any of its material Subsidiaries taken as a whole, or (iii) inquiries or proposals concerning or which may reasonably be expected to lead to, any of the foregoing (a "Parent Acquisition Transaction") or negotiate, explore or otherwise enter into discussions cooperate in any way with any third party person (other than the Company or its affiliates) group of persons), with respect to any inquiries regarding, or the making of, any proposal the consummation of which would constitute a Parent Acquisition Transaction Alternative Transaction, except to notify such person (or enter into group of persons) as to the existence of the provisions of this Section 5.3; provided, however, that if, at any agreementtime prior to obtaining the Parent Shareholder Approval, arrangement the Board of Directors of Parent determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) that any such proposal that did not result from a material breach of this Section 5.3(a) constitutes or understanding requiring it could reasonably be expected to abandonresult in a Parent Superior Proposal, terminate subject to compliance with Section 5.3(d), Parent and its Representatives may (A) furnish information with respect to Parent and its subsidiaries to the person (or fail group of persons) making such proposal (and its Representatives and financing sources) (provided that all such information has previously been provided to consummate the Merger or any other transactions contemplated by the Transaction Documents. Parent shall promptly advise the Company of the terms, conditions and identity of the third party making any inquiries or proposals relating to any Parent Acquisition Transaction.
(b) Notwithstanding the foregoing in the event that Parent receives an unsolicited bona fide written proposal for a Parent Acquisition Transaction from a third party, Parent may furnish non-public information to, and negotiate with, such third party; is provided that Parent (i) provides prior written notice to the Company; (iiCompany prior to or substantially concurrent with the time it is provided to such person) such third party enters into pursuant to a customary confidentiality agreement having containing terms (including as to confidentiality and “standstill” terms) generally no more favorable to such third party less restrictive than the terms of the Confidentiality Agreement are to the Company; (iii) (A) Parent's Board of Directors shall have concluded in good faith based on the advice of its investment banker, provided that such Parent Acquisition Transaction “standstill” terms may reasonably be expected, if consummated, to result in a transaction more favorable to Parent and its stockholders than the Merger and such third party is financially capable of consummating such Parent Acquisition Transaction, and (B) Parent's Board of Directors shall have concluded in good faith based on the advice of outside counsel to Parent, that any failure to provide such non-public information to, or negotiate with, such party would be inconsistent with Parent's Board of Directors' fiduciary duties to stockholders of Parent.
(c) Nothing in this Section 5.03 shall prohibit waived by the Board of Directors of Parent from withdrawing or modifying its recommendation referred to if it determines, in Section 2.09 if there exists a Parent Acquisition Transaction and the Board of Directors of the Company, after one (1) business day prior written notice to the Company and consultation with and based upon the advice of independent legal outside counsel, determines in good faith that any the failure to do so would be reasonably likely to be inconsistent with the its fiduciary duties under Applicable Law) and (B) participate in discussions or negotiations regarding such proposal with the person (or group of persons) making such proposal (and its Representatives and financing sources). For purposes of this Agreement, “Parent Alternative Transaction” means any of (i) a transaction or series of transactions pursuant to which any person (or group of persons) or its or their equityholders, other than the Company and its subsidiaries (such person (or group of persons) or its or their equityholders, a “Parent Third Party”), acquires or would acquire, directly or indirectly, beneficial ownership (as defined in Rule 13d-3 under the Exchange Act) of 20% or more of the Board issued and outstanding Parent Common Shares or securities (or options, rights or warrants to purchase, or securities convertible into or exchangeable for, such securities) representing 20% or more of Directors the voting power of Parent, whether from Parent or pursuant to a tender offer, exchange offer, merger, consolidation, amalgamation, share exchange, scheme of arrangement, combination or otherwise or (ii) any transaction or series of transactions pursuant to which any Parent Third Party acquires or would acquire, directly or indirectly, assets (including for this purpose the outstanding equity securities of subsidiaries of Parent to stockholders or any entity surviving any merger, consolidation, amalgamation, share exchange, scheme of arrangement or combination including any of them) or businesses of Parent or any of its subsidiaries representing 20% or more of the Companyrevenues, net income or assets (in each case on a consolidated basis) of Parent and its subsidiaries taken as a whole, whether from Parent or pursuant to a merger, consolidation, amalgamation, share exchange, scheme of arrangement, combination or otherwise.
Appears in 1 contract
Samples: Merger Agreement (IHS Markit Ltd.)
No Solicitation by Parent. (a) Immediately following the execution of this Agreement, Parent will terminate any and all existing activities, arrangements, discussions and negotiations with third parties (other than the Company and those entities identified in Section 5.01(b)(iv)(1) of the Parent Disclosure Letter) with respect to any possible Parent Acquisition Transaction (as defined below). Except as expressly provided in Sections 5.03(b), 5.03(c) and 7.01, prior to the Effective Time, Parent shall not, and shall not authorize or permit any of its Subsidiaries controlled affiliates or any of its or its Subsidiaries' directors, their officers, employeesdirectors or employees to, agents and shall use its reasonable best efforts to cause any Representative retained by it or representatives any of its controlled affiliates not to, directly or indirectly, (i) solicit, initiate, facilitate initiate or knowingly encourage (including by way of furnishing or disclosing information)
(i) , or knowingly take any mergerother action designed to facilitate, consolidationany inquiries regarding, other business combination involving or the making of, any proposal the consummation of which would constitute a Parent Alternative Transaction or its Subsidiaries (other than mergers, consolidations or transfers solely between and among Parent and any wholly-owned Subsidiary), (ii) participate in any acquisition, sale, lease, exchange, mortgage, pledge, transfer discussions or other disposition ofnegotiations, or tender offer for, all or any substantial portion of the assets or capital stock of Parent or any of its material Subsidiaries taken as a whole, or (iii) inquiries or proposals concerning or which may reasonably be expected to lead to, any of the foregoing (a "Parent Acquisition Transaction") or negotiate, explore or otherwise enter into discussions cooperate in any way with any third party person (other than the Company or its affiliates) group of persons), with respect to any inquiries regarding, or the making of, any proposal the consummation of which would constitute a Parent Acquisition Transaction Alternative Transaction, except to notify such person (or enter into group of persons) as to the existence of the provisions of this Section 5.3; provided, however, that if, at any agreementtime prior to obtaining the Parent Shareholder Approval, arrangement the Board of Directors of Parent determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) that any such proposal that did not result from a material breach of this Section 5.3(a) constitutes or understanding requiring it could reasonably be expected to abandonresult in a Parent Superior Proposal, terminate subject to compliance with Section 5.3(d), Parent and its Representatives may (A) furnish information with respect to Parent and its subsidiaries to the person (or fail group of persons) making such proposal (and its Representatives and financing sources) (provided that all such information has previously been provided to consummate the Merger or any other transactions contemplated by the Transaction Documents. Parent shall promptly advise the Company of the terms, conditions and identity of the third party making any inquiries or proposals relating to any Parent Acquisition Transaction.
(b) Notwithstanding the foregoing in the event that Parent receives an unsolicited bona fide written proposal for a Parent Acquisition Transaction from a third party, Parent may furnish non-public information to, and negotiate with, such third party; is provided that Parent (i) provides prior written notice to the Company; (iiCompany prior to or substantially concurrent with the time it is provided to such person) such third party enters into pursuant to a customary confidentiality agreement having containing terms (including as to confidentiality and “standstill” terms) generally no more favorable to such third party less restrictive than the terms of the Confidentiality Agreement are to the Company; (iii) (A) Parent's Board of Directors shall have concluded in good faith based on the advice of its investment banker, provided that such Parent Acquisition Transaction “standstill” terms may reasonably be expected, if consummated, to result in a transaction more favorable to Parent and its stockholders than the Merger and such third party is financially capable of consummating such Parent Acquisition Transaction, and (B) Parent's Board of Directors shall have concluded in good faith based on the advice of outside counsel to Parent, that any failure to provide such non-public information to, or negotiate with, such party would be inconsistent with Parent's Board of Directors' fiduciary duties to stockholders of Parent.
(c) Nothing in this Section 5.03 shall prohibit waived by the Board of Directors of Parent from withdrawing or modifying its recommendation referred to if it determines, in Section 2.09 if there exists a Parent Acquisition Transaction and the Board of Directors of the Company, after one (1) business day prior written notice to the Company and consultation with and based upon the advice of independent legal outside counsel, determines in good faith that any the failure to do so would be reasonably likely to be inconsistent with the its fiduciary duties of the Board of Directors of Parent to stockholders of the Company.under Applicable Law) and (B) participate in discussions or negotiations
Appears in 1 contract
Samples: Merger Agreement (S&P Global Inc.)
No Solicitation by Parent. (a) Immediately following the execution of this Agreement, Parent will terminate any and all existing activities, arrangements, discussions and negotiations with third parties (other than the Company and those entities identified in Section 5.01(b)(iv)(1) of the Parent Disclosure Letter) with respect to any possible Parent Acquisition Transaction (as defined below). Except as expressly provided permitted in Sections 5.03(b), 5.03(c) and 7.01, prior to the Effective Timethis Section 5.6, Parent shall not, and shall not authorize or permit any of cause its Subsidiaries or any of and its or its Subsidiaries' directors, officers, employees, agents or representatives and their respective Agents not to, directly or indirectly, (i) initiate, solicit, initiate, knowingly encourage or knowingly facilitate or encourage (including by way of furnishing or disclosing non-public information)
(i) , or take any mergerother action designed to lead to, consolidationany inquiries or the making or submission of any proposal that constitutes, other business combination involving or would reasonably be expected to lead to, a Parent or its Subsidiaries (other than mergers, consolidations or transfers solely between and among Parent and any wholly-owned Subsidiary)Acquisition Proposal, (ii) any acquisition, sale, lease, exchange, mortgage, pledge, transfer participate or other disposition ofengage in discussions or negotiations with, or tender offer forfurnish any non-public information or data to, all any Person that has made a Parent Acquisition Proposal or any substantial portion inquiry or proposal that would reasonably be expected to lead to a Parent Acquisition Proposal, (iii) accept a Parent Acquisition Proposal or enter into any agreement (other than an Acceptable Parent Confidentiality Agreement in circumstances contemplated in this Section 5.6), including any letter of the assets intent or capital stock agreement in principle, providing for or relating to a Parent Acquisition Proposal, (iv) amend or grant any waiver, release or modification under, or fail to enforce, any standstill or similar agreement with respect to any class of equity securities of Parent or any of its material Subsidiaries taken as a wholeSubsidiaries, or (iiiv) inquiries resolve to do any of the foregoing. Without limiting the foregoing, it is agreed that any action taken by any of Parent’s Subsidiaries or proposals concerning by any Agents of the Parent or which any of its Subsidiaries that, if taken by Parent, would constitute a breach of this Section 5.6 shall constitute a breach of this Section 5.6 by Parent, regardless of (x) whether such Agent is authorized to take such action, (y) whether such Agent is purporting to act on behalf of Parent or any of its Subsidiaries or otherwise, and (z) any contrary instruction given to such Agent by Parent or any of its other Agents pursuant to this Section 5.6 or otherwise. Notwithstanding anything to the contrary in this Agreement, Parent and the Parent Board, as applicable, may take any actions described in clause (ii) of this Section 5.6(a) with respect to a third-party if at any time prior to obtaining the Parent Requisite Approval (A) Parent receives a written Parent Acquisition Proposal from such third-party that the Parent Board believes in good faith is bona fide, (B) the Parent Board determines in good faith, after consultation with its financial advisors and outside legal counsel, that such proposal constitutes, or would reasonably be expected to lead to, a Parent Superior Proposal, and (C) the Parent Board determines in good faith, after consultation with its outside counsel, that the failure to participate in such negotiations or discussions or to furnish such information or data to such third-party would be inconsistent with the Parent Board’s fiduciary duties under applicable Legal Requirements, provided that (1) such Parent Acquisition Proposal was received after the date of this Agreement, such Parent Acquisition Proposal was not solicited in, or otherwise was not the result of a, violation of this Section 5.6 and such Parent Acquisition Proposal has not been withdrawn, (2) Parent provides to the Company the notice required by Section (e) with respect to such Parent Acquisition Proposal and (3) Parent shall not deliver any information to such third-party without entering into a customary confidentiality agreement with such third-party containing limitations on the use and disclosure of non-public information furnished to such third-party that are substantially similar to, and are no less favorable to Parent in the aggregate than, the terms of the Confidentiality Agreement; provided that such confidentiality agreement does not contain provisions that would prohibit Parent from providing any information to the Company in accordance with this Section 5.6 or otherwise prohibits Parent from complying with the provisions of this Section 5.6 (an “Acceptable Parent Confidentiality Agreement”). Nothing contained in this Section 5.6 shall prohibit Parent or the Parent Board from taking and disclosing to Parent’s shareholders a position with respect to a Parent Acquisition Proposal pursuant to Rule 14d-9 and 14e-2(a) promulgated under the Exchange Act or from making any similar disclosure, in either case to the extent required by applicable Legal Requirements; provided, however, that any such disclosure (other than a “stop, look and listen” communication or similar communication of the type contemplated by Section 14d-9(f) under the Exchange Act) shall be deemed to be a Parent Adverse Recommendation Change unless the Parent Board expressly reaffirms the Parent Board Recommendation in such disclosure and expressly rejects any applicable Parent Acquisition Proposal.
(b) Except as otherwise provided in Section 5.6(c) or Section 5.6(d), neither the Parent Board nor any committee thereof shall directly or indirectly (i) (A) withhold, withdraw, modify, qualify or fail to make, or publicly propose to withhold, withdraw, modify, qualify or fail to make, in any manner adverse to the Company, the approval, recommendation or declaration of advisability by the Parent Board or any such committee thereof of this Agreement, the Merger or the other transactions contemplated by this Agreement, or (B) recommend, adopt or approve, or propose publicly to recommend, adopt or approve, any Parent Acquisition Proposal (any action described in this clause (i) being referred to as a “Parent Adverse Recommendation Change”), (ii) approve or recommend, or publicly propose to approve or recommend, or allow Parent or any of its Subsidiaries to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other agreement (A) constituting or related to, or that is intended to or could reasonably be expected to lead to, any of the foregoing (a "Parent Acquisition Transaction") or negotiate, explore or otherwise enter into discussions in any way with any third party Proposal (other than the Company an Acceptable Parent Confidentiality Agreement permitted pursuant to Section 5.6(a)) or its affiliates(B) with respect to any Parent Acquisition Transaction or enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transactions transaction contemplated by the Transaction Documents. Parent shall promptly advise the Company this Agreement, or (iii) resolve, propose, agree or publicly announce an intention to do any of the termsforegoing. For the avoidance of doubt, conditions and identity a public statement that merely describes Parent’s receipt of the third party making any inquiries or proposals relating to any a Parent Acquisition TransactionProposal and the operation of this Agreement with respect thereto shall not be deemed a Parent Adverse Recommendation Change so long as the Parent Board expressly reaffirms the Parent Board Recommendation in such public statement.
(bc) Notwithstanding the foregoing in the event that If Parent receives an unsolicited bona fide written proposal for a Parent Acquisition Transaction from a third partyProposal that was not solicited in, Parent may furnish non-public information toor otherwise was not the result of a, violation of Section 5.6(a), and negotiate withthat the Parent Board believes in good faith is bona fide, and the Parent Board (x) after consultation with its financial advisors and outside legal counsel, concludes that such third partyParent Acquisition Proposal constitutes a Parent Superior Proposal and (y) following consultation with outside legal counsel, determines that the failure of the Parent Board to make a Parent Adverse Recommendation Change would be inconsistent with its fiduciary duties under applicable Legal Requirements, then the Parent Board may at any time prior to obtaining the Parent Requisite Approval, effect a Parent Adverse Recommendation Change; provided provided, however, that the Parent Board may not take such action pursuant to the foregoing unless and until:
(i) provides Parent has provided prior written notice (which notice must state that the Parent Board has made the determinations described in, and in accordance with, the foregoing clauses (x) and (y) of Section (c)) to the Company; Company specifying in reasonable detail the reasons for such action (including a description of the material terms of such Parent Superior Proposal, identifying the Person or group making such Parent Superior Proposal and delivering to the Company a copy of the proposed definitive agreement providing for such Parent Superior Proposal in the form to be entered into and any other relevant proposed transaction agreements) at least four Business Days in advance of its intention to make a Parent Adverse Recommendation Change (the period inclusive of all such days, the “Parent Notice Period”) (it being understood and agreed that any material amendment to the terms of a Parent Superior Proposal shall require a new notice pursuant to this Section 5.6(c) and a new Parent Notice Period, except that such new Parent Notice Period in connection with any amendment shall be for three Business Days from the time the Company receives such notice (as opposed to four Business Days));
(ii) during the Parent Notice Period, Parent has negotiated with the Company in good faith (to the extent the Company desires to negotiate) to make such third party enters into a confidentiality agreement having terms no more favorable adjustments to such third party than the terms and conditions of this Agreement as would obviate the Confidentiality Agreement are need for the Parent Board to the Companymake a Parent Adverse Recommendation Change; and
(iii) (A) Parent's at the end of the Parent Notice Period, the Parent Board of Directors shall have concluded again concludes in good faith based on faith, after consultation with its financial advisors and outside legal counsel, and taking into account any adjustment or modification to the advice terms and conditions of its investment bankerthis Agreement proposed by the Company, that such Parent Acquisition Transaction may reasonably be expected, if consummated, Proposal continues to result in constitute a transaction more favorable Parent Superior Proposal and that the failure of the Parent Board to effect a Parent and its stockholders than the Merger and such third party is financially capable of consummating Adverse Recommendation Change with respect to such Parent Acquisition Transaction, and (B) Parent's Board of Directors shall have concluded in good faith based on the advice of outside counsel to Parent, that any failure to provide such non-public information to, or negotiate with, such party Superior Proposal would be inconsistent with Parent's Board of Directors' its fiduciary duties to stockholders of Parentunder applicable Legal Requirements.
(cd) Nothing Other than in this Section 5.03 shall prohibit the Board of Directors of Parent from withdrawing or modifying its recommendation referred to in Section 2.09 if there exists connection with a Parent Acquisition Transaction Proposal (which shall be subject to Section 5.6(c) and shall not be subject to this Section 5.6(d)), nothing in this Agreement shall prohibit or restrict the Parent Board of Directors of from making a Parent Adverse Recommendation Change at any time prior to obtaining the CompanyParent Requisite Approval in response to a Parent Intervening Event to the extent that (i) the Parent Board determines in good faith, after one (1) business day prior written notice to the Company and consultation with and based upon the advice of independent Parent’s outside legal counsel, determines in good faith that any the failure of the Parent Board to do so effect a Parent Adverse Recommendation Change would be inconsistent with the its fiduciary duties under applicable Legal Requirements, and (ii) (A) Parent provides the Company four Business Days’ notice of its intention to take such action, which notice shall specify the reasons therefor, and describe the Parent Intervening Event in reasonable detail, (B) after providing such notice and prior to making such Parent Adverse Recommendation Change, Parent shall negotiate in good faith with the Company during such four Business Day period (to the extent that the Company desires to negotiate) to make such revisions to the terms of this Agreement as would obviate the need for the Parent Board to make a Parent Adverse Recommendation Change, and (C) the Parent Board shall have considered in good faith any changes to this Agreement offered in writing by the Company, and following such four Business Day period, shall have determined in good faith, after consultation with its outside legal counsel and financial advisors, that the failure of the Parent Board to effect a Parent Adverse Recommendation Change with respect to such Parent Intervening Event would be inconsistent with its fiduciary duties under applicable Legal Requirements. “Parent Intervening Event” means a material development or change in circumstances with respect to Parent that occurs or arises after the date of Directors this Agreement that was neither known to Parent or any of Parent to stockholders its Subsidiaries or any of their Agents as of the Companydate of this Agreement nor reasonably foreseeable to Parent or any of its Subsidiaries or any of their Agents as of the date of this Agreement; provided, however, that in no event shall the receipt, existence or terms of a Parent Acquisition Proposal or any matter relating thereto or of consequence thereof constitute a Parent Intervening Event.
Appears in 1 contract
No Solicitation by Parent. (a) Immediately following Except as otherwise provided in this Section 6.4, from the execution date of this AgreementAgreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with its terms, Parent will terminate any and all existing activities, arrangements, discussions and negotiations with third parties (other than the Company and those entities identified in Section 5.01(b)(iv)(1) of the Parent Disclosure Letter) with respect to any possible Parent Acquisition Transaction (as defined below). Except as expressly provided in Sections 5.03(b), 5.03(c) and 7.01, prior to the Effective Time, Parent shall not, and nor shall not it authorize or permit any of its Subsidiaries to, and will use its reasonable best efforts to cause its and their respective Representatives not to, (a) initiate, solicit or any of its or its Subsidiaries' directors, officers, employees, agents or representatives toknowingly encourage, directly or indirectly, solicitthe making of any Parent Acquisition Proposal or (b) other than informing Third Parties of the provisions contained in this Section 6.4, initiateengage in negotiations or substantive discussions with, facilitate or encourage furnish any material nonpublic information to, any Third Party that may relate to a Parent Acquisition Proposal. For purposes of this Agreement, “Parent Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any bona fide proposal or offer (including other than a proposal or offer by way the Company or any of furnishing or disclosing information)
its Affiliates) from a Third Party for (i) any a merger, consolidation, liquidation, recapitalization, share exchange or other business combination transaction involving Parent or involving any of its Subsidiaries representing, directly or indirectly, greater than twenty percent (20%) of any of the assets, net revenues or earnings before interest, taxes, depreciation and amortization of Parent and its Subsidiaries taken as a whole (other than mergers, consolidations or transfers solely between and among any merger involving Parent and one or more of its wholly owned Subsidiaries where Parent is the surviving corporation in the merger, or any wholly-liquidation of a wholly owned SubsidiarySubsidiary of Parent), (ii) the acquisition by any acquisitionPerson of twenty percent (20%) or more of any of the assets, salenet revenues or earnings before interest, leasetaxes, exchangedepreciation and amortization of Parent and its Subsidiaries, mortgage, pledge, transfer taken as a whole or other disposition of(iii) the acquisition by any Person of twenty percent (20%) or more of the issued and outstanding shares of Parent Common Stock, or tender offer for, all twenty percent (20%) or any substantial portion more of the assets or issued and outstanding capital stock of Parent or any of its material Subsidiaries representing, directly or indirectly, greater than twenty percent (20%) of any of the assets, net revenues or earnings before interest, taxes, depreciation and amortization of Parent and its Subsidiaries taken as a whole, or (iii) inquiries or proposals concerning or which may reasonably be expected to lead to, any of the foregoing (a "Parent Acquisition Transaction") or negotiate, explore or otherwise enter into discussions in any way with any third party (other than the Company or its affiliates) with respect to any Parent Acquisition Transaction or enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transactions contemplated by the Transaction Documents. Parent shall promptly advise the Company of the terms, conditions and identity of the third party making any inquiries or proposals relating to any Parent Acquisition Transaction.
(b) Notwithstanding the foregoing in the event that Parent receives an unsolicited bona fide written proposal for a Parent Acquisition Transaction from a third party, Parent may furnish non-public information to, and negotiate with, such third party; provided that Parent (i) provides prior written notice to the Company; (ii) such third party enters into a confidentiality agreement having terms no more favorable to such third party than the terms of the Confidentiality Agreement are to the Company; (iii) (A) Parent's Board of Directors shall have concluded in good faith based on the advice of its investment banker, that such Parent Acquisition Transaction may reasonably be expected, if consummated, to result in a transaction more favorable to Parent and its stockholders than the Merger and such third party is financially capable of consummating such Parent Acquisition Transaction, and (B) Parent's Board of Directors shall have concluded in good faith based on the advice of outside counsel to Parent, that any failure to provide such non-public information to, or negotiate with, such party would be inconsistent with Parent's Board of Directors' fiduciary duties to stockholders of Parent.
(c) Nothing in this Section 5.03 shall prohibit the Board of Directors of Parent from withdrawing or modifying its recommendation referred to in Section 2.09 if there exists a Parent Acquisition Transaction and the Board of Directors of the Company, after one (1) business day prior written notice to the Company and consultation with and based upon the advice of independent legal counsel, determines in good faith that any failure to do so would be inconsistent with the fiduciary duties of the Board of Directors of Parent to stockholders of the Company.
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No Solicitation by Parent. (a) Immediately following From the execution date of this AgreementAgreement until the earlier of the Effective Time and the termination of this Agreement in accordance with Section 8.1, except as provided in Section 5.4(b) or Section 5.4(d), (i) Parent will terminate any shall cease, and shall cause its officers and directors and shall direct the other Parent Representatives to cease, and cause to be terminated all existing activitiesdiscussions, arrangements, discussions negotiations and negotiations communications with third parties any persons or entities with respect to any Parent Acquisition Proposal (other than the Company and those entities identified in Section 5.01(b)(iv)(1transactions contemplated hereby); (ii) of the Parent Disclosure Letter) with respect to any possible Parent Acquisition Transaction (as defined below). Except as expressly provided in Sections 5.03(b), 5.03(c) and 7.01, prior to the Effective Time, Parent shall not, and shall not authorize or permit any of its Subsidiaries or any of its or its Subsidiaries' officers, directors, officersinvestment bankers, employeesattorneys, accountants and other advisors, agents or and representatives (collectively, “Parent Representatives”) to, directly or indirectlyindirectly through another person, solicit, (A) initiate, facilitate seek, solicit or knowingly encourage (including by way of furnishing or disclosing information)
(i) any merger, consolidation, other business combination involving Parent or its Subsidiaries (other than mergers, consolidations or transfers solely between and among Parent and any whollynon-owned Subsidiary), (ii) any acquisition, sale, lease, exchange, mortgage, pledge, transfer or other disposition of, or tender offer for, all or any substantial portion of the assets or capital stock of public information relating to Parent or any of its material Subsidiaries taken as a wholesubsidiaries), or (iii) inquiries knowingly induce or proposals concerning or take any other action which may would reasonably be expected to lead to the making, submission or announcement of any Parent Acquisition Proposal, (B) engage in negotiations or discussions with, or provide any non-public information or non-public data to, any of the foregoing (a "Parent Acquisition Transaction") or negotiate, explore or otherwise enter into discussions in any way with any third party person (other than the Company or any of its affiliates) with respect to any Parent Acquisition Transaction or enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger Affiliates or any other transactions contemplated by the Transaction Documents. Parent shall promptly advise the Company of the terms, conditions and identity of the third party making any inquiries or proposals Representatives) relating to any Parent Acquisition TransactionProposal or grant any waiver or release under any standstill or other agreement (except that if the Parent Board (or any committee thereof) determines in good faith that the failure to grant any waiver or release would be inconsistent with the Parent directors’ fiduciary duties under applicable law, Parent may waive any such standstill provision in order to permit a third party to make a Parent Acquisition Proposal) or (C) resolve to do any of the foregoing; (iii) Parent shall not provide and shall, within twenty-four (24) hours of the date hereof, terminate access of any third party to any data room (virtual or actual) containing any of Parent’s confidential information; and (iv) within two (2) Business Days after the date hereof, Parent shall request the return or destruction of all confidential, non-public information provided to third parties that have entered into confidentiality agreements relating to a possible Parent Acquisition Proposal with Parent or any of its subsidiaries. Notwithstanding the foregoing, nothing contained in this Section 5.4 or in Section 6.5 or any other provision of this Agreement shall prohibit Parent or the Parent Board (or any committee thereof) from taking and disclosing to Parent Shareholders the fact that a Parent Acquisition Proposal has been made, its position with respect to any tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act or making any statement contemplated by Item 1012(a) of Regulation M-A or any “stop, look and listen” statement. Any disclosure made in accordance with the foregoing sentence that specifically constitutes a Parent Adverse Recommendation Change shall result in all of the consequences of a Parent Adverse Recommendation Change set forth in this Agreement.
(b) Notwithstanding the foregoing in foregoing, at any time prior to obtaining the event that Parent Shareholder Approval, if Parent receives an unsolicited bona fide written proposal for a Parent Acquisition Transaction Proposal from a third partyparty and the receipt of such Parent Acquisition Proposal was not initiated, sought, solicited, knowingly encouraged or knowingly induced in violation of Section 5.4(a), then Parent may (i) contact the person who has made such Parent Acquisition Proposal in order to clarify the terms of such Parent Acquisition Proposal so that the Parent Board (or any committee thereof) may inform itself about such Parent Acquisition Proposal, (ii) furnish information concerning its business, properties or assets to any person pursuant to a confidentiality agreement with terms that, taken as a whole, are not materially less favorable to Parent than those contained in the Confidentiality Agreement (and nothing in this Agreement shall restrict Parent from entering into such an agreement) and (iii) negotiate and participate in discussions and negotiations with such person concerning a Parent Acquisition Proposal, in the case of clauses (ii) and (iii), if the Parent Board determines in good faith that such Parent Acquisition Proposal constitutes or is reasonably likely to constitute or lead to a Parent Superior Proposal. Parent (A) shall promptly (and in any case within twenty-four (24) hours) provide the Company notice (1) of the receipt of any Parent Acquisition Proposal, which notice shall include a complete, unredacted copy of such Parent Acquisition Proposal, and (2) of any inquiries, proposals or offers received by, any requests for non-public information tofrom, or any discussions or negotiations sought to be initiated or continued with, Parent or any Parent Representatives concerning a Parent Acquisition Proposal that constitutes or is reasonably likely to constitute or lead to a Parent Acquisition Proposal, and negotiate withdisclose the identity of the other party (or parties) and the material terms of such inquiry, offer, proposal or request and, in the case of written materials, provide copies of such third party; provided that Parent materials, (iB) provides prior written notice shall promptly (and in any case within twenty-four (24) hours) make available to the Company; (ii) such third party enters into a confidentiality agreement having terms no more favorable Company copies of all written diligence materials regarding Parent and its subsidiaries provided by Parent to such third party than but not previously made available to the terms Company and (C) keep the Company informed on a reasonably prompt basis (and, in any case, within twenty-four (24) hours of any significant development) of the Confidentiality Agreement are to the Company; status and material details (iiiincluding amendments and proposed amendments) (A) Parent's Board of Directors shall have concluded in good faith based on the advice of its investment banker, that any such Parent Acquisition Transaction may reasonably be expectedProposal or other inquiry, if consummatedoffer, to result in a transaction more favorable to Parent and its stockholders than the Merger and such third party is financially capable of consummating such Parent Acquisition Transaction, and (B) Parent's Board of Directors shall have concluded in good faith based on the advice of outside counsel to Parent, that any failure to provide such non-public information to, proposal or negotiate with, such party would be inconsistent with Parent's Board of Directors' fiduciary duties to stockholders of Parentrequest.
(c) Nothing Except as permitted by Section 5.4(d) or Section 5.4(e), neither the Parent Board nor any committee thereof shall (i) withdraw, qualify or modify, or publicly propose to withdraw, qualify or modify, the Parent Recommendation, in each case in a manner adverse to the Company, (ii) approve or recommend any Parent Acquisition Proposal, (iii) enter into any agreement with respect to any Parent Acquisition Proposal (other than a confidentiality agreement pursuant to Section 5.4(b)) or (iv) if any Parent Acquisition Proposal is publicly announced, fail to reaffirm or re-publish the Parent Recommendation within ten (10) Business Days of being requested by the Company to do so (provided that (A) the Company may make such request on no more than two (2) occasions, (B) the Company may not make any such request at any time following Parent’s delivery of a notice pursuant to clause (B) of Section 5.4(d) or clause (ii) of Section 5.4(e) and (C) if the Company has made any such request and prior to the expiration of ten (10) Business Days Parent delivers a notice pursuant to clause (B) of Section 5.4(d) or clause (ii) of Section 5.4(e), the ten (10) Business Day period set forth in this clause (iv) shall be tolled on a daily basis during the period beginning on the date of delivery of such notice and ending on the date on which the Parent Board shall have determined not to effect a Parent Adverse Recommendation Change pursuant to Section 5.03 shall prohibit 5.4(d) or 5.4(e), as applicable) (any action described in this sentence being referred to as a “Parent Adverse Recommendation Change”).
(d) If, at any time prior to the Board of Directors receipt of Parent from withdrawing or modifying its recommendation referred to in Section 2.09 if there exists Shareholder Approval, the Parent Board receives a Parent Acquisition Transaction and Proposal that the Parent Board of Directors of determines in good faith constitutes a Parent Superior Proposal, the CompanyParent Board may (i) effect a Parent Adverse Recommendation Change or (ii) authorize Parent to terminate this Agreement pursuant to Section 8.1(j) in order to enter into a definitive agreement providing for a Parent Superior Proposal, provided that such Parent Superior Proposal is conditioned on this Agreement being terminated, which condition remains after one Parent has used its reasonable best efforts to remove such condition, if (1A) business day prior written notice to the Company and consultation with and based upon the advice of independent legal counsel, Parent Board determines in good faith that any the failure to do take such action would reasonably be expected to be inconsistent with Parent’s directors’ fiduciary duties under applicable Law; (B) Parent has notified the Company in writing that it intends to effect a Parent Adverse Recommendation Change or terminate this Agreement; (C) if applicable, Parent has provided the Company a copy of the proposed definitive agreements between Parent and the person making such Parent Superior Proposal; (D) for a period of five (5) days following the notice delivered pursuant to clause (B) of this Section 5.4(d), Parent shall have discussed and negotiated in good faith and made Parent Representatives available to discuss and negotiate in good faith (in each case to the extent the Company desires to negotiate) with Company Representatives any proposed modifications to the terms and conditions of this Agreement so that the Parent Board determines in good faith that the failure to take such action would no longer reasonably be expected to be inconsistent with the Parent’s directors’ fiduciary duties under applicable Law (it being understood and agreed that any amendment to any material term or condition of any Parent Superior Proposal shall require a new notice and a new three (3) day negotiation period); and (E) no earlier than the end of such negotiation period, the Parent Board shall have determined in good faith, after considering the terms of any proposed amendment or modification to this Agreement, that (x) the Parent Acquisition Proposal that is the subject of the notice described in clause (B) above still constitutes a Parent Superior Proposal and (y) the failure to take such action would still reasonably be expected to be inconsistent with the Parent’s directors’ fiduciary duties under applicable Law.
(e) Other than in connection with a Parent Superior Proposal (which shall be subject to Section 5.4(d) and shall not be subject to this Section 5.4(e)), prior to obtaining the Parent Shareholder Approval the Parent Board may take any action prohibited by clause (i) of Directors Section 5.4(c), but only in response to a Parent Intervening Event and only if (i) the Parent Board determines in good faith that the failure to take such action would reasonably be expected to be inconsistent with the Parent directors’ fiduciary duties under applicable Law; (ii) Parent has notified the Company in writing that it intends to effect a Parent Adverse Recommendation Change due to the occurrence of a Parent Intervening Event (which notice shall specify the Parent Intervening Event in reasonable detail); (iii) for a period of five (5) days following the notice delivered pursuant to stockholders clause (ii) of this Section 5.4(e), Parent shall have discussed and negotiated in good faith, and shall have made Parent Representatives available to discuss and negotiate in good faith (in each case to the extent the Company desires to negotiate), with Company Representatives any proposed modifications to the terms and conditions of this Agreement so that the failure to take such action would no longer reasonably be expected to be inconsistent with the Parent directors’ fiduciary duties under applicable Law (it being understood and agreed that any material change to the facts and circumstances relating to the Parent Intervening Event shall require a new notice and a new three (3) day negotiation period; and (iv) no earlier than the end of the Companynegotiation period, the Parent Board shall have determined in good faith, after considering the terms of any proposed amendment or modification to this Agreement, that the failure to take such action would still reasonably be expected to be inconsistent with the Parent directors’ fiduciary duties under applicable Law.
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