No Solicitation by the Company; Company Board Recommendation. (a) The Company shall not, and shall cause its Affiliates and its and their respective directors, officers and employees and each of its and their respective investment bankers, accountants, attorneys and other advisors, agents or representatives (collectively, “Representatives”) not to, (i) directly or indirectly solicit, initiate or knowingly encourage, induce or facilitate any Company Takeover Proposal or any inquiry, discussion or proposal that may reasonably be expected to lead to a Company Takeover Proposal, (ii) directly or indirectly participate in any discussions or negotiations with any Person regarding, or furnish to any Person any information with respect to, or cooperate in any way with any Person (whether or not a Person making a Company Takeover Proposal) with respect to, any Company Takeover Proposal or any inquiry or proposal that may reasonably be expected to lead to a Company Takeover Proposal or (iii) waive, terminate, modify, amend, release or assign any provisions of any confidentiality or standstill agreement (or similar agreement) to which it is a party or fail to enforce, to the fullest extent permitted under applicable Law, the provisions of any such agreement, including by obtaining an injunction to prevent any breach of such agreements and to enforce specifically the terms and provisions thereof in any court having jurisdiction. The Company shall, and shall cause its Affiliates and its and their respective Representatives to, immediately cease and cause to be terminated all existing solicitation, discussions or negotiations with any Person conducted heretofore with respect to any Company Takeover Proposal, or any inquiry or proposal that may reasonably be expected to lead to a Company Takeover Proposal, request the prompt return or destruction of all confidential information previously furnished in connection therewith and immediately terminate all physical and electronic dataroom access previously granted to any such Person or its Representatives. (b) Notwithstanding the foregoing, if at any time prior to obtaining the Company Shareholder Approval, the Company or any of its Representatives receives a bona fide oral or written Company Takeover Proposal, which Company Takeover Proposal did not result from any breach of this Section 5.02, (i) the Company and its Representatives may contact such Person making the Company Takeover Proposal or its Representatives to request that any bona fide Company Takeover Proposal made orally be made in writing and (ii) in response to a bona fide written Company Takeover Proposal if the Company Board determines in good faith (after consultation with its outside counsel and financial advisor) that the failure to take the following actions would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, and that such Company Takeover Proposal constitutes or is reasonably likely to lead to a Superior Company Proposal, the Company may (and may authorize and permit its Affiliates and its and their Representatives to), subject to compliance with Section 5.02(e), (A) enter into an Acceptable Confidentiality Agreement with the Person making the Company Takeover Proposal and furnish information pursuant to an Acceptable Confidentiality Agreement (including non-public information and data) with respect to the Company and the Company Subsidiaries to the Person making such Company Takeover Proposal (and its Representatives) (provided that all such information has previously been provided to Parent or is provided to Parent prior to or substantially concurrent with the time it is provided to such Person), and (B) participate in discussions regarding the terms of such Company Takeover Proposal and the negotiation of such terms with, and only with, the Person making such Company Takeover Proposal (and such Person’s Representatives). Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 5.02 by any Representative of the Company or any of its Affiliates shall constitute a breach of this Section 5.02 by the Company. (c) Except as set forth below, neither the Company Board nor any committee thereof shall (i) (A) withdraw or fail to make when required by this Agreement (or modify in any manner adverse to Parent), or propose or agree to withdraw or fail to make when required by this Agreement (or modify in any manner adverse to Parent), the Company Board Recommendation or (B) adopt, recommend or declare advisable, or propose or agree to adopt, recommend or declare advisable, any Company Takeover Proposal (any action described in this clause (i) being referred to as a “Company Adverse Recommendation Change”) or (ii) adopt, recommend or declare advisable, or propose or agree to adopt, recommend or declare advisable, or allow the Company or any of its Affiliates to execute or enter into, any confidentiality agreement (other than an Acceptable Confidentiality Agreement) letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, alliance agreement, partnership agreement or other similar agreement or arrangement (an “Acquisition Agreement”) constituting, or that may reasonably be expected to lead to, a Company Takeover Proposal. Notwithstanding the foregoing, at any time prior to obtaining the Company Shareholder Approval, the Company Board may (I) make a Company Adverse Recommendation Change or (II) cause the Company to enter into an Acquisition Agreement constituting or that may reasonably be expected to lead to a Company Takeover Proposal not obtained in violation of this Section 5.02 and terminate this Agreement pursuant to Section 8.01(c)(ii), in either case if the Company Board determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation), that (x) in the case of clause (I), where the Company Adverse Recommendation Change is made in response to an Intervening Event, or the consequences thereof, and the failure to take such action would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law and (y) in the case of (A) clause (I) where such Company Adverse Recommendation Change is made in response to a Company Takeover Proposal, or (B) clause (II), such Company Takeover Proposal constitutes a Superior Company Proposal; provided, however, that the Company shall not be entitled to make a Company Adverse Recommendation Change or take any action set forth in clause (II) unless (1) the Company has given Parent at least five Business Days’ prior written notice (a “Company Notice of Recommendation Change”) (it being understood and agreed that any amendment to any material term of any Superior Company Proposal shall require a new Company Notice of Recommendation Change and a new notice period (which shall be two Business Days instead of five Business Days)) advising Parent that the Company Board intends to take such action (which notice shall specify the identity of the party making such Superior Company Proposal and the material terms thereof and, in the case of an Intervening Event, specifying the details thereof), (2) the Company has negotiated, and has caused its Representatives to negotiate, in good faith with Parent during such notice period, to the extent Parent wishes to negotiate, to enable Parent to propose in writing a binding offer to effect revisions to the terms of this Agreement such that it would cause such Superior Company Proposal to no longer constitute a Superior Company Proposal or for such Intervening Event to no longer warrant a Company Adverse Recommendation Change, and (3) following the end of such notice period, the Company Board or any committee thereof shall have considered in good faith such binding offer or Intervening Event, and shall have determined that the Superior Company Proposal would continue to constitute a Superior Company Proposal if the revisions proposed in such binding offer were to be given effect or that such Intervening Event continues to warrant a Company Adverse Recommendation Change; and provided, further that any purported termination of this Agreement pursuant to this sentence shall be void and of no force and effect unless the termination is in accordance with Section 8.01 and, to the extent required under the terms of this Agreement, the Company pays or causes to be paid to Parent the applicable Company Termination Fee in accordance with Section 6.06 prior to or concurrently with such termination so long as Parent has provided the Company with wire instructions for such payment. (d) In addition to the obligations of the Company set forth in paragraphs (a) through (c) of this Section 5.02, the Company shall (i) promptly (and in any event within 24 hours of receipt thereof by an officer or director of the Company) advise Parent orally and in writing of any Company Takeover Proposal or any inquiry or proposal that may reasonably be expected to lead to a Company Takeover Proposal, the material terms and conditions of any such Company Takeover Proposal or inquiry or proposal (including any changes thereto) and the identity of the Person making any such Company Takeover Proposal or inquiry or proposal, (ii) keep Parent informed in all material respects on a reasonably current basis of the status and details (including any change to the terms thereof) of any Company Takeover Proposal, and (iii) provide to Parent as soon as practicable after receipt or delivery thereof copies of all correspondence and other written and electronic material exchanged between the Company or any of the Company Subsidiaries and any Person that describes any of the material terms or conditions of any Company Takeover Proposal. (e) Nothing contained in this Section 5.02 shall prohibit the Company from (i) issuing a “stop-look-and-listen communication” pursuant to Rule 14d-9(f) promulgated under the Exchange Act or taking and disclosing to its shareholders positions required by Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act, in each case after the commencement of a tender offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act), (ii) issuing a statement in connection with a Company Takeover Proposal that does not involve the commencement of a tender offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act), so long as the statement includes no more information than would be required for a “stop-look-and-listen communication” under Rule 14d-9(f) promulgated under the Exchange Act if such provision was applicable, or (iii) making any disclosure to the shareholders of the Company if, in the good faith judgment of the Company Board (after consultation with outside counsel) failure to so disclose would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law; provided, however, that in no event shall the Company or the Company Board or any committee thereof take, or agree or resolve to take, any action prohibited by Section 5.02(c). (f) For purposes of this Agreement:

Appears in 4 contracts

Samples: Merger Agreement (Ares Management LLC), Merger Agreement (Cincinnati Bell Inc), Merger Agreement (Cincinnati Bell Inc)

No Solicitation by the Company; Company Board Recommendation. (a) The Company shall not, ~~and~~ nor shall ~~cause~~ it authorize or permit any of its Affiliates ~~and~~ or any of its ~~and~~ or their respective directors, officers ~~and~~ or employees ~~and each~~ or any of its ~~and~~ or their respective investment bankers, accountants, attorneys ~~and~~ or other advisors, agents or representatives (collectively, “Representatives”) ~~not~~ to, (i) directly or indirectly solicit, initiate or knowingly encourage, induce or facilitate any Company Takeover Proposal or any ~~inquiry, discussion~~ inquiry or proposal that may reasonably be expected to lead to a Company Takeover ~~Proposal,~~ Proposal or (ii) directly or indirectly participate in any discussions or negotiations with any Person regarding, or furnish to any Person any information with respect to, or cooperate in any way with any Person (whether or not a Person making a Company Takeover Proposal) with respect to, any Company Takeover Proposal or any inquiry or proposal that may reasonably be expected to lead to a Company Takeover Proposal or (iii) waive, terminate, modify, amend, release or assign any provisions of any confidentiality or standstill agreement (or similar agreement) to which it is a party or fail to enforce, to the fullest extent permitted under applicable Law, the provisions of any such agreement, including by obtaining an injunction to prevent any breach of such agreements and to enforce specifically the terms and provisions thereof in any court having jurisdictionProposal. The Company shall, and shall cause its Affiliates and its and their respective Representatives to, immediately cease and cause to be terminated all existing solicitation, discussions or negotiations with any Person conducted heretofore with respect to any Company Takeover Proposal, or any inquiry or proposal that may reasonably be expected to lead to a Company Takeover Proposal, request the prompt return or destruction of all confidential information previously furnished in connection therewith and immediately terminate all physical and electronic dataroom access previously granted to any such Person or its Representatives~~. (b)~~ . Notwithstanding the foregoing, if at any time prior to obtaining the Company ~~Shareholder~~ Stockholder Approval, the Company or any of its Representatives receives ~~a bona fide~~ an oral or written Company Takeover Proposal, which Company Takeover Proposal did not result from any breach of this Section ~~5.02~~5.03, (i) the Company and its Representatives may contact such Person making the Company Takeover Proposal or its Representatives to request that any ~~bona fide~~ Company Takeover Proposal made orally be made in writing and (ii) in response to a ~~bona fide~~ written Company Takeover Proposal if that the Company Board determines in good faith (after consultation with ~~its~~ outside counsel and a financial ~~advisor~~advisor of nationally recognized reputation) ~~that the failure to take the following actions would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, and that such Company Takeover Proposal~~ constitutes or is reasonably likely to lead to a Superior Company Proposal, the Company may (and may authorize and permit its Affiliates and its and their Representatives to), subject to compliance with Section ~~5.02(e~~5.03(c), (A) ~~enter into an Acceptable Confidentiality Agreement with the Person making the Company Takeover Proposal and~~ furnish information ~~pursuant to an Acceptable Confidentiality Agreement~~ (including non-public information and data) with respect to the Company and the Company Subsidiaries to the Person making such Company Takeover Proposal (and its Representatives) (provided that all such information has previously been provided to Parent or is provided to Parent prior to or substantially concurrent with the time it is provided to such Person) pursuant to a customary confidentiality agreement not less restrictive of such Person than the Confidentiality Agreement (other than with respect to standstill provisions), and (B) participate in discussions regarding the terms of such Company Takeover Proposal and the negotiation of such terms with, and only with, the Person making such Company Takeover Proposal (and such Person’s Representatives). Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section ~~5.02~~ 5.03(a) by any Representative of the Company or any of its Affiliates shall constitute a breach of this Section ~~5.02~~ 5.03(a) by the Company. (cb) Except as set forth below, neither the Company Board nor any committee thereof shall (i) (A) withdraw ~~or fail to make when required by this Agreement~~ (or modify in any manner adverse to Parent), or propose ~~or agree~~ publicly to withdraw ~~or fail to make when required by this Agreement~~ (or modify in any manner adverse to Parent), the approval, recommendation or declaration of advisability by the Company Board ~~Recommendation~~ or any such committee thereof with respect to this Agreement or the Merger or (B) adopt, recommend or declare advisable, or propose ~~or agree~~ publicly to adopt, recommend or declare advisable, any Company Takeover Proposal (any action ~~described~~ in this clause (i) being referred to as a “Company Adverse Recommendation Change”) or (ii) adopt, recommend or declare advisable, or propose ~~or agree~~ publicly to adopt, recommend or declare advisable, or allow the Company or any of its Affiliates to execute or enter into, any ~~confidentiality agreement (other than an Acceptable Confidentiality Agreement)~~ letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, alliance agreement, partnership agreement or other similar agreement or arrangement (an “Acquisition Agreement”) ~~constituting,~~ constituting or ~~that may reasonably be expected~~ related to ~~lead to, a~~ any Company Takeover Proposal. Notwithstanding the foregoing, at any time prior to obtaining the Company ~~Shareholder~~ Stockholder Approval, the Company Board may ~~(I)~~ make a Company Adverse Recommendation Change ~~or (II) cause~~ if the Company ~~to enter into an Acquisition Agreement constituting~~ receives a Superior Company Proposal or ~~that may reasonably be expected to lead to a Company Takeover Proposal not obtained in violation of this Section 5.02 and terminate this Agreement pursuant to Section 8.01(c)(ii), in either case if~~ the Company Board determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation), ) that ~~(x) in the case of clause (I), where the Company Adverse Recommendation Change is made in response to an Intervening Event, or the consequences thereof, and~~ the failure to ~~take such action~~ do so would reasonably be expected to be inconsistent with ~~the directors’~~ its fiduciary duties under applicable Law and (y) in the case of (A) clause (I) where such Company Adverse Recommendation Change is made in response to a Company Takeover Proposal, or (B) clause (II), such Company Takeover Proposal constitutes a Superior Company ProposalLaw; provided, however, that the Company shall not be entitled to exercise its right to make a Company Adverse Recommendation Change ~~or take any action set forth in clause (II) unless (1)~~ until after the ~~Company has given Parent at least five~~ third Business ~~Days’ prior~~ Day following Parent’s receipt of written notice (a “Company Notice of Recommendation Change”) from the Company advising Parent that the Company Board intends to take such action and specifying the reasons therefor, including in the case of a Superior Company Proposal the terms and conditions of such Superior Company Proposal that is the basis of the proposed action by the Company Board (it being understood and agreed that any amendment to any material term of ~~any~~ such Superior Company Proposal shall require a new Company Notice of Recommendation Change and a new notice period (which shall be two Business Days instead of ~~five~~ three Business Days)~~) advising Parent that~~ ). In determining whether to make a Company Adverse Recommendation Change, the Company Board ~~intends to~~ shall take such action (which notice shall specify the identity of the party making such Superior Company Proposal and the material terms thereof and, in the case of an Intervening Event, specifying the details thereof), (2) the Company has negotiated, and has caused its Representatives to negotiate, in good faith with Parent during such notice period, to the extent Parent wishes to negotiate, to enable Parent to propose in writing a binding offer to effect revisions into account any changes to the terms of this Agreement ~~such that it would cause such Superior Company Proposal~~ proposed by Parent in response to ~~no longer constitute a Superior Company Proposal or for such Intervening Event to no longer warrant~~ a Company ~~Adverse~~ Notice of Recommendation Change, and (3) following the end of such notice period, the Company Board or any committee thereof shall have considered in good faith such binding offer or Intervening Event, and shall have determined that the Superior Company Proposal would continue to constitute a Superior Company Proposal if the revisions proposed in such binding offer were to be given effect or that such Intervening Event continues to warrant a Company Adverse Recommendation Change; and provided, further that any purported termination of this Agreement pursuant to this sentence shall be void and of no force and effect unless the termination is in accordance with Section 8.01 and, to the extent required under the terms of this Agreement, the Company pays or causes to be paid to Parent the applicable Company Termination Fee in accordance with Section 6.06 prior to or concurrently with such termination so long as Parent has provided the Company with wire instructions for such payment. (dc) In addition to the obligations of the Company set forth in paragraphs (a) ~~through~~ and (cb) of this Section ~~5.02~~5.03, the Company shall ~~(i)~~ promptly (and in any event within 24 48 hours of knowledge of receipt thereof by an officer or director of the Company) advise Parent orally and in writing of any Company Takeover Proposal or any inquiry or proposal that may reasonably be expected to lead to a Company Takeover Proposal, the material terms and conditions of any such Company Takeover Proposal or inquiry or proposal (including any changes thereto) and the identity of the Person making any such Company Takeover Proposal or inquiry or proposal, . The Company shall (iii) keep Parent informed in all material respects on a reasonably current basis of the status and details (including any change to the terms thereof) of any Company Takeover Proposal, and (~~iii~~ii) provide to Parent as soon as practicable after receipt or delivery thereof copies of all correspondence and other written and electronic material exchanged between the Company or any of the Company Subsidiaries and any Person that describes any of the material terms or conditions of any Company Takeover Proposal. (ed) Nothing contained in this Section ~~5.02~~ 5.03 shall prohibit the Company from (i) issuing a “stop-look-and-listen communication” pursuant to Rule 14d-9(f) promulgated under the Exchange Act or taking and disclosing to its ~~shareholders~~ stockholders positions required by Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act, in each case after the commencement of a tender offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act), (ii) issuing a statement in connection with a Company Takeover Proposal that does not involve the commencement of a tender offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act), so long as the statement includes no more information than would be required for a “stop-look-and-listen communication” under Rule 14d-9(f) promulgated under the Exchange Act if such provision was applicable, or (iii) making any disclosure to the ~~shareholders~~ stockholders of the Company if, in the good faith judgment of the Company Board (after consultation with outside counsel) failure to so disclose would reasonably be expected to be inconsistent with its ~~fiduciary~~ duties under applicable Law; provided, however, that in no event shall the Company or the Company Board or any committee thereof take, or agree or resolve to take, any action prohibited by Section ~~5.02(c~~5.03(b). (fe) For purposes of this Agreement:

Appears in 3 contracts

Samples: Merger Agreement (Cincinnati Bell Inc), Merger Agreement (Hawaiian Telcom Holdco, Inc.), Merger Agreement (Cincinnati Bell Inc)

No Solicitation by the Company; Company Board Recommendation. (a) The Company shall not, and shall ~~cause~~ not authorize or permit any of its Affiliates and its and their respective ~~directors~~officers, ~~officers~~ directors and employees to, and ~~each of~~ shall use reasonable best efforts to cause, and shall cause its Affiliates to use reasonable best efforts to cause, its and their respective agents, financial advisors, investment bankers, ~~accountants~~attorneys, ~~attorneys~~ accountants and other ~~advisors, agents or~~ representatives (collectively, “Representatives”) not to, (i) directly or indirectly solicit, ~~initiate or~~ initiate, knowingly encourage, induce or knowingly facilitate any Company Takeover Proposal or any ~~inquiry, discussion~~ inquiry or proposal that ~~may~~ could reasonably be expected to lead to a Company Takeover ~~Proposal,~~ Proposal or (ii) directly or indirectly participate in any discussions or negotiations with any Person (other than the Company’s Representatives) regarding, or furnish to any ~~Person~~ Person, any information with respect to, or cooperate in any way with any Person (whether or not a such Person is making a Company Takeover Proposal) with respect ~~to,~~ to any Company Takeover Proposal or any inquiry or proposal that may reasonably be expected to lead to a Company Takeover Proposal or (iii) waive, terminate, modify, amend, release or assign any provisions of any confidentiality or standstill agreement (or similar agreement) to which it is a party or fail to enforce, to the fullest extent permitted under applicable Law, the provisions of any such agreement, including by obtaining an injunction to prevent any breach of such agreements and to enforce specifically the terms and provisions thereof in any court having jurisdictionProposal. The Company shall, and shall cause its Affiliates and its and their respective officers, directors and employees and its and their respective Representatives to, immediately cease and cause to be terminated all existing ~~solicitation~~discussions, ~~discussions~~ negotiations, ongoing solicitation or ~~negotiations~~ knowing encouragement with or of any Person conducted heretofore with respect to any Company Takeover Proposal, or any inquiry or proposal that may reasonably be expected to lead to a Company Takeover Proposal, ~~request~~ instruct (to the extent it has contractual authority to do so and has not already done so prior to the date of this Agreement and if otherwise, request) the prompt return or destruction of all confidential information previously furnished ~~in connection therewith~~ and immediately terminate all physical and electronic dataroom access previously granted to any such Person or its Representatives~~. (b)~~ . Notwithstanding the foregoing, if at any time prior to obtaining the Company Shareholder Approval, the Company or any of its Representatives receives a bona fide oral or written Company Takeover Proposal, which Company Takeover Proposal did not result from any breach of this Section 5.02, (i) the Company and its Representatives may contact such Person making the Company Takeover Proposal or its Representatives to request that any bona fide Company Takeover Proposal made orally be made in writing and (ii) in response to a bona ~~fide~~ fide, written Company Takeover Proposal if that the Company Board determines in good faith (after consultation with ~~its~~ outside legal counsel and a financial ~~advisor~~advisor of nationally recognized reputation) ~~that the failure to take the following actions would~~ constitutes or could reasonably be expected ~~to be inconsistent with its fiduciary duties under applicable Law, and that such Company Takeover Proposal constitutes or is reasonably likely~~ to lead to a Superior Company Proposal, and which Company Takeover Proposal was not solicited by the ~~Company may (and may authorize and permit~~ Company, its Affiliates or Representatives after the date of this Agreement and did not otherwise result from a breach of this Section 5.03(a), the Company, and its ~~and their~~ Representatives ~~to)~~at the request of the Company, may, subject to compliance with Section ~~5.02(e~~5.03(c), (A) ~~enter into an Acceptable Confidentiality Agreement with the Person making the Company Takeover Proposal and~~ furnish information ~~pursuant to an Acceptable Confidentiality Agreement (including non-public information and data)~~ with respect to the Company and the Company Subsidiaries to the Person making such Company Takeover Proposal (and its Representatives) (provided that all such information has previously been provided to Parent or is provided to Parent prior to or ~~substantially concurrent~~ concurrently with the ~~time it is provided~~ provision of such information to such Person), ) pursuant to a customary confidentiality agreement not less restrictive of such Person than the Confidentiality Agreement is of Parent and (B) participate in discussions regarding the terms of such Company Takeover Proposal and the negotiation of such terms with, and only with, the Person making such Company Takeover Proposal (and such Person’s Representatives). Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section ~~5.02~~ 5.03(a) by any Representative of the Company or any of its Affiliates shall constitute a breach of this Section ~~5.02~~ 5.03(a) by the Company. (cb) Except as set forth ~~below~~in Section 5.03(c) and Section 5.03(d), neither the Company Board nor any committee thereof shall (i) (A) ~~withdraw or fail to make when required by this Agreement (~~withdraw, change, qualify, withhold or modify in any manner adverse to Parent), or propose ~~or agree~~ publicly to ~~withdraw or fail to make when required by this Agreement (~~withdraw, change, qualify, withhold or modify in any manner adverse to Parent), the approval or recommendation by the Company Board ~~Recommendation~~ or any such committee thereof with respect to this Agreement or the transactions contemplated hereby, including the Integrated Mergers, (B) adopt, ~~recommend~~ approve or ~~declare advisable~~recommend, or propose ~~or agree~~ publicly to adopt, ~~recommend~~ approve or ~~declare advisable~~recommend, any Company Takeover ~~Proposal~~ Proposal, (C) fail to include in the Proxy Statement the recommendation by the Company Board or any committee thereof with respect to this Agreement and the Integrated Mergers or (D) take any formal action or make any recommendation or public statement in connection with a tender offer or exchange offer (other than a recommendation against such offer or a customary “stop, look and listen” communication of the type contemplated by Rule 14d-9(f) under the Exchange Act, in each case that includes a reaffirmation of the recommendation by the Company Board or any committee thereof with respect to this Agreement and the Integrated Mergers) (any action ~~described~~ in this clause (i) being referred to as a “Company Adverse Recommendation Change”) or (ii) ~~adopt~~authorize, ~~recommend~~ permit, approve or ~~declare advisable~~recommend, or propose publicly to authorize, permit, approve or ~~agree to adopt, recommend or declare advisable~~recommend, or allow the Company or any of its Affiliates to execute or enter into, any ~~confidentiality agreement (other than an Acceptable Confidentiality Agreement)~~ letter of intent, memorandum of understanding, agreement in principle, ~~merger agreement~~term sheet, ~~acquisition agreement, option agreement, joint venture agreement, alliance agreement, partnership~~ agreement or commitment (other ~~similar~~ than a confidentiality agreement referred to in Section 5.03(a)) constituting or ~~arrangement (an “Acquisition Agreement”) constituting~~relating to, or that ~~may~~ is intended to or would reasonably be expected to lead to, a any Company Takeover Proposal~~. Notwithstanding~~ , or requiring, or reasonably expected to cause, the ~~foregoing~~Company to abandon, at terminate, delay or fail to consummate, or that would otherwise impede, interfere with or be inconsistent with, the transactions contemplated hereby, including the Integrated Mergers, or requiring, or reasonably expected to cause, the Company to fail to comply with this Agreement (a “Company Acquisition Agreement”). (c) At any time prior to obtaining the Company Shareholder Approval, the Company Board may (I) make a Company Adverse Recommendation Change or (II) cause the Company to enter into an Acquisition Agreement constituting or that may reasonably be expected to lead to a Company Takeover Proposal not obtained in violation of this Section 5.02 and terminate this Agreement pursuant to Section ~~8.01(c)(ii~~8.01(c) if the Company receives a bona fide written Company Takeover Proposal that the Company Board determines in good faith (after consultation with outside legal counsel and a financial advisor of nationally recognized reputation) constitutes a Superior Company Proposal, and which Superior Company Proposal was not solicited by the Company, its Affiliates or Representatives after the date of this Agreement and did not otherwise result from a breach of this Section 5.03; provided, however, that the Company Board may not terminate this Agreement pursuant to Section 8.01(c) unless (i) the Company Board has provided prior written notice to Parent (a “Company Notice”) that it is prepared to terminate this Agreement pursuant to Section 8.01(c) in response to a Superior Company Proposal, which notice shall specify the material terms and conditions of any such Superior Company Proposal and attach the most current draft of any Company Acquisition Agreement relating to the transaction that constitutes such Superior Company Proposal and a copy of any financing commitments related thereto, (ii) the Company has negotiated, and caused its Representatives to negotiate, in good faith with Parent during a period of four (4) Business Days after the receipt of such Company Notice, to the extent Parent wishes to negotiate (it being understood and agreed that any amendment to the financial terms or any other material term of a Superior Company Proposal shall require a new Company Notice and a new four (4) Business Day period), to enable Parent to propose changes to this Agreement that would, in ~~either~~ the reasonable good faith judgment of the Company Board (after consultation with a financial advisor of nationally recognized reputation and outside legal counsel), cause the offer previously constituting a Superior Company Proposal to no longer constitute a Superior Company Proposal, and (iii) at the end of such four (4) Business Day period and taking into account any changes to the terms of this Agreement proposed by Parent, the Company Board determines in good faith (after consultation with a financial advisor of nationally recognized reputation and outside legal counsel) that the failure to terminate this Agreement pursuant to Section 8.01(c) as a result of such Superior Company Proposal would be inconsistent with the Company Board’s fiduciary duties to the shareholders of the Company under applicable Law. The Company agrees that, during the four (4) Business Day period prior to terminating this Agreement pursuant to Section 8.01(c) in response to a Superior Company Proposal, if requested by Parent, the Company and its Representatives shall negotiate in good faith with Parent and its Representatives regarding any revisions to the terms of the transaction contemplated by this Agreement proposed by Parent. In determining whether to terminate this Agreement pursuant to Section 8.01(c), the Company Board shall take into account all written or oral information, opinions or analyses submitted by or on behalf of Parent, and any changes to the terms of this Agreement proposed by Parent in response to such a Company Notice. (d) At any time prior to obtaining the Company Shareholder Approval, provided that the Company is not in breach of its obligations under this Section 5.03, the Company Board may effect a Company Adverse Recommendation Change (x) as a result of the occurrence of a Company Intervening Event or (y) in response to a Superior Company Proposal, in each case if the Company Board determines in good faith (after consultation with ~~outside counsel and~~ a financial advisor of nationally recognized ~~reputation), that~~ reputation and outside legal counsel and after taking into account any changes to the terms of this Agreement proposed by Parent during the four (x4) Business Day period referred to in ~~the case of~~ clause (~~I), where~~ ii) below) that the failure to effect a Company Adverse Recommendation Change ~~is made~~ as a result of the occurrence of such Company Intervening Event or in response to ~~an Intervening Event~~such Superior Company Proposal, or as the ~~consequences thereof~~case may be, ~~and the failure to take such action~~ would ~~reasonably be expected to~~ be inconsistent with the ~~directors’~~ Company Board’s fiduciary duties to the shareholders of the Company under applicable Law and (y) in the case of (A) clause (I) where such Company Adverse Recommendation Change is made in response to a Company Takeover Proposal, or (B) clause (II), such Company Takeover Proposal constitutes a Superior Company ProposalLaw; provided, however, that the Company ~~shall~~ Board may not ~~be entitled to make~~ effect a Company Adverse Recommendation Change ~~or take any action set forth in~~ under this clause (IId) unless (1i) the Company Board has ~~given Parent at least five~~ provided four (4) Business ~~Days’~~ Days prior written notice (to Parent that it is prepared to effect a “Company ~~Notice of~~ Adverse Recommendation ~~Change”) (it being understood and agreed that any amendment~~ Change in response to ~~any material term of any~~ a Company Intervening Event or a Superior Company ~~Proposal shall require a new Company Notice~~ Proposal, which notice shall, in each case, include summaries of ~~Recommendation Change~~ the material facts, circumstances and ~~a new notice period (which shall be two Business Days instead of five Business Days)) advising Parent~~ other information that the Company Board ~~intends to take~~ considered in connection with the making of any such ~~action (which notice shall specify the identity~~ determination, together with reasonable documentary support and/or written analysis conducted by or on behalf of the ~~party making~~ Company Board in reaching such conclusion including, in the case of a Company Adverse Recommendation Change in response to a Superior Company Proposal, the material terms and conditions of any such Superior Company Proposal and the ~~material terms thereof and, in the case~~ most current draft of ~~an Intervening Event, specifying the details thereof)~~any Company Acquisition Agreement and a copy of any financing commitments related thereto, (2ii) during such four (4) Business Day period, if requested by Parent, the Company ~~has negotiated~~Board negotiates, and ~~has caused~~ causes its Representatives to negotiate, in good faith with Parent ~~during such notice period,~~ and its Representatives regarding any revisions to the ~~extent~~ terms of the transaction contemplated by this Agreement proposed by Parent ~~wishes to negotiate, to enable Parent to propose in writing a binding offer to effect revisions~~ and (iii) at the end of such four (4) Business Day period and taking into account any changes to the terms of this Agreement ~~such~~ proposed by Parent, the Company Board determines in good faith (after consultation with a financial advisor of nationally recognized reputation and outside legal counsel) that ~~it would cause such Superior Company Proposal~~ the failure to ~~no longer constitute a Superior Company Proposal or for such Intervening Event to no longer warrant~~ make a Company Adverse Recommendation ~~Change, and (3~~Change pursuant to this Section 5.03(d) ~~following the end of~~ in response to such ~~notice period, the~~ Company ~~Board~~ Intervening Event or ~~any committee thereof shall have considered in good faith such binding offer or Intervening Event, and shall have determined that the~~ Superior Company Proposal would ~~continue to constitute a Superior~~ be inconsistent with the Company Proposal if the revisions proposed in such binding offer were to be given effect or that such Intervening Event continues to warrant a Company Adverse Recommendation Change; and provided, further that any purported termination of this Agreement pursuant to this sentence shall be void and of no force and effect unless the termination is in accordance with Section 8.01 and, Board’s fiduciary duties to the ~~extent required under the terms~~ shareholders of ~~this Agreement,~~ the Company ~~pays or causes to be paid to Parent the~~ under applicable ~~Company Termination Fee in accordance with Section 6.06 prior to or concurrently with such termination so long as Parent has provided the Company with wire instructions for such payment~~Law. (de) In addition to the obligations of the Company set forth in paragraphs (a) ~~through~~ and (cb) of this Section ~~5.02~~5.03, the Company shall ~~(i)~~ promptly advise (and in any event within ~~24 hours of receipt thereof by an officer or director of the Company~~48 hours) ~~advise~~ Parent orally and in writing of (i) any ~~Company Takeover Proposal or any inquiry or proposal that may reasonably be expected to lead to a~~ Company Takeover Proposal, the material terms and conditions of any such Company Takeover Proposal ~~or inquiry or proposal~~ (including any changes thereto) and the identity of the Person making any such Company Takeover Proposal, and shall promptly (and in any event within forty-eight (48) hours after receipt) provide copies to Parent of any written proposals, indications of interest and/or draft Company Acquisition Agreements relating to any such Company Takeover Proposal ~~or inquiry or proposal,~~ and (ii) any Company Intervening Event or any facts and circumstances that could reasonably be expected to lead to a Company Intervening Event. The Company shall, in the case of a Company Takeover Proposal, keep Parent informed in all material respects on a ~~reasonably~~ current basis of the terms and status ~~and details~~ (including any change to the terms ~~thereof~~of, and any material developments with respect to) of any Company Takeover Proposal, including by promptly (and in any event within forty-eight (~~iii~~48) ~~provide~~ hours after receipt) providing to Parent ~~as soon as practicable after receipt or delivery thereof~~ copies of any additional or revised written proposals, indications of interest and/or draft Company Acquisition Agreements relating to any such Company Takeover Proposal and, in the case of a Company Intervening Event, keep Parent informed in all ~~correspondence~~ material respects on a current basis of the facts and ~~other written~~ circumstances related to such Company Intervening Event (except that this obligation shall not apply to any Company Intervening Event to the extent related solely to Parent or any of its Subsidiaries and ~~electronic material exchanged between~~ not to the Company or any of the Company Subsidiaries), together with reasonable documentary support and/or any written analysis related thereto. The Company agrees that it and the Company Subsidiaries ~~and~~ will not enter into any agreement with any Person ~~that describes~~ subsequent to the date of this Agreement which prohibits the Company from providing any ~~of the material terms or conditions of any Company Takeover Proposal~~information to Parent in accordance with this Section 5.03(e). (ef) Nothing contained in this Section ~~5.02~~ 5.03 shall prohibit the Company from (i) ~~issuing a “stop-look-and-listen communication” pursuant to~~ complying with Rule ~~14d-9(f)~~ 14d-9 and Rule 14e-2 promulgated under the Exchange Act or taking and disclosing to its shareholders positions required by Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act, in each case after the commencement of a tender offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act), (ii) issuing a statement in connection with a Company Takeover Proposal that does not involve the commencement of a tender offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act), so long as the statement includes no more information than would be required for a “stop-look-and-listen communication” under Rule 14d-9(f) promulgated under the Exchange Act if such provision was applicable, or (iii) making any disclosure to the shareholders of the Company if, in the good faith judgment of the Company Board (after consultation with outside legal counsel) failure to so disclose would ~~reasonably be expected to~~ be inconsistent with its ~~fiduciary duties~~ obligations under applicable Law; provided, however, that in no event shall the Company or the Company Board or any committee thereof take, or agree or resolve to take, any action prohibited by Section ~~5.02(c)~~5.03; provided, further, that any such position or disclosure (other than any “stop, look and listen” communication that includes a reaffirmation of the recommendation by the Company Board or any committee thereof with respect to this Agreement and the Integrated Mergers) shall be deemed a Company Adverse Recommendation Change unless the Company Board expressly and concurrently reaffirms the recommendation by the Company Board or any committee thereof with respect to this Agreement and the Integrated Mergers. (fg) For purposes of this Agreement:

Appears in 2 contracts

Samples: Merger Agreement (Nextera Energy Inc), Merger Agreement (Hawaiian Electric Co Inc)

No Solicitation by the Company; Company Board Recommendation. (a) The Company shall not, ~~and~~ nor shall ~~cause~~ it authorize or permit any of its Affiliates ~~and~~ or any of its and their respective directors, officers ~~and~~ or employees ~~and each~~ or any of ~~its and~~ their respective investment bankers, accountants, attorneys ~~and~~ or other advisors, agents or representatives (collectively, “Representatives”) ~~not~~ to, (i) directly or indirectly ~~solicit~~solicit or initiate, ~~initiate~~ or knowingly encourage, induce or facilitate any ~~Company~~ Takeover Proposal or any ~~inquiry, discussion~~ inquiry or proposal that may reasonably be expected to lead to a ~~Company~~ Takeover ~~Proposal,~~ Proposal or (ii) directly or indirectly participate in any discussions or negotiations with any Person regarding, or furnish to any Person any information with respect to, or cooperate in any way with any Person (whether or not a Person making a ~~Company~~ Takeover Proposal) with respect ~~to,~~ to any ~~Company~~ Takeover Proposal or any inquiry or proposal that may reasonably be expected to lead to a ~~Company~~ Takeover Proposal or (iii) waive, terminate, modify, amend, release or assign any provisions of any confidentiality or standstill agreement (or similar agreement) to which it is a party or fail to enforce, to the fullest extent permitted under applicable Law, the provisions of any such agreement, including by obtaining an injunction to prevent any breach of such agreements and to enforce specifically the terms and provisions thereof in any court having jurisdictionProposal. The Company shall, and shall cause its Affiliates and its and their respective Representatives to, immediately cease and cause to be terminated all existing ~~solicitation,~~ discussions or negotiations with any Person conducted heretofore with respect to any ~~Company~~ Takeover Proposal, or any inquiry or proposal that may reasonably be expected to lead to a ~~Company~~ Takeover Proposal, request the prompt return or destruction of all confidential information previously furnished ~~in connection therewith~~ and immediately terminate all physical and electronic ~~dataroom~~ data room access previously granted to any such Person or its Representatives~~. (b)~~ . Notwithstanding the foregoing, if at any time prior to obtaining the Company ~~Shareholder~~ Stockholder Approval, the Company or any of its Representatives receives a bona fide oral or written Company Takeover Proposal, which Company Takeover Proposal did not result from any breach of this Section 5.02, (i) the Company and its Representatives may contact such Person making the Company Takeover Proposal or its Representatives to request that any bona fide Company Takeover Proposal made orally be made in writing and (ii) in response to a bona fide written ~~Company~~ Takeover Proposal if that the Company Board determines in good faith (after consultation with ~~its~~ outside counsel and a financial ~~advisor~~advisor of nationally recognized reputation) ~~that the failure to take the following actions would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, and that such Company Takeover Proposal~~ constitutes or is reasonably likely to lead to a Superior Proposal, and which Takeover Proposal was not solicited after the date of this Agreement and was made after the date of this Agreement and prior to the Company ~~Proposal~~Stockholders Meeting and did not otherwise result from a breach of this Section 5.02(a), the Company ~~may (and may authorize and permit its Affiliates and its and their Representatives to)~~may, subject to compliance with Section ~~5.02(e~~5.02(c), (Ax) ~~enter into an Acceptable Confidentiality Agreement with the Person making the Company Takeover Proposal and~~ furnish information ~~pursuant to an Acceptable Confidentiality Agreement (including non-public information and data)~~ with respect to the Company and the Company Subsidiaries to the Person making such ~~Company~~ Takeover Proposal (and its ~~Representatives~~Representatives and any financing sources) (provided that all such information has previously been provided to Parent or is provided to Parent prior to or substantially concurrent with the time it is provided to such Person)) pursuant to a customary confidentiality agreement with the Person making such Takeover Proposal (or with one or more of its financing sources) not less restrictive of such Person as to the use of such information than the Confidentiality Agreement, and (By) participate in discussions regarding the terms of such ~~Company~~ Takeover Proposal and the negotiation of such terms with, and only with, the Person making such ~~Company~~ Takeover Proposal (and such Person’s ~~Representatives~~Representatives and any financing sources). Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section ~~5.02~~ 5.02(a) by any Representative of the Company or any of its Subsidiaries or Affiliates shall constitute a breach of this Section ~~5.02~~ 5.02(a) by the Company. (cb) Except as set forth below, neither the Company Board nor any committee thereof shall (i) (A) withdraw ~~or fail to make when required by this Agreement~~ (or modify in any manner adverse to Parent), or propose ~~or agree~~ publicly to withdraw ~~or fail to make when required by this Agreement~~ (or modify in any manner adverse to Parent), the approval, recommendation or declaration of advisability by the Company Board ~~Recommendation~~ or any such committee thereof with respect to this Agreement or (B) ~~adopt~~approve, recommend or declare advisable, or propose ~~or agree~~ publicly to ~~adopt~~approve, recommend or declare advisable, any ~~Company~~ Takeover Proposal (any action ~~described~~ in this clause (i) being referred to as a an “~~Company~~ Adverse Recommendation Change”) or (ii) ~~adopt~~approve, recommend or declare advisable, or propose ~~or agree~~ publicly to ~~adopt~~approve, recommend or declare advisable, or allow the Company or any of its Affiliates to execute or enter into, any ~~confidentiality agreement (other than an Acceptable Confidentiality Agreement)~~ letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, alliance agreement, partnership agreement or other ~~similar~~ agreement or arrangement ~~(an “Acquisition Agreement”) constituting~~constituting or related to, or that ~~may~~ is intended to or would reasonably be expected to lead to, ~~a Company~~ any Takeover Proposal, or requiring, or reasonably expected to cause, the Company to abandon, terminate, delay or fail to consummate, or that would otherwise impede, interfere with or be inconsistent with, the Merger or any of the other transactions contemplated by this Agreement, or requiring, or reasonably expected to cause, the Company to fail to comply with this Agreement (other than a confidentiality agreement referred to in Section 5.02(a)). Notwithstanding the foregoing, at any time prior to obtaining the Company ~~Shareholder~~ Stockholder Approval, the Company Board may ~~(I)~~ make ~~a Company~~ an Adverse Recommendation Change or (II) cause the Company to enter into an Acquisition Agreement constituting or that may reasonably be expected to lead to a Company Takeover Proposal not obtained in violation of this Section 5.02 and terminate this Agreement pursuant to Section 8.01(c)(ii), in either case if the Company Board determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation), ) that ~~(x) in the case of clause (I), where the Company Adverse Recommendation Change is made in response to an Intervening Event, or the consequences thereof, and~~ the failure to ~~take such action~~ do so would ~~reasonably be expected to~~ be inconsistent with ~~the directors’~~ its fiduciary duties under applicable Law and (y) in the case of (A) clause (I) where such Company Adverse Recommendation Change is made in response to a Company Takeover Proposal, or (B) clause (II), such Company Takeover Proposal constitutes a Superior Company ProposalLaw; provided, however, that the Company shall not be entitled to exercise its right to make ~~a Company~~ an Adverse Recommendation Change ~~or take any action set forth in clause (II) unless (1)~~ until after the ~~Company has given Parent at least five~~ fourth Business ~~Days’ prior~~ Day following Parent’s receipt of written notice (a “~~Company~~ Notice of Recommendation Change”) from the Company advising Parent that the Company Board intends to take such action and specifying the reasons therefor, including in the case of a Superior Proposal, the terms and conditions of any Superior Proposal that is the basis of the proposed action by the Company Board (it being understood and agreed that any amendment to any material term of ~~any~~ such Superior ~~Company~~ Proposal shall require a new ~~Company~~ Notice of Recommendation Change and a new ~~notice period (which shall be two Business Days instead of five Business Days~~four Business-Day period)~~) advising Parent that~~ . In determining whether to make an Adverse Recommendation Change, the Company Board ~~intends to~~ shall take such action (which notice shall specify the identity of the party making such Superior Company Proposal and the material terms thereof and, in the case of an Intervening Event, specifying the details thereof), (2) the Company has negotiated, and has caused its Representatives to negotiate, in good faith with Parent during such notice period, to the extent Parent wishes to negotiate, to enable Parent to propose in writing a binding offer to effect revisions into account any changes to the terms of this Agreement ~~such that it would cause such Superior Company Proposal~~ proposed by Parent in response to ~~no longer constitute~~ a ~~Superior Company Proposal~~ Notice of Recommendation Change or for such Intervening Event to no longer warrant a Company Adverse Recommendation Change, and (3) following the end of such notice period, the Company Board or any committee thereof shall have considered in good faith such binding offer or Intervening Event, and shall have determined that the Superior Company Proposal would continue to constitute a Superior Company Proposal if the revisions proposed in such binding offer were to be given effect or that such Intervening Event continues to warrant a Company Adverse Recommendation Change; and provided, further that any purported termination of this Agreement pursuant to this sentence shall be void and of no force and effect unless the termination is in accordance with Section 8.01 and, to the extent required under the terms of this Agreement, the Company pays or causes to be paid to Parent the applicable Company Termination Fee in accordance with Section 6.06 prior to or concurrently with such termination so long as Parent has provided the Company with wire instructions for such paymentotherwise. (dc) In addition to the obligations of the Company set forth in paragraphs (a) ~~through~~ and (cb) of this Section 5.02, the Company shall ~~(i) promptly (~~promptly, and in any event within 24 hours of the receipt ~~thereof by an officer or director of the Company)~~ thereof, advise Parent orally and in writing of any ~~Company Takeover Proposal or any inquiry or proposal that may reasonably be expected to lead to a Company~~ Takeover Proposal, the material terms and conditions of any such ~~Company~~ Takeover Proposal ~~or inquiry or proposal~~ (including any changes thereto) and the identity of the Person making any such Takeover Proposal. The Company ~~Takeover Proposal or inquiry or proposal,~~ shall (iix) keep Parent informed in all material respects and on a reasonably current basis of the status and details (including any change to the terms thereof) of any ~~Company~~ Takeover Proposal, and (~~iii~~y) provide to Parent as soon as practicable after receipt or delivery thereof copies of all correspondence and other written ~~and electronic~~ material exchanged between the Company or any of ~~the Company~~ its Subsidiaries and any Person that describes any of the ~~material~~ terms or conditions of any ~~Company~~ Takeover Proposal. (ed) Nothing contained in this Section 5.02 shall prohibit the Company from (ix) ~~issuing~~ taking and disclosing to its stockholders a ~~“stop-look-and-listen communication” pursuant to~~ position contemplated by Rule ~~14d-9(f~~14e-2(a) promulgated under the Exchange Act or ~~taking and disclosing to its shareholders positions required by Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act, in each case after the commencement of a tender offer~~ (within the meaning of Rule 14d-2 promulgated under the Exchange Act), (ii) issuing a statement in connection with a Company Takeover Proposal that does not involve the commencement of a tender offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act), so long as the statement includes no more information than would be required for a “stop-look-and-listen communication” under Rule 14d-9(f) promulgated under the Exchange Act if such provision was applicable, or (iiiy) making any disclosure to the ~~shareholders~~ stockholders of the Company if, in the good faith judgment of the Company Board (after consultation with outside counsel) failure to so disclose would ~~reasonably be expected to~~ be inconsistent with its ~~fiduciary duties~~ obligations under applicable Law; provided, however, that any such disclosure that addresses or relates to the approval, recommendation or declaration of advisability by the Company Board with respect to this Agreement or a Takeover Proposal shall be deemed to be an Adverse Recommendation Change unless the Company Board in connection with such communication publicly states that its recommendation with respect to this Agreement has not changed; provided, further, that in no event shall the Company or the Company Board or any committee thereof take, or agree or resolve to take, any ~~action prohibited by~~ action, or make any statement, that would violate Section ~~5.02(c~~5.02(b). (fe) For purposes of this Agreement:

Appears in 2 contracts

Samples: Merger Agreement (SAVVIS, Inc.), Merger Agreement (Centurylink, Inc)

No Solicitation by the Company; Company Board Recommendation. (a) The Company agrees that (i) it shall not, ~~and~~ (ii) it shall cause ~~its Affiliates~~ the Company Subsidiaries and its and their respective directors, ~~officers~~ officers, employees not to, and ~~employees~~ (iii) it shall instruct, and ~~each of~~ shall use its reasonable best efforts to cause, its and ~~their respective investment bankers,~~ the Company Subsidiaries’ accountants, ~~attorneys and other~~ consultants, legal counsel, financial advisors, agents or and other representatives (~~collectively~~collectively with the Company and the Company Subsidiaries’ respective directors, officers, employees, “Representatives”” (for the avoidance of doubt, which definition may be applied to any other Person as if such Person were the Company)) not to, ~~(i)~~ and shall not publicly announce any intention to, directly or ~~indirectly~~ indirectly: (A) solicit, ~~initiate~~ initiate, knowingly encourage or knowingly ~~encourage, induce or~~ facilitate any ~~Company Takeover~~ Alternative Proposal or any ~~inquiry, discussion or proposal that may reasonably be expected to lead to a Company Takeover Proposal~~inquiry in respect thereof, (iiB) ~~directly~~ furnish information to or ~~indirectly participate~~ afford access to the business, employees, officers, contracts, properties, assets, books and records of the Company and the Company Subsidiaries to any Person or any Person’s representatives in connection with any Alternative Proposal or inquiry in respect thereof, (C) enter into, continue or maintain discussions or negotiations with any Person or any Person’s representatives with respect to any Alternative Proposal or inquiry in respect thereof, (D) otherwise cooperate with or assist or participate in or knowingly facilitate any discussions or negotiations regarding, or furnish or cause to be furnished to any Person or Group any information with respect to, or ~~cooperate~~ take any other action to knowingly facilitate any inquiry regarding, or the making of any proposal that constitutes, or could be reasonably expected to result in, an Alternative Proposal, (E) approve, agree to, accept, endorse or recommend any Alternative Proposal or otherwise make any Adverse Recommendation Change or resolve to do so, (F) submit to a vote of its shareholders any Alternative Proposal, or (G) enter into any merger agreement, acquisition agreement, letter of intent or agreement in principle or any ~~way with any Person (whether~~ other agreement providing for, or ~~not a Person making a Company Takeover Proposal) with respect~~ related to, any Alternative Proposal (except for Acceptable Confidentiality Agreements entered into in accordance with Section 5.03(b)). Without limiting the foregoing, it is agreed that in the event any Representative of the Company ~~Takeover Proposal~~ takes any action, which, if taken by the Company, would constitute a breach of this Section 5.03(a), then the Company shall be deemed to be in breach of this Section 5.03(a). (b) Notwithstanding anything to the contrary in Section 5.03(a), if the Company or any ~~inquiry~~ Company Subsidiary or ~~proposal~~ any of its or their respective Representatives receives a bona fide unsolicited, written Alternative Proposal by any Person or Group at any time after the date of this Agreement, but prior to the Company Shareholders Meeting, and if the receipt of such Alternative Proposal did not result from a breach of this Section 5.03, the Company and its Representatives may, prior to (but not after) the Company Shareholders Meeting, take the actions set forth in subsections (i) and (ii) of this Section 5.03(b) if and to the extent prior to taking such actions, and only for so long as, the Company Board (or any committee thereof) has determined, in its good faith judgment (after consultation with the Company’s financial advisors and outside legal counsel), that ~~may~~ such Alternative Proposal constitutes or would reasonably be expected to ~~lead~~ result in a Superior Proposal and that the failure to ~~a Company Takeover Proposal or (iii) waive, terminate, modify, amend, release or assign any provisions~~ take such action would be inconsistent with the directors’ exercise of ~~any confidentiality or standstill agreement (or similar agreement) to which it is a party or fail to enforce, to the fullest extent permitted~~ their fiduciary duties under applicable Law, subject to the ~~provisions~~ prior execution by such Person of (and the Company and/or Company Subsidiaries may enter into) an Acceptable Confidentiality Agreement (for the avoidance of doubt, irrespective of whether such Person was previously party to a confidentiality agreement with the Company or any Company Subsidiary): (i) furnish non-public information to and afford access to the business, employees, officers, contracts, properties, assets, books and records of the Company and the Company Subsidiaries to any Person in response to such Alternative Proposal, and (ii) enter into discussions and negotiations with, such Person or Group with respect to such written Alternative Proposal. (c) Promptly (but in no event more than twenty-four (24) hours) following receipt by the Company or any of the Company Subsidiaries or its or their respective Representatives of any ~~such agreement~~Alternative Proposal or any request for nonpublic information or any inquiry that could reasonably be expected to result in any Alternative Proposal, ~~including by obtaining an injunction to prevent any breach~~ the Company shall advise Parent in writing of the receipt of such ~~agreements~~ Alternative Proposal, request or inquiry, and ~~to enforce specifically~~ the terms and ~~provisions thereof~~ conditions of such Alternative Proposal, request or inquiry (including, in each case, the identity of the Person or Group making any ~~court having jurisdiction~~such Alternative Proposal, request or inquiry), and the Company shall as promptly as practicable provide to Parent (i) a copy of such Alternative Proposal, request or inquiry, if in writing, or (ii) a written summary of the material terms of such Alternative Proposal, request or inquiry, if oral and, in either case, any other documents provided in connection therewith. The Company agrees that it shall promptly provide to Parent any non-public information concerning the Company or any Company Subsidiary that may be provided (pursuant to Section 5.03(b)) to any other Person or Group in connection with any Alternative Proposal that has not previously been provided to Parent. In addition, the Company shall provide Parent as promptly as practicable with notice setting forth all such information as is reasonably necessary to keep Parent informed on a current basis in all material respects of all communications regarding (including amendments or proposed amendments to) such Alternative Proposal, request or inquiry. None of the Company or any Company Subsidiary shall, after the date of this Agreement, enter into any agreement that would prohibit them from providing any of the foregoing information to Parent. (d) Notwithstanding anything herein to the contrary, at any time prior to the Company Shareholders Meeting, the Company Board may (i) (A) withhold, withdraw, qualify or modify, or propose publicly to withhold, withdraw, qualify or modify, in a manner adverse to Parent, the Company Recommendation or take any action, or make any public statement, filing or release inconsistent with the Company Recommendation, (B) fail to include, or publicly propose to fail to include, the Company Recommendation in the Proxy Statement, (C) approve, endorse, adopt or recommend, or publicly propose to approve, endorse, adopt or recommend, an Alternative Proposal, (D) if a tender offer or exchange offer for share capital of the Company that constitutes an Alternative Proposal is commenced, fail to publicly recommend against acceptance of such tender offer or exchange offer by the Company shareholders (including, for these purposes, by taking no position with respect to the acceptance of such tender offer or exchange offer by its shareholders, which shall constitute a failure to recommend against acceptance of such tender offer or exchange offer, provided that a customary “stop, look and listen” communication by the Board of Directors pursuant to Rule 14d-9(f) of the Exchange Act shall not be prohibited), within ten (10) Business Days after commencement or (E) (1) following the public disclosure or public announcement of an Alternative Proposal (other than a tender offer or exchange offer as contemplated in clause (D)) and at the request in writing by Parent or (2) at any other time at the request in writing by Parent following the occurrence of any event or development as a result of which Parent reasonably determines such reaffirmation is appropriate, in each case, fail to reaffirm publicly the Company Recommendation within five (5) Business Days after Parent requests in writing that the Company Recommendation be reaffirmed publicly (provided that Parent shall be entitled to make such a written request only once for each Alternative Proposal and once for each increase in price or other material change in terms of such Alternative Proposal, and twice otherwise) (any of the foregoing being an “Adverse Recommendation Change”) or (ii) if the Company Board has determined in good faith, after consultation with outside legal counsel and its financial advisors, that a bona fide written Alternative Proposal received by the Company in compliance with this Section 5.03 and that has not been withdrawn is a Superior Proposal (after taking into account the terms of any revised offer by Parent pursuant to this Section 5.03(d)) (a “Superior Proposal Determination”), terminate this Agreement pursuant to Section 8.01(d) to enter into a definitive written agreement providing for such Superior Proposal simultaneously with the termination of this Agreement (a “Superior Proposal Agreement”), in each case with respect to the foregoing clauses (i) and (ii), if and only if, (x) the Company Board has determined in good faith, after consultation with outside legal counsel, that the failure to make an Adverse Recommendation Change or to take such action as contemplated in clause (ii) above would be inconsistent with the directors’ exercise of their fiduciary duties under applicable Law, (y) the Company and its Subsidiaries have complied in all material respects with this Section 5.03 and (z) with respect to an Adverse Recommendation Change, the Company Board determines to make such Adverse Recommendation Change either (I) in response to an Intervening Event or (II) in connection with a Superior Proposal Determination and the Company’s related entry into a Superior Proposal Agreement pursuant to clause (ii) above; provided that the Company Board may not make an Adverse Recommendation Change or, in the case of entering into a Superior Proposal Agreement, terminate this Agreement pursuant to Section 8.01(d), unless: (i) the Company has complied in all material respects with this Section 5.03; (ii) the Company has provided prior written notice to Parent at least four (4) Business Days in advance (the “Notice Period”) of its intent to take such action, which notice shall advise Parent of the circumstances giving rise to the Intervening Event (if any) with respect to the Adverse Recommendation Change, and, in the case of a Superior Proposal, that the Company Board has received such Superior Proposal and made a Superior Proposal Determination with respect to such Superior Proposal and shall include a copy of such Superior Proposal, a copy of the proposed Superior Proposal Agreement with, and the identity of, the party making the Superior Proposal and all other material documents related to such Superior Proposal that were provided to the Company or its Representatives (including any financing commitments with respect to such Superior Proposal that were provided to the Company or its Representatives); (iii) during the Notice Period, the Company has and has caused its financial advisors and outside legal counsel to negotiate with Parent in good faith (to the extent Parent desires to so negotiate) to make such adjustments in the terms and conditions of this Agreement so that, in the case of a Superior Proposal, such Superior Proposal ceases to constitute (in the judgment of the Company Board) a Superior Proposal or in case of an Intervening Event, the failure to make such Adverse Recommendation Change (in the judgment of the Company Board) would no longer be inconsistent with the directors’ exercise of their fiduciary duties under applicable Law; and (iv) after the completion of the Notice Period, the Company Board has determined in good faith, after considering the results of such negotiations and giving effect to any proposals, amendments or modifications made or agreed to by Parent during the Notice Period, if any, that, in the case of a Superior Proposal, after consultation with its outside legal counsel and financial advisors such Superior Proposal (in the judgment of the Company Board) remains a Superior Proposal or in cases of an Intervening Event, after consultation with its outside legal counsel, that the failure to make such Adverse Recommendation Change (in the judgment of the Company Board) would be inconsistent with the directors’ exercise of their fiduciary duties under applicable Law. If during the Notice Period any revisions are made to the Superior Proposal (other than immaterial revisions that do not relate to the financial terms, consideration or conditionality of the Superior Proposal), the Company shall deliver a new written notice to Parent and shall comply with the requirements of this Section 5.03(d) with respect to such new written notice; provided, however, that for purposes of this sentence, references to the four (4) Business Day period above shall be deemed to be references to a two (2) Business Day period (and the notice period shall be extended accordingly and in no event shall be shortened). (e) The Company and its Subsidiaries shall, and the Company shall ~~cause its Affiliates and~~ direct its and their respective Representatives to, (i) immediately cease and cause to be terminated any and all existing ~~solicitation~~activities, discussions or negotiations with any ~~Person~~ Persons conducted heretofore with respect to any ~~Company Takeover Proposal, or any inquiry~~ offer or proposal that constitutes, or may reasonably be expected to ~~lead to a Company Takeover~~ result in, an Alternative Proposal, (ii) request the prompt return or destruction of all confidential information previously furnished ~~in connection therewith and immediately terminate all physical and electronic dataroom access previously granted~~ to any ~~such~~ Person ~~or its Representatives.~~ (bother than Parent) ~~Notwithstanding~~ that has, within the ~~foregoing, if at any time~~ one (1) year period prior to ~~obtaining~~ the ~~Company Shareholder Approval, the Company or any of its Representatives receives a bona fide oral or written Company Takeover Proposal, which Company Takeover Proposal did not result from any breach~~ date of this ~~Section 5.02~~Agreement, ~~(i) the Company and its Representatives may contact such Person making the Company Takeover~~ made or indicated an intention to make an Alternative Proposal ~~or its Representatives to request that any bona fide Company Takeover Proposal made orally be made in writing~~ and (iiiii) ~~in response~~ not waive or amend any “standstill” provision or provisions of similar effect to which it is a ~~bona fide written Company Takeover Proposal if~~ party or of which it is a beneficiary and shall enforce any such provisions, provided that amendments to such provisions to allow private proposals to the Company Board ~~determines in good faith (after consultation with its outside counsel and financial advisor)~~ that ~~the failure to take the following actions~~ would not reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, and that such Company Takeover Proposal constitutes or is reasonably likely to lead to a Superior Company Proposal, the Company may (and may authorize and permit its Affiliates and its and their Representatives to), subject to compliance with Section 5.02(e), (A) enter into an Acceptable Confidentiality Agreement with the Person making the Company Takeover Proposal and furnish information pursuant to an Acceptable Confidentiality Agreement (including non-public information and data) with respect to the Company and the Company Subsidiaries to the Person making such Company Takeover Proposal (and its Representatives) (provided that all such information has previously been provided to Parent or is provided to Parent prior to or substantially concurrent with the time it is provided to such Person), and (B) participate in discussions regarding the terms of such Company Takeover Proposal and the negotiation of such terms with, and only with, the Person making such Company Takeover Proposal (and such Person’s Representatives). Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 5.02 by any Representative of the Company or any of its Affiliates shall constitute a breach of this Section 5.02 by the Company. (c) Except as set forth below, neither the Company Board nor any committee thereof shall (i) (A) withdraw or fail to make when required by this Agreement (or modify in any manner adverse to Parent), or propose or agree to withdraw or fail to make when required by this Agreement (or modify in any manner adverse to Parent), the Company Board Recommendation or (B) adopt, recommend or declare advisable, or propose or agree to adopt, recommend or declare advisable, any Company Takeover Proposal (any action described in this clause (i) being referred to as a “Company Adverse Recommendation Change”) or (ii) adopt, recommend or declare advisable, or propose or agree to adopt, recommend or declare advisable, or allow the Company or any of its Affiliates to execute or enter into, any confidentiality agreement (other than an Acceptable Confidentiality Agreement) letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, alliance agreement, partnership agreement or other similar agreement or arrangement (an “Acquisition Agreement”) constituting, or that may reasonably be expected to lead to, a Company Takeover Proposal. Notwithstanding the foregoing, at any time prior to obtaining the Company Shareholder Approval, the Company Board may (I) make a Company Adverse Recommendation Change or (II) cause require the Company to ~~enter into an Acquisition Agreement constituting or~~ make a public announcement in respect thereof are permitted to the extent that may reasonably be expected to lead to a Company Takeover Proposal not obtained in violation of this Section 5.02 and terminate this Agreement pursuant to Section 8.01(c)(ii), in either case if the Company Board determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation), that (x) in the case of clause (I), where the Company Adverse Recommendation Change is made in response to an Intervening Event, or the consequences thereof, and the failure to ~~take such action~~ do so would ~~reasonably be expected to~~ be inconsistent with the directors’ exercise of their fiduciary duties under applicable Law ~~and~~ (~~y) in the case of (A) clause (I) where such Company Adverse Recommendation Change is made in response to a Company Takeover Proposal, or (B) clause (II~~after consultation with outside legal counsel), such Company Takeover Proposal constitutes a Superior Company Proposal; provided, however, that the Company shall not be entitled to make a Company Adverse Recommendation Change or take any action set forth in clause (II) unless (1) the Company has given Parent at least five Business Days’ prior written notice (a “Company Notice of Recommendation Change”) (it being understood and agreed that any amendment to any material term of any Superior Company Proposal shall require a new Company Notice of Recommendation Change and a new notice period (which shall be two Business Days instead of five Business Days)) advising Parent that the Company Board intends to take such action (which notice shall specify the identity of the party making such Superior Company Proposal and the material terms thereof and, in the case of an Intervening Event, specifying the details thereof), (2) the Company has negotiated, and has caused its Representatives to negotiate, in good faith with Parent during such notice period, to the extent Parent wishes to negotiate, to enable Parent to propose in writing a binding offer to effect revisions to the terms of this Agreement such that it would cause such Superior Company Proposal to no longer constitute a Superior Company Proposal or for such Intervening Event to no longer warrant a Company Adverse Recommendation Change, and (3) following the end of such notice period, the Company Board or any committee thereof shall have considered in good faith such binding offer or Intervening Event, and shall have determined that the Superior Company Proposal would continue to constitute a Superior Company Proposal if the revisions proposed in such binding offer were to be given effect or that such Intervening Event continues to warrant a Company Adverse Recommendation Change; and provided, further that any purported termination of this Agreement pursuant to this sentence shall be void and of no force and effect unless the termination is in accordance with Section 8.01 and, to the extent required under the terms of this Agreement, the Company pays or causes to be paid to Parent the applicable Company Termination Fee in accordance with Section 6.06 prior to or concurrently with such termination so long as Parent has provided the Company with wire instructions for such payment. (d) In addition to the obligations of the Company set forth in paragraphs (a) through (c) of this Section 5.02, the Company shall (i) promptly (and in any event within 24 hours of receipt thereof by an officer or director of the Company) advise Parent orally and in writing of any Company Takeover Proposal or any inquiry or proposal that may reasonably be expected to lead to a Company Takeover Proposal, the material terms and conditions of any such Company Takeover Proposal or inquiry or proposal (including any changes thereto) and the identity of the Person making any such Company Takeover Proposal or inquiry or proposal, (ii) keep Parent informed in all material respects on a reasonably current basis of the status and details (including any change to the terms thereof) of any Company Takeover Proposal, and (iii) provide to Parent as soon as practicable after receipt or delivery thereof copies of all correspondence and other written and electronic material exchanged between the Company or any of the Company Subsidiaries and any Person that describes any of the material terms or conditions of any Company Takeover Proposal. (ef) Nothing contained in this ~~Section 5.02~~ Agreement shall ~~prohibit~~ prevent the Company or the Company Board from ~~(i)~~ issuing a “stop~~-look-and-listen communication~~, look and listen” communication pursuant to Rule 14d-9(f) ~~promulgated~~ under the Exchange Act or ~~taking and disclosing to its shareholders positions required by~~ complying with Rule 14d-9 or and Rule 14e-2 promulgated under the Exchange Act, in each case after the commencement of a tender offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act), (ii) issuing a statement in connection with a Company Takeover Proposal that does not involve the commencement of a tender offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act), so long as the statement includes no more information than would be required for a “stop-look-and-listen communication” under Rule 14d-9(f) promulgated under the Exchange Act ~~if such provision was applicable,~~ with respect to an Alternative Proposal or ~~(iii)~~ from making any disclosure to the Company’s shareholders ~~of the Company if, in the good faith judgment of~~ if the Company Board (after consultation with outside legal counsel) concludes that its failure to do so ~~disclose~~ would ~~reasonably be expected to~~ be inconsistent with its fiduciary duties under applicable Law; ~~provided~~provided that any Adverse Recommendation Change may only be made in accordance with Section 5.03(d). For the avoidance of doubt, ~~however,~~ a factually accurate public statement that ~~in no event shall~~ describes the Company’s receipt of an Alternative Proposal and the operation of this Agreement with respect thereto (including reaffirmation of the Company ~~or the Company Board or any committee thereof take, or agree or resolve to take, any action prohibited by Section 5.02(c)~~Recommendation) shall not be deemed an Adverse Recommendation Change. (fg) For purposes of this Agreement:

Appears in 2 contracts

Samples: Merger Agreement (New Residential Investment Corp.), Merger Agreement (Home Loan Servicing Solutions, Ltd.)

No Solicitation by the Company; Company Board Recommendation. (a) The Company shall not, and shall cause its Affiliates and its and their respective directors, officers and employees and each of its and their respective investment bankers, accountants, attorneys and other advisors, agents or representatives (collectively, “Representatives”) not to, (i) directly or indirectly solicit, initiate or knowingly encourage, induce or facilitate any Company Takeover Proposal or any inquiry, discussion or proposal that may reasonably be expected to lead to a Company Takeover Proposal, (ii) directly or indirectly participate in any discussions or negotiations with any Person regarding, or furnish to any Person any information with respect to, or cooperate in any way with any Person (whether or not a Person making a Company Takeover Proposal) with respect to, any Company Takeover Proposal or any inquiry or proposal that may reasonably be expected to lead to a Company Takeover Proposal or (iii) waive, terminate, modify, amend, release or assign any provisions of any confidentiality or standstill agreement (or similar agreement) to which it is a party or fail to enforce, to the fullest extent permitted under applicable Law, the provisions of any such agreement, including by obtaining an injunction to prevent any breach of such agreements and to enforce specifically the terms and provisions thereof in any court having jurisdiction. The Company shall, and shall cause its Affiliates and its and their respective Representatives to, immediately cease and cause to be terminated all existing solicitation, discussions or negotiations with any Person conducted heretofore with respect to any Company Takeover Proposal, or any inquiry or proposal that may reasonably be expected to lead to a Company Takeover Proposal, request the prompt return or destruction of all confidential information previously furnished in connection therewith and immediately terminate all physical and electronic dataroom access previously granted to any such Person or its Representatives. (b) Notwithstanding the foregoing, if at any time prior to obtaining the Company Shareholder Approval, the Company or any of its Representatives receives a bona fide oral or written Company Takeover Proposal, which Company Takeover Proposal did not result from any breach of this Section 5.02, (i) the Company and its Representatives may contact such Person making the Company Takeover Proposal or its Representatives to request that any bona fide Company Takeover Proposal made orally be made in writing and (ii) in response to a bona fide written Company Takeover Proposal if the Company Board determines in good faith (after consultation with its outside counsel and financial advisor) that the failure to take the following actions would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, and that such Company Takeover Proposal constitutes or is reasonably likely to lead to a Superior Company Proposal, the Company may (and may authorize and permit its Affiliates and its and their Representatives to), subject to compliance with Section 5.02(e), (A) enter into an Acceptable Confidentiality Agreement with the Person making the Company Takeover Proposal and furnish information pursuant to an Acceptable Confidentiality Agreement (including non-public information and data) with respect to the Company and the Company Subsidiaries to the Person making such Company Takeover Proposal (and its Representatives) (provided that all such information has previously been provided to Parent or is provided to Parent prior to or substantially concurrent with the time it is provided to such Person), and (B) participate in discussions regarding the terms of such Company Takeover Proposal and the negotiation of such terms with, and only with, the Person making such Company Takeover Proposal (and such Person’s Representatives). Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 5.02 by any Representative of the Company or any of its Affiliates shall constitute a breach of this Section 5.02 by the Company. (c) Except as set forth below, neither the Company Board nor any committee thereof shall (i) (A) withdraw or fail to make when required by this Agreement (or modify in any manner adverse to Parent), or propose or agree to withdraw or fail to make when required by this Agreement (or modify in any manner adverse to Parent), the Company Board Recommendation or (B) adopt, recommend or declare advisable, or propose or agree to adopt, recommend or declare advisable, any Company Takeover Proposal (any action described in this clause (i) being referred to as a “Company Adverse Recommendation Change”) or (ii) adopt, recommend or declare advisable, or propose or agree to adopt, recommend or declare advisable, or allow the Company or any of its Affiliates to execute or enter into, any confidentiality agreement (other than an Acceptable Confidentiality Agreement) letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, alliance agreement, partnership agreement or other similar agreement or arrangement (an “Acquisition Agreement”) constituting, or that may reasonably be expected to lead to, a Company Takeover Proposal. Notwithstanding the foregoing, at any time prior to obtaining the Company Shareholder Approval, the Company Board may (I) make a Company Adverse Recommendation Change or (II) cause the Company to enter into an Acquisition Agreement constituting or that may reasonably be expected to lead to a Company Takeover Proposal not obtained in violation of this Section 5.02 and terminate this Agreement pursuant to Section 8.01(c)(ii), in either case if the Company Board determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation), that (x) in the case of clause (I), where the Company Adverse Recommendation Change is made in response to an Intervening Event, or the consequences thereof, and the failure to take such action would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law and (y) in the case of (A) clause (I) where such ~~Company~~ Adverse Recommendation Change is made in response to a Company Takeover Proposal, or (B) clause (II), such Company Takeover Proposal constitutes a Superior Company Proposal; provided, however, that the Company shall not be entitled to make a Company Adverse Recommendation Change or take any action set forth in clause (II) unless (1) the Company has given Parent at least five Business Days’ prior written notice (a “Company Notice of Recommendation Change”) (it being understood and agreed that any amendment to any material term of any Superior Company Proposal shall require a new Company Notice of Recommendation Change and a new notice period (which shall be two Business Days instead of five Business Days)) advising Parent that the Company Board intends to take such action (which notice shall specify the identity of the party making such Superior Company Proposal and the material terms thereof and, in the case of an Intervening Event, specifying the details thereof), (2) the Company has negotiated, and has caused its Representatives to negotiate, in good faith with Parent during such notice period, to the extent Parent wishes to negotiate, to enable Parent to propose in writing a binding offer to effect revisions to the terms of this Agreement such that it would cause such Superior Company Proposal to no longer constitute a Superior Company Proposal or for such Intervening Event to no longer warrant a Company Adverse Recommendation Change, and (3) following the end of such notice period, the Company Board or any committee thereof shall have considered in good faith such binding offer or Intervening Event, and shall have determined that the Superior Company Proposal would continue to constitute a Superior Company Proposal if the revisions proposed in such binding offer were to be given effect or that such Intervening Event continues to warrant a Company Adverse Recommendation Change; and provided, further that any purported termination of this Agreement pursuant to this sentence shall be void and of no force and effect unless the termination is in accordance with Section 8.01 and, to the extent required under the terms of this Agreement, the Company pays or causes to be paid to Parent the applicable Company Termination Fee in accordance with Section 6.06 prior to or concurrently with such termination so long as Parent has provided the Company with wire instructions for such payment. (d) In addition to the obligations of the Company set forth in paragraphs (a) through (c) of this Section 5.02, the Company shall (i) promptly (and in any event within 24 hours of receipt thereof by an officer or director of the Company) advise Parent orally and in writing of any Company Takeover Proposal or any inquiry or proposal that may reasonably be expected to lead to a Company Takeover Proposal, the material terms and conditions of any such Company Takeover Proposal or inquiry or proposal (including any changes thereto) and the identity of the Person making any such Company Takeover Proposal or inquiry or proposal, (ii) keep Parent informed in all material respects on a reasonably current basis of the status and details (including any change to the terms thereof) of any Company Takeover Proposal, and (iii) provide to Parent as soon as practicable after receipt or delivery thereof copies of all correspondence and other written and electronic material exchanged between the Company or any of the Company Subsidiaries and any Person that describes any of the material terms or conditions of any Company Takeover Proposal. (e) Nothing contained in this Section 5.02 shall prohibit the Company from (i) issuing a “stop-look-and-listen communication” pursuant to Rule 14d-9(f) promulgated under the Exchange Act or taking and disclosing to its shareholders positions required by Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act, in each case after the commencement of a tender offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act), (ii) issuing a statement in connection with a Company Takeover Proposal that does not involve the commencement of a tender offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act), so long as the statement includes no more information than would be required for a “stop-look-and-listen communication” under Rule 14d-9(f) promulgated under the Exchange Act if such provision was applicable, or (iii) making any disclosure to the shareholders of the Company if, in the good faith judgment of the Company Board (after consultation with outside counsel) failure to so disclose would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law; provided, however, that in no event shall the Company or the Company Board or any committee thereof take, or agree or resolve to take, any action prohibited by Section 5.02(c). (f) For purposes of this Agreement:

Appears in 2 contracts

Samples: Merger Agreement (Cincinnati Bell Inc), Merger Agreement (Cincinnati Bell Inc)

No Solicitation by the Company; Company Board Recommendation. (a) The Company shall not, and shall cause its ~~Affiliates~~ Subsidiaries and its and their respective directors, officers and employees not to, and ~~each of~~ shall instruct its ~~and their respective investment bankers, accountants, attorneys and~~ other ~~advisors, agents or representatives (collectively, “Representatives”)~~ Representatives not to, (i) directly or indirectly solicit, initiate or knowingly encourage, induce or facilitate any Company Takeover Proposal or any inquiry, ~~discussion~~ offer or proposal that ~~may~~ constitutes, or would reasonably be expected to lead to to, a Company Takeover Proposal, in each case, except for this Agreement and the transactions contemplated hereby, or (ii) directly or indirectly participate in any discussions or negotiations with any Person (except between the Company’s Affiliates and its and their respective Representatives, on the one hand, and Parent, Merger Sub and their Affiliates and its and their respective Representatives, on the other hand) regarding, or furnish to any such Person, any nonpublic information relating to, or afford any Person access to, the business, operations, assets, books, records or personnel of, the Company or any ~~information~~ Company Subsidiary with respect to, or cooperate in any way with any such Person ~~(whether or not a Person making a Company Takeover Proposal)~~ with respect to, any Company Takeover Proposal or any ~~inquiry~~ inquiry, offer or proposal that ~~may~~ constitutes, or would reasonably be expected to lead to to, a Company Takeover Proposal or (iii) waive, terminate, modify, amend, release or assign any provisions of any confidentiality or standstill agreement (or similar agreement) to which it is a party or fail to enforce, to the fullest extent permitted under applicable Law, the provisions of any such agreement, including by obtaining an injunction to prevent any breach of such agreements and to enforce specifically the terms and provisions thereof in any court having jurisdictionProposal. The Company shall, and shall cause its Affiliates and its and their respective Representatives to, immediately cease and cause to be terminated all existing ~~solicitation,~~ discussions or negotiations with any Person (except between the Company’s Affiliates and its and their respective Representatives, on the one hand, and Parent and Parent’s Affiliates and its and their respective Representatives, on the other hand) conducted heretofore with respect to any Company Takeover ~~Proposal,~~ Proposal or any ~~inquiry~~ inquiry, offer or proposal that ~~may~~ constitutes, or would reasonably be expected to lead to to, a Company Takeover Proposal, request the prompt return or destruction of all ~~confidential~~ nonpublic information previously furnished ~~in connection therewith~~ and immediately terminate all physical and electronic ~~dataroom~~ data room access previously granted to any such Person or its Representatives~~. (b)~~ . Notwithstanding anything to the ~~foregoing~~contrary herein, if at any time prior to obtaining the Company Shareholder Approval, the Company or any of its Representatives receives a bona fide oral or written Company Takeover Proposal, which Company Takeover Proposal did not result from any breach of this Section 5.02, (i) the Company and its Representatives may contact such Person making the Company Takeover Proposal or its Representatives to request that any bona fide Company Takeover Proposal made orally be made in writing and (ii) in response to the receipt of a bona fide written Company Takeover Proposal if made after the date of this Agreement that does not result from a breach (other than an immaterial breach) of this Section 5.03(a) by the Company and that the Company Board determines in good faith (after consultation with ~~its~~ outside legal counsel and a nationally recognized financial advisor) ~~that the failure to take the following actions~~ constitutes or would reasonably be expected ~~to be inconsistent with its fiduciary duties under applicable Law, and that such Company Takeover Proposal constitutes or is reasonably likely~~ to lead to a Superior Company ~~Proposal~~Proposal and the failure to take such action described in clause (1) or (2) of this Section 5.03(a) would be reasonably likely to be inconsistent with the fiduciary duties of the Company Board under applicable Law, the Company and its Representatives may (~~and may authorize and permit its Affiliates and its and their Representatives to), subject to compliance with Section 5.02(e), (A~~1) ~~enter into an Acceptable Confidentiality Agreement with the Person making the Company Takeover Proposal and~~ furnish information ~~pursuant to an Acceptable Confidentiality Agreement (including non-public information and data)~~ with respect to the Company and the Company Subsidiaries to the Person making such Company Takeover Proposal (and its Representatives) (provided that all such information has previously been provided to Parent or is provided to Parent ~~prior to or substantially concurrent with~~ as promptly as practicable after, and in any event within twenty-four (24) hours of, the ~~time it is provided~~ provision of such information to such Person), ) pursuant to an Acceptable Confidentiality Agreement that does not restrict the Company’s ability to comply with its obligations under this Section 5.03 and (B2) participate in discussions regarding the terms of such Company Takeover ~~Proposal~~ Proposal, including terms of a Company Acquisition Agreement with respect thereto, and the negotiation of such terms ~~with, and only with,~~ with the Person making such Company Takeover Proposal (and such Person’s Representatives)) pursuant to an Acceptable Confidentiality Agreement. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section ~~5.02~~ 5.03 by any Representative of the Company or any of its Affiliates shall constitute a breach of this Section ~~5.02~~ 5.03 by the Company. Notwithstanding anything to the contrary herein, the Company may grant a waiver, amendment or release under any confidentiality or standstill agreement to the extent necessary to allow a confidential Company Takeover Proposal to be made to the Company or the Company Board so long as the Company Board promptly (and in any event, within twenty-four (24) hours) notifies Parent thereof after granting any such waiver, amendment or release and the Company Board determines, prior to granting any such waiver, amendment or release, in good faith (after consultation with outside legal counsel) that the failure to grant such waiver, amendment or release would be reasonably likely to be inconsistent with the Company’s Board’s fiduciary duties under applicable Law. (cb) Except as set forth ~~below~~in Section 5.03(a), Section 5.03(c), Section 5.03(e) and Section 5.03(f), and except for the public disclosure of a Company Recommendation Change Notice made in compliance with this Agreement, neither the Company Board nor any committee thereof shall (i) ~~(A) withdraw~~ withdraw, change, qualify, withhold, modify in any manner adverse to Parent, or ~~fail~~ propose publicly to ~~make when required by this Agreement (~~withdraw, change, qualify, withhold or modify in any manner adverse to Parent~~), or propose or agree to withdraw or fail to make when required by this Agreement (or modify in any manner adverse to Parent)~~, the Company Board ~~Recommendation or~~ Recommendation, (Bii) adopt, ~~recommend~~ approve, declare advisable or ~~declare advisable~~recommend, or propose ~~or agree~~ publicly to adopt, ~~recommend~~ approve, declare advisable or ~~declare advisable~~recommend, any Company Takeover Proposal, (iii) fail to include in the Proxy Statement the Company Board Recommendation (except as set forth in Section 6.01(a)), (iv) fail to expressly reaffirm publicly the Company Board Recommendation following Parent’s written request to do so if a Company Takeover Proposal is publicly announced or disclosed (provided that Parent may only make such request two (2) times with respect to any particular Company Takeover Proposal or any material publicly announced or disclosed amendment or modification thereto), on or prior to the earlier of (A) the fifth (5th) Business Day after the delivery of such request by Parent and (B) two (2) Business Days prior to the Company Shareholders Meeting (or any adjournment or postponement thereof) or (v) take any formal action or make any recommendation or public statement in connection with a tender offer or exchange offer (except for a recommendation against such offer or a customary “stop, look and listen” communication of the type contemplated by Rule 14d-9(f) under the Exchange Act) (any action ~~described~~ in ~~this clause~~ the foregoing clauses (ii)–(v) being referred to as a “Company Adverse Recommendation Change”). Except as set forth in Section 5.03(a), Section 5.03(c), Section 5.03(e) and Section 5.03(f), neither the Company Board nor any committee thereof shall authorize, permit, approve or ~~(ii) adopt, recommend or declare advisable~~recommend, or propose publicly to authorize, permit, approve or ~~agree to adopt, recommend or declare advisable~~recommend, or allow the Company or any of its Affiliates to execute or enter into, any ~~confidentiality agreement (other than an Acceptable Confidentiality Agreement)~~ Contract, letter of intent, memorandum of understanding, agreement in principle, agreement, merger agreement, acquisition ~~agreement, option agreement, joint venture agreement, alliance agreement, partnership agreement~~ or ~~other~~ similar agreement or ~~arrangement (an “Acquisition Agreement”)~~ commitment constituting, or that ~~may~~ would reasonably be expected to lead to, a any Company Takeover Proposal, or requiring, or that would reasonably be expected to cause, the Company to abandon or terminate this Agreement (a “Company Acquisition Agreement”). (c) Notwithstanding anything to the ~~foregoing~~contrary herein, at any time prior to obtaining the Company Shareholder Approval, the Company Board may ~~(I)~~ make a Company Adverse Recommendation Change or ~~(II) cause the Company to enter into an Acquisition Agreement constituting or that may reasonably be expected to lead to a Company Takeover Proposal not obtained in violation of this Section 5.02 and~~ terminate this Agreement ~~pursuant~~ in accordance with Section 8.01(c)(i) (subject to ~~Section 8.01(c)(ii~~the satisfaction of the conditions therein), in ~~either case~~ each case, if the Company has received a Superior Company Proposal that does not result directly or indirectly from a breach (other than an immaterial breach) of Section 5.03 by the Company or any Company Subsidiary and, in each case, only if the Company Board determines in good faith (after consultation with outside legal counsel and a ~~financial advisor of~~ nationally recognized ~~reputation),~~ financial advisor) that ~~(x) in the case of clause (I), where the Company Adverse Recommendation Change is made in response to an Intervening Event, or the consequences thereof, and~~ the failure to take such action would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law and (y) in the case of (A) clause (I) where such Company Adverse Recommendation Change is made in response to a Company Takeover Proposal, or (B) clause (II), such Company Takeover Proposal constitutes a Superior Company Proposal; provided, however, that the Company shall not be entitled to make effect a Company Adverse Recommendation Change or take any action set forth in clause (II) unless (1) the Company has given Parent at least five Business Days’ prior written notice (a “Company Notice of Recommendation Change”) (it being understood and agreed that any amendment to any material term of any Superior Company Proposal shall require a new Company Notice of Recommendation Change and a new notice period (which shall be two Business Days instead of five Business Days)) advising Parent that the Company Board intends to take such action (which notice shall specify the identity of the party making such Superior Company Proposal and the material terms thereof and, in the case of an Intervening Event, specifying the details thereof), (2) the Company has negotiated, and has caused its Representatives to negotiate, in good faith with Parent during such notice period, to the extent Parent wishes to negotiate, to enable Parent to propose in writing a binding offer to effect revisions to the terms of terminate this Agreement such that it would cause such Superior Company Proposal to no longer constitute a Superior Company Proposal or for such Intervening Event to no longer warrant a Company Adverse Recommendation Change, and (3) following the end of such notice period, the Company Board or any committee thereof shall have considered in good faith such binding offer or Intervening Event, and shall have determined that the Superior Company Proposal would continue to constitute a Superior Company Proposal if the revisions proposed in such binding offer were to be given effect or that such Intervening Event continues to warrant a Company Adverse Recommendation Change; and provided, further that any purported termination of this Agreement pursuant to this sentence shall be void and of no force and effect unless the termination is in accordance with Section ~~8.01 and,~~ 8.01(c)(i) in response to the ~~extent required under the terms~~ receipt of ~~this Agreement, the~~ such Superior Company pays or causes to be paid to Parent the applicable Company Termination Fee in accordance with Section 6.06 prior to or concurrently with such termination so long as Parent has provided the Company with wire instructions for such payment. (d) In addition to the obligations of the Company set forth in paragraphs (a) through (c) of this Section 5.02, the Company shall (i) promptly (and in any event within 24 hours of receipt thereof by an officer or director of the Company) advise Parent orally and in writing of any Company Takeover Proposal or any inquiry or proposal that may reasonably be expected to lead to a Company Takeover Proposal, the material terms and conditions of any such Company Takeover Proposal or inquiry or proposal (including any changes thereto) and the identity of the Person making any such Company Takeover Proposal or inquiry or proposal, (ii) keep Parent informed in all material respects on a reasonably current basis of the status and details (including any change to the terms thereof) of any Company Takeover Proposal, and (iii) provide to Parent as soon as practicable after receipt or delivery thereof copies of all correspondence and other written and electronic material exchanged between the Company or any of the Company Subsidiaries and any Person that describes any of the material terms or conditions of any Company Takeover Proposal. (e) Nothing contained in this Section 5.02 shall prohibit the Company from (i) issuing a “stop-look-and-listen communication” pursuant to Rule 14d-9(f) promulgated under the Exchange Act or taking and disclosing to its shareholders positions required by Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act, in each case after the commencement of a tender offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act), (ii) issuing a statement in connection with a Company Takeover Proposal that does not involve the commencement of a tender offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act), so long as the ~~statement includes no more information than~~ case may be, would be required for a “stop-look-and-listen communication” under Rule 14d-9(f) promulgated under the Exchange Act if such provision was applicable, or (iii) making any disclosure to the shareholders of the Company if, in the good faith judgment of the Company Board (after consultation with outside counsel) failure to so disclose would reasonably ~~be expected~~ likely to be inconsistent with ~~its~~ the Company Board’s fiduciary duties under applicable Law; provided, however, that ~~in no event shall the Company or~~ the Company Board may not make such Company Adverse Recommendation Change or terminate this Agreement pursuant to Section 8.01(c)(i) unless (i) the Company Board has provided prior written notice to Parent (a “Company Recommendation Change Notice”) that it is prepared to effect a Company Adverse Recommendation Change or terminate this Agreement in accordance with Section 8.01(c)(i) at least four (4) Business Days prior to taking such action, which notice shall specify the basis for such action and, in the case of a Superior Company Proposal, attaching the most current draft of any ~~committee thereof take~~Company Acquisition Agreement with respect to such Superior Company Proposal or, if no draft exists, a summary of the material terms and conditions of such Superior Company Proposal (it being understood that such Company Recommendation Change Notice shall not in itself be deemed a Company Adverse Recommendation Change and that if there has been any subsequent material revision or ~~agree or resolve~~ amendment to ~~take~~the terms of a Superior Company Proposal, ~~any action prohibited by Section 5.02(c).~~ a new notice to which the provisions of clauses (fiii) ~~For purposes~~ and (iv) of this ~~Agreement:~~Section 5.03(c) shall apply mutatis mutandis except that, in the case of such a new notice, all references to four (4) Business Days in this Section 5.03(c) shall be deemed to be two (2) Business Days), (ii) the Company has provided to Parent, prior to the commencement of such four (4) Business Day period, the information with respect to such Company Takeover Proposal required to be provided pursuant to Section 5.03(a) and Section 5.03(d), (iii) during the four (4) Business Day period after delivery of the Company Recommendation Change Notice, if requested by Parent, the Company and its Representatives negotiate in good faith with Parent and its Representatives regarding any revisions to this Agreement that Parent proposes to make as would permit the Company Board in the exercise of its fiduciary duties not to effect a Company Adverse Recommendation Change or terminate this Agreement pursuant to Section 8.01(c)(i), and (iv) at the end of such four (4) Business Day period and taking into account any changes to the terms of this Agreement committed to in writing by Parent, the Company Board determines in good faith (after consultation with outside legal counsel and a nationally recognized financial advisor) that the failure to make such a Company Adverse Recommendation Change or terminate this Agreement in accordance with Section 8.01(c)(i) would be reasonably likely to be inconsistent with its fiduciary duties under applicable Law, and that, such Company Takeover Proposal still constitutes a Superior Company Proposal.

Appears in 2 contracts

Samples: Merger Agreement (Allete Inc), Merger Agreement (Allete Inc)

No Solicitation by the Company; Company Board Recommendation. (a) ~~The~~ Except as permitted by Section 5.04(b) or Section 5.04(d), the Company ~~shall not~~shall, and shall cause ~~its Affiliates~~ each of the Company Subsidiaries, and its and their ~~respective~~ officers, directors, ~~officers~~ managers or employees, and ~~employees and each of~~ shall instruct its ~~and their respective investment bankers,~~ accountants, ~~attorneys~~ consultants, legal counsel, financial advisors and agents and other ~~advisors, agents or~~ representatives (collectively, “Representatives”) ~~not~~ of the Company or the Company Subsidiaries, to, : (i) immediately cease any existing solicitations, discussions or negotiations with any Persons that may be ongoing with respect to any Alternative Proposal or any proposal that could be reasonably expected to result in an Alternative Proposal; and (ii) from the date hereof until the earlier of the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 8.01, subject to the other provisions of this Section 5.04, not, and not to publicly announce any intention to, directly or ~~indirectly~~ indirectly, (A) solicit, ~~initiate or~~ initiate, knowingly ~~encourage, induce~~ encourage or facilitate any inquiry, discussion, offer or request that constitutes, or would reasonably be expected to lead to, an Alternative Proposal (an “Inquiry”) (it being understood and agreed that ministerial acts that are not otherwise prohibited by this Section 5.04 (such as answering unsolicited phone calls) shall not be deemed to “facilitate” for purposes of, or otherwise constitute a violation of, this Section 5.04), (B) furnish non-public information regarding the Company ~~Takeover~~ and the Company Subsidiaries to any Person in connection with an Inquiry or an Alternative Proposal, (C) enter into, continue or maintain discussions or negotiations with any Person with respect to an Inquiry or an Alternative Proposal, (D) otherwise cooperate with or assist or participate in or facilitate any discussions or negotiations (other than informing Persons of the provisions set forth in this Section 5.04 or contacting any Person making an Alternative Proposal to ascertain facts or clarify terms and conditions for the sole purpose of the Company Board reasonably informing itself about such Alternative Proposal) regarding, or furnish or cause to be furnished to any Person or “Group” (as such term is defined in Section 13(d) under the Exchange Act) any non-public information with respect to, or take any other action to facilitate any Inquiries or the making of any proposal that constitutes, or could be reasonably expected to result in, an Alternative Proposal, (E) approve, agree to, accept, endorse or recommend any Alternative Proposal, (F) submit to a vote of its shareholders, approve, endorse or recommend any Alternative Proposal, (G) effect any Adverse Recommendation Change or (H) enter into any letter of intent or agreement in principle or any ~~inquiry~~agreement providing for any Alternative Proposal (except for Acceptable Confidentiality Agreements). (b) Notwithstanding anything to the contrary in Section 5.04(a), ~~discussion~~ if the Company or ~~proposal~~ any of the Company Subsidiaries or any of its or their respective Representatives receives an Alternative Proposal by any Person or Group at any time prior to the Company Shareholders Meeting, and provided there has been no material breach of Section 5.04(a) that ~~may~~ resulted in such Alternative Proposal, the Company and its Representatives may, prior to the Company Shareholders Meeting, take the actions set forth in subsections (i) and/or (ii) of this Section 5.04(b) if the Company Board (or any committee thereof) has determined, in its good faith judgment (after consultation with the Company’s financial advisors and outside legal counsel), that such Alternative Proposal constitutes or could reasonably be expected to lead to a Superior Proposal and that the failure to take such action would be inconsistent with the directors’ exercise of their fiduciary duties under applicable Law: (i) furnish non-public information to and afford access to the business, employees, officers, contracts, properties, assets, books and records of the Company ~~Takeover~~ and the Company Subsidiaries to any Person in response to such Alternative Proposal, pursuant to the prior execution of (and the Company and/or Company Subsidiaries may enter into) an Acceptable Confidentiality Agreement; and (ii) ~~directly or indirectly participate~~ enter into and engage in ~~any~~ discussions or negotiations with any Person ~~regarding, or furnish to any Person any information~~ with respect ~~to,~~ to an Inquiry or ~~cooperate~~ an Alternative Proposal. (c) Reasonably promptly (but in no event more than 48 hours) following receipt (to the Knowledge of the Company) of any ~~way with any Person (whether or not a Person making a Company Takeover Proposal) with respect to, any Company Takeover~~ Alternative Proposal or any ~~inquiry or proposal that may reasonably be expected to lead to a~~ Inquiry, the Company ~~Takeover~~ shall advise Parent in writing of the receipt of such Alternative Proposal or ~~(iii) waive~~Inquiry, terminate, modify, amend, release or assign any provisions of any confidentiality or standstill agreement (or similar agreement) to which it is a party or fail to enforce, to the fullest extent permitted under applicable Law, the provisions of any such agreement, including by obtaining an injunction to prevent any breach of such agreements and ~~to enforce specifically~~ the terms and ~~provisions thereof~~ conditions of such Alternative Proposal or Inquiry (including, in each case, the identity of the Person or Group making any ~~court having jurisdiction~~such Alternative Proposal or Inquiry), and the Company shall as reasonably promptly as practicable provide to Parent (i) a copy of such Alternative Proposal or Inquiry, if in writing; or (ii) a summary of the material terms of such Alternative Proposal or Inquiry, if oral. The Company ~~shall~~agrees that it shall reasonably promptly provide to Parent any non-public information concerning the Company or any of the Company Subsidiaries that may be provided (pursuant to Section 5.04(b)) to any other Person or Group in connection with any such Alternative Proposal that has not previously been provided to Parent. In addition, ~~and~~ the Company shall ~~cause its Affiliates~~ keep Parent reasonably informed on a prompt basis of any material developments regarding the Alternative Proposal or any material change to the terms or status of the Alternative Proposal or Inquiry (in each case in a manner that is not unduly disruptive of the Company’s ability to conduct good faith discussions in accordance with this Section 5.04 with the party making such Alternative Proposal and its and their respective Representatives to, immediately cease and cause to be terminated all existing solicitation, discussions or negotiations with any Person conducted heretofore with respect to any Company Takeover Proposal, or any inquiry or proposal that may reasonably be expected to lead to a Company Takeover Proposal, request the prompt return or destruction of all confidential information previously furnished in connection therewith and immediately terminate all physical and electronic dataroom access previously granted to any such Person or its Representatives). (bd) Notwithstanding anything herein to the ~~foregoing~~contrary, if at any time prior to ~~obtaining~~ the Company ~~Shareholder Approval~~Shareholders Meeting, the Company Board may (i) in the case of an Intervening Event or if the Company has received a Superior Proposal (after taking into account the terms of any revised offer by Parent pursuant to this Section 5.04(d)), and provided there has been no material breach of Section 5.04(a) that resulted in such Superior Proposal, the Company Board may cause the Company to withdraw, qualify or modify, or propose publicly to withdraw, qualify or modify, in a manner adverse to Parent, the Company Recommendation or take any action, or make any public statement, filing or release inconsistent with the Company Recommendation (any of ~~its Representatives receives~~ the foregoing being an “Adverse Recommendation Change”) (including, for the avoidance of doubt, recommending against the Merger or approving, endorsing or recommending any Alternative Proposal) and (ii) if the Company has received a ~~bona fide oral or~~ Superior Proposal (after taking into account the terms of any revised offer by Parent pursuant to this Section 5.04(d)), terminate this Agreement pursuant to Section 8.01(d) to enter into a definitive written agreement providing for such Superior Proposal simultaneously with the termination of this Agreement, in the case of clauses (i) and (ii), if the Company ~~Takeover~~ Board has determined in good faith, after consultation with outside legal counsel, that the failure to take such action would be inconsistent with the directors’ exercise of their fiduciary duties under applicable Law; provided that the Company Board may not make an Adverse Recommendation Change or, in the case of a Superior Proposal, ~~which Company Takeover Proposal did not result from any breach of~~ terminate this Agreement pursuant to Section ~~5.02~~8.01(d), unless: (i) the Company ~~and its Representatives may contact~~ has provided prior written notice to Parent at least four Business Days in advance (the “Notice Period”) of taking such ~~Person making~~ action, which notice shall advise Parent of the circumstances giving rise to the Adverse Recommendation Change, and, in the case of a Superior Proposal, that the Company ~~Takeover~~ Board has received a Superior Proposal ~~or its Representatives to request that any bona fide Company Takeover~~ and shall include a copy of such Superior Proposal ~~made orally be made in writing~~ (or, where no such copy is available, a detailed description of the material terms and conditions of such Superior Proposal); (ii) during the Notice Period, the Company has negotiated with Parent in ~~response~~ good faith (to the extent Parent desires to so negotiate) to make such adjustments in the terms and conditions of this Agreement so that, in the case of a Superior Proposal, such Superior Proposal ceases to constitute (in the good faith judgment of the Company Board) a Superior Proposal, or in the case of an Intervening Event, the failure to make such Adverse Recommendation Change (in the judgment of the Company Board after consultation with the Company’s financial advisors and outside legal counsel) would no longer be inconsistent with the directors’ exercise of their fiduciary duties under applicable Law; and (iii) the Company Board has determined in good faith, after considering the results of such negotiations and giving effect to any proposals, amendments or modifications made or agreed to by Parent, if any, and after consultation with the Company’s financial advisors and outside legal counsel, that, in the case of a Superior Proposal, such Superior Proposal remains a Superior Proposal or, in the case of an Intervening Event, that the failure to make such Adverse Recommendation Change continues to be inconsistent with the directors’ exercise of their fiduciary duties under applicable Law. If during the Notice Period any material revisions are made to the Superior Proposal, the Company shall deliver a new written notice to Parent and shall comply with the requirements of this Section 5.04(d) with respect to such new written notice; provided, however, that for purposes of this sentence, references to the four Business Day period above shall be deemed to be references to a ~~bona fide written~~ two Business Day period. (e) Nothing contained in this Agreement shall prevent the Company ~~Takeover~~ or the Company Board from issuing a “stop, look and listen” communication pursuant to Rule 14d-9(f) under the Exchange Act or complying with Rule 14d-9 and Rule 14e-2 under the Exchange Act with respect to an Alternative Proposal or from making any disclosure to the Company’s shareholders if the Company Board ~~determines in good faith~~ (after consultation with outside legal counsel) concludes that its ~~outside counsel and financial advisor) that the~~ failure to ~~take the following actions~~ do so would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law. For the avoidance of doubt, ~~and~~ a factually accurate public statement that ~~such Company Takeover Proposal constitutes or is reasonably likely to lead to a Superior Company Proposal,~~ describes the ~~Company may (and may authorize and permit its Affiliates and its and their Representatives to), subject to compliance with Section 5.02(e), (A) enter into~~ Company’s receipt of an Acceptable Confidentiality Agreement with the Person making the Company Takeover Proposal and furnish information pursuant to an Acceptable Confidentiality Agreement (including non-public information and data) with respect to the Company and the Company Subsidiaries to the Person making such Company Takeover Proposal (and its Representatives) (provided that all such information has previously been provided to Parent or is provided to Parent prior to or substantially concurrent with the time it is provided to such Person), and (B) participate in discussions regarding the terms of such Company Takeover Alternative Proposal and the negotiation of such terms with, and only with, the Person making such Company Takeover Proposal (and such Person’s Representatives). Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 5.02 by any Representative of the Company or any of its Affiliates shall constitute a breach operation of this ~~Section 5.02 by the Company. (c) Except as set forth below, neither the Company Board nor any committee thereof~~ Agreement with respect thereto shall (i) (A) withdraw or fail to make when required by this Agreement (or modify in any manner adverse to Parent), or propose or agree to withdraw or fail to make when required by this Agreement (or modify in any manner adverse to Parent), the Company Board Recommendation or (B) adopt, recommend or declare advisable, or propose or agree to adopt, recommend or declare advisable, any Company Takeover Proposal (any action described in this clause (i) being referred to as a “Company not be deemed an Adverse Recommendation Change”) or (ii) adopt, recommend or declare advisable, or propose or agree to adopt, recommend or declare advisable, or allow the Company or any of its Affiliates to execute or enter into, any confidentiality agreement (other than an Acceptable Confidentiality Agreement) letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, alliance agreement, partnership agreement or other similar agreement or arrangement (an “Acquisition Agreement”) constituting, or that may reasonably be expected to lead to, a Company Takeover Proposal. Notwithstanding the foregoing, at any time prior to obtaining the Company Shareholder Approval, the Company Board may (I) make a Company Adverse Recommendation Change or (II) cause the Company to enter into an Acquisition Agreement constituting or that may reasonably be expected to lead to a Company Takeover Proposal not obtained in violation of this Section 5.02 and terminate this Agreement pursuant to Section 8.01(c)(ii), in either case if the Company Board determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation), that (x) in the case of clause (I), where the Company Adverse Recommendation Change is made in response to an Intervening Event, or the consequences thereof, and the failure to take such action would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law and (y) in the case of (A) clause (I) where such Company Adverse Recommendation Change is made in response to a Company Takeover Proposal, or (B) clause (II), such Company Takeover Proposal constitutes a Superior Company Proposal; provided, however, that the Company shall not be entitled to make a Company Adverse Recommendation Change or take any action set forth in clause (II) unless (1) the Company has given Parent at least five Business Days’ prior written notice (a “Company Notice of Recommendation Change”) (it being understood and agreed that any amendment to any material term of any Superior Company Proposal shall require a new Company Notice of Recommendation Change and a new notice period (which shall be two Business Days instead of five Business Days)) advising Parent that the Company Board intends to take such action (which notice shall specify the identity of the party making such Superior Company Proposal and the material terms thereof and, in the case of an Intervening Event, specifying the details thereof), (2) the Company has negotiated, and has caused its Representatives to negotiate, in good faith with Parent during such notice period, to the extent Parent wishes to negotiate, to enable Parent to propose in writing a binding offer to effect revisions to the terms of this Agreement such that it would cause such Superior Company Proposal to no longer constitute a Superior Company Proposal or for such Intervening Event to no longer warrant a Company Adverse Recommendation Change, and (3) following the end of such notice period, the Company Board or any committee thereof shall have considered in good faith such binding offer or Intervening Event, and shall have determined that the Superior Company Proposal would continue to constitute a Superior Company Proposal if the revisions proposed in such binding offer were to be given effect or that such Intervening Event continues to warrant a Company Adverse Recommendation Change; and provided, further that any purported termination of this Agreement pursuant to this sentence shall be void and of no force and effect unless the termination is in accordance with Section 8.01 and, to the extent required under the terms of this Agreement, the Company pays or causes to be paid to Parent the applicable Company Termination Fee in accordance with Section 6.06 prior to or concurrently with such termination so long as Parent has provided the Company with wire instructions for such payment. (d) In addition to the obligations of the Company set forth in paragraphs (a) through (c) of this Section 5.02, the Company shall (i) promptly (and in any event within 24 hours of receipt thereof by an officer or director of the Company) advise Parent orally and in writing of any Company Takeover Proposal or any inquiry or proposal that may reasonably be expected to lead to a Company Takeover Proposal, the material terms and conditions of any such Company Takeover Proposal or inquiry or proposal (including any changes thereto) and the identity of the Person making any such Company Takeover Proposal or inquiry or proposal, (ii) keep Parent informed in all material respects on a reasonably current basis of the status and details (including any change to the terms thereof) of any Company Takeover Proposal, and (iii) provide to Parent as soon as practicable after receipt or delivery thereof copies of all correspondence and other written and electronic material exchanged between the Company or any of the Company Subsidiaries and any Person that describes any of the material terms or conditions of any Company Takeover Proposal. (e) Nothing contained in this Section 5.02 shall prohibit the Company from (i) issuing a “stop-look-and-listen communication” pursuant to Rule 14d-9(f) promulgated under the Exchange Act or taking and disclosing to its shareholders positions required by Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act, in each case after the commencement of a tender offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act), (ii) issuing a statement in connection with a Company Takeover Proposal that does not involve the commencement of a tender offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act), so long as the statement includes no more information than would be required for a “stop-look-and-listen communication” under Rule 14d-9(f) promulgated under the Exchange Act if such provision was applicable, or (iii) making any disclosure to the shareholders of the Company if, in the good faith judgment of the Company Board (after consultation with outside counsel) failure to so disclose would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law; provided, however, that in no event shall the Company or the Company Board or any committee thereof take, or agree or resolve to take, any action prohibited by Section 5.02(c). (f) For purposes of this Agreement:

Appears in 2 contracts

Samples: Merger Agreement (Aircastle LTD), Merger Agreement (Marubeni Corp /Fi)

No Solicitation by the Company; Company Board Recommendation. (a) ~~The~~ After the end of the Transaction Solicitation Period, except, in each case, with respect to an Excluded Party, the Company shall not, ~~and~~ nor shall ~~cause~~ it authorize or instruct any of its ~~Affiliates and~~ Subsidiaries or any of its and their respective directors, officers ~~and~~ or employees ~~and each~~ or any of ~~its and~~ their respective investment bankers, accountants, attorneys ~~and~~ or other advisors, agents or representatives (collectively, “Representatives”) ~~not~~ to, (i) directly or indirectly ~~solicit~~solicit or initiate, ~~initiate~~ or knowingly encourage, induce or facilitate any ~~Company~~ Takeover Proposal or any ~~inquiry, discussion~~ inquiry or proposal that may reasonably be expected to lead to a ~~Company~~ Takeover ~~Proposal,~~ Proposal or (ii) directly or indirectly participate in any discussions or negotiations with any Person regarding, or knowingly furnish to any Person any non-public or confidential information with respect ~~to, or cooperate in~~ to any ~~way with any Person (whether or not a Person making a Company Takeover Proposal) with respect to, any Company~~ Takeover Proposal or any inquiry or proposal that may reasonably be expected to lead to a ~~Company~~ Takeover Proposal or (iii) waive, terminate, modify, amend, release or assign any provisions of any confidentiality or standstill agreement (or similar agreement) to which it is a party or fail to enforce, to the fullest extent permitted under applicable Law, the provisions of any such agreement, including by obtaining an injunction to prevent any breach of such agreements and to enforce specifically the terms and provisions thereof in any court having jurisdictionProposal. The Company shall, and shall cause its ~~Affiliates~~ Subsidiaries and its and their respective Representatives to, except, in each case, with respect to an Excluded Party, immediately cease and cause to be terminated all existing ~~solicitation,~~ discussions or negotiations with any Person conducted heretofore with respect to any ~~Company~~ Takeover Proposal, or any inquiry or proposal that may reasonably be expected to lead to a ~~Company~~ Takeover Proposal, request the prompt return or destruction of all confidential information previously furnished ~~in connection therewith~~ and immediately terminate all physical and electronic ~~dataroom~~ data room access previously granted to any such Person or its Representatives~~. (b)~~ . Notwithstanding the foregoing, if at any time prior to obtaining the Company ~~Shareholder~~ Stockholder Approval, the Company or any of its Representatives receives a bona fide oral or written Company Takeover Proposal, which Company Takeover Proposal did not result from any breach of this Section 5.02, (i) the Company and its Representatives may contact such Person making the Company Takeover Proposal or its Representatives to request that any bona fide Company Takeover Proposal made orally be made in writing and (ii) in response to a bona fide written ~~Company~~ Takeover Proposal if that the Company Board determines in good faith (after consultation with ~~its~~ the Company’s outside counsel and financial advisor) ~~that the failure to take the following actions would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, and that such Company Takeover Proposal~~ constitutes or is reasonably likely to lead to a Superior Proposal, and which Takeover Proposal was not solicited after the end of the Transaction Solicitation Period and was made after the date of this Agreement and prior to the Company ~~Proposal~~Stockholders Meeting and did not otherwise result from a breach of this Section 5.03(a), the Company ~~may (and may authorize and permit its Affiliates and its and their Representatives to)~~may, subject to compliance with Section ~~5.02(e~~5.03(c), (Ax) ~~enter into an Acceptable Confidentiality Agreement with the Person making the Company Takeover Proposal and~~ furnish information ~~pursuant to an Acceptable Confidentiality Agreement (including non-public information and data)~~ with respect to the Company and the Company Subsidiaries to the Person making such ~~Company~~ Takeover Proposal (and its ~~Representatives~~Representatives and any financing sources) (provided that all such information has previously been provided to Parent or is provided to Parent prior to or substantially concurrent with the time it is provided to such Person, except to the extent providing Parent with such information is prohibited by applicable Law) pursuant to a customary confidentiality agreement with the Person making such Takeover Proposal (or with one or more of its financing sources) not less restrictive of such Person than the Confidentiality Agreement (except that the confidentiality agreement between the Company and such Prospective Acquirer need not prohibit the making of a non-public Takeover Proposal to the Company Board), and (By) participate in discussions regarding the terms of such ~~Company~~ Takeover Proposal and the negotiation of such terms with, and only with, the Person making such ~~Company~~ Takeover Proposal (and such Person’s ~~Representatives~~Representatives and any financing sources). For the avoidance of doubt, notwithstanding the end of the Transaction Solicitation Period, the Company and the Company Subsidiaries and their respective Representatives may continue to engage in the activities described in this Section 5.03(a) with respect to any Excluded Party, including with respect to any amended proposal submitted by any Excluded Party, so long as such Person continues to be an Excluded Party. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section ~~5.02~~ 5.03(a) by any Company Subsidiary or any Representative of the Company or any of its ~~Affiliates~~ Subsidiaries shall constitute a breach of this Section ~~5.02~~ 5.03(a) by the Company. (cb) Except as set forth below, neither the Company Board nor any committee thereof shall (i) (A) withdraw ~~or fail to make when required by this Agreement~~ (or modify in any manner adverse to Parent), or propose ~~or agree~~ publicly to withdraw ~~or fail to make when required by this Agreement~~ (or modify in any manner adverse to Parent), the approval, recommendation or declaration of advisability by the Company Board ~~Recommendation~~ or any committee thereof with respect to this Agreement or (B) ~~adopt~~approve, recommend or declare advisable, or propose ~~or agree~~ publicly to ~~adopt~~approve, recommend or declare advisable, any ~~Company~~ Takeover Proposal (any action ~~described~~ in this clause (i) being referred to as a an “~~Company~~ Adverse Recommendation Change”) or (ii) ~~adopt~~approve, recommend or declare advisable, or propose ~~or agree~~ publicly to ~~adopt~~approve, recommend or declare advisable, or allow the Company or any of its ~~Affiliates~~ Subsidiaries to execute or enter into, any confidentiality agreement (other than an Acceptable Confidentiality Agreement) letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, alliance agreement, partnership agreement or other similar agreement or arrangement (an “Alternative Acquisition Agreement~~”) constituting, or that may reasonably be expected to lead to, a Company Takeover Proposal~~. Notwithstanding the foregoing, at any time prior to obtaining the Company ~~Shareholder~~ Stockholder Approval: (i) other than in connection with a bona fide Takeover Proposal that constitutes a Superior Proposal, the Company Board may ~~(I) make a Company~~ effect an Adverse Recommendation Change ~~or (II) cause the Company~~ in response to ~~enter into~~ an Acquisition Agreement constituting or that may reasonably be expected to lead to a Company Takeover Proposal not obtained in violation of this Section 5.02 and terminate this Agreement pursuant to Section 8.01(c)(ii), in either case Intervening Event if the Company Board determines in good faith (after consultation with the Company’s outside counsel and a financial ~~advisor of nationally recognized reputation),~~ advisor) that ~~(x) in the case of clause (I), where the Company Adverse Recommendation Change is made in response to an Intervening Event, or the consequences thereof, and~~ the failure to ~~take such action~~ do so would ~~reasonably be expected to~~ be inconsistent with ~~the directors’~~ its fiduciary duties under applicable Law if and ~~(y) in the case of~~ only if: (A) ~~clause~~ the Company has provided prior written notice to Parent at least three Business Days in advance to the effect that the Company Board has (Ii) ~~where such Company~~ so determined; and (ii) resolved to effect an Adverse Recommendation Change ~~is made~~ pursuant to this Section 5.03(b), which notice will describe the Intervening Event in reasonable detail; and (B) prior to effecting such Adverse Recommendation Change, the Company and its Representatives, during such three Business Day period, have negotiated with Parent and its Representatives in good faith (to the extent that Parent has requested to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that the Company Board no longer determines in good faith that the failure to make an Adverse Recommendation Change in response to such Intervening Event would be inconsistent with its fiduciary duties pursuant to applicable Law; or (ii) if the Company has received a bona fide written Takeover Proposal that the Company ~~Takeover~~ Board has concluded in good faith (after consultation with the Company’s outside counsel and financial advisor) is a Superior Proposal, then the Company Board may (A) effect an Adverse Recommendation Change with respect to such Superior Proposal or (B) ~~clause~~ authorize the Company to terminate this Agreement pursuant to Section 8.01(f) to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal, in each case if and only if: (~~II),~~ A) the Company Board determines in good faith (after consultation with the Company’s outside counsel and financial advisor) that the failure to do so would be inconsistent with its fiduciary duties pursuant to applicable Law; (B) the Company has complied with its obligations in all material respects pursuant to this Section 5.03 with respect to such Takeover Proposal; and (C) (i) the Company has provided prior written notice to Parent at least three (3) Business Days in advance (the “Notice Period”) to the effect that the Company Board has (A) received a bona fide written Takeover Proposal that has not been withdrawn; (B) concluded in good faith that such Takeover Proposal constitutes a Superior ~~Company~~ Proposal; ~~provided, however, that the Company shall not be entitled~~ and (C) resolved to ~~make a Company~~ effect an Adverse Recommendation Change or take any action set forth in clause (II) unless (1) the Company has given Parent at least five Business Days’ prior written notice (a “Company Notice of Recommendation Change”) (it being understood and agreed that any amendment to any material term of any Superior Company Proposal shall require a new Company Notice of Recommendation Change and a new notice period (which shall be two Business Days instead of five Business Days)) advising Parent that the Company Board intends to take such action (which notice shall specify the identity of the party making such Superior Company Proposal and the material terms thereof and, in the case of an Intervening Event, specifying the details thereof), (2) the Company has negotiated, and has caused its Representatives to negotiate, in good faith with Parent during such notice period, to the extent Parent wishes to negotiate, to enable Parent to propose in writing a binding offer to effect revisions to the terms of this Agreement such that it would cause such Superior Company Proposal to no longer constitute a Superior Company Proposal or for such Intervening Event to no longer warrant a Company Adverse Recommendation Change, and (3) following the end of such notice period, the Company Board or any committee thereof shall have considered in good faith such binding offer or Intervening Event, and shall have determined that the Superior Company Proposal would continue to constitute a Superior Company Proposal if the revisions proposed in such binding offer were to be given effect or that such Intervening Event continues to warrant a Company Adverse Recommendation Change; and provided, further that any purported termination of terminate this Agreement pursuant to this ~~sentence shall be void~~ Section 5.03, which notice will describe the basis for such Adverse Recommendation Change or termination, including the identity of the Person or “group” of Persons making such Takeover Proposal, the material terms of such Takeover Proposal and copies of ~~no force~~ all relevant documents relating to such Takeover Proposal; and ~~effect unless~~ (ii) prior to effecting such Adverse Recommendation Change or termination, the ~~termination is~~ Company and its Representatives, during the Notice Period, have negotiated with Parent and its Representatives in ~~accordance with Section 8.01 and,~~ good faith (to the extent ~~required under~~ that Parent has requested to so negotiate) to make such adjustments to the terms and conditions of this ~~Agreement~~Agreement so that such Takeover Proposal would cease to constitute a Superior Proposal; it being understood that (a) in the event of any material revisions to such Takeover Proposal, the Company ~~pays or causes~~ will be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.03 with respect to such new written notice, except that with respect to a Takeover Proposal made by an Excluded Party, references to three (3) Business Days in this Section 5.03(b) shall be deemed to be ~~paid to Parent~~ two (2) Business Days from and after the ~~applicable Company Termination Fee in accordance with Section 6.06 prior to or concurrently with~~ second time such ~~termination so long as Parent has provided~~ a notice is given and (b) the Company Board, at the end of the Notice Period (after consultation with ~~wire instructions for~~ the Company’s outside counsel and financial advisor), must have in good faith reaffirmed its determination that such ~~payment~~bona fide written Takeover Proposal is a Superior Proposal. (dc) In addition to the obligations of the Company set forth in paragraphs (a) ~~through~~ and (cb) of this Section ~~5.02~~5.03, following the end of the Transaction Solicitation Period the Company shall ~~(i) promptly (~~promptly, and in any event within 24 48 hours of the receipt ~~thereof by an officer or director of the Company)~~ thereof, advise Parent ~~orally and~~ in writing of any ~~Company Takeover Proposal or any inquiry or proposal that may reasonably be expected to lead to a Company~~ Takeover Proposal, the material terms and conditions of any such ~~Company~~ Takeover Proposal ~~or inquiry or proposal~~ (including any changes thereto) and the identity of the ~~Person~~ person making any such Takeover Proposal. The Company ~~Takeover Proposal or inquiry or proposal,~~ shall (iix) keep Parent informed in all material respects and on a reasonably current basis of the status and details (including any change to the terms thereof) of any ~~Company~~ Takeover Proposal, and (~~iii~~y) provide to Parent as soon as practicable after receipt or delivery thereof copies of all correspondence and other written ~~and electronic~~ material exchanged between the Company or any of the Company Subsidiaries and any Person that describes any of the ~~material~~ terms or conditions of any ~~Company~~ Takeover Proposal. (ed) Nothing contained in this Section ~~5.02~~ 5.03 shall prohibit the Company from (iw) ~~issuing~~ taking and disclosing to its stockholders a ~~“stop-look-and-listen communication” pursuant to~~ position contemplated by Rule ~~14d-9(f~~14e-2(a) promulgated under the Exchange Act or ~~taking and disclosing to its shareholders positions required~~ making a statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9 ~~or Rule 14e-2 promulgated~~ under the Exchange Act, ~~in each case after the commencement of a tender offer~~ (within the meaning of Rule 14d-2 promulgated under the Exchange Act), (ii) issuing a statement in connection with a Company Takeover Proposal that does not involve the commencement of a tender offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act), so long as the statement includes no more information than would be required for a “stop-look-and-listen communication” under Rule 14d-9(f) promulgated under the Exchange Act if such provision was applicable, or (iiix) making any disclosure to the ~~shareholders~~ stockholders of the Company if, in the good faith judgment of the Company Board (after consultation with outside counsel) failure to so disclose would ~~reasonably be expected to~~ be inconsistent with its ~~fiduciary duties~~ obligations under applicable ~~Law~~Law,(y) in response to an inquiry, responding to inform any Person solely of the existence of the provisions contained in this Section 5.03 or (z) making any “stop, look and listen” statement pursuant to Rule 14d-9(f) under the Exchange Act. The making of a disclosure permitted under this Section 5.03(d) shall not be, in itself, a breach of this Section 5.03; provided, however, that any such disclosure that addresses or relates to the approval, recommendation or declaration of advisability by the Company Board with respect to this Agreement or a Takeover Proposal shall be deemed to be an Adverse Recommendation Change unless the Company Board in connection with such communication publicly states that its recommendation with respect to this Agreement has not changed; provided, further, that in no event shall the Company or the Company Board or any committee thereof take, or agree or resolve to take, any ~~action prohibited by~~ action, or make any statement, that would violate this Section ~~5.02(c)~~5.03. (fe) For purposes of this Agreement:

Appears in 2 contracts

Samples: Merger Agreement (Gartner Inc), Merger Agreement (CEB Inc.)

No Solicitation by the Company; Company Board Recommendation. (a) ~~The~~ Except as permitted by Section 5.04(c) or Section 5.04(d), the Company ~~shall not~~shall, and shall cause ~~its Affiliates~~ each of the Company Subsidiaries, and its and their ~~respective~~ officers, directors, ~~officers~~ managers or employees, and ~~employees~~ shall instruct, and ~~each of its and their respective investment bankers~~use reasonable best efforts to cause, the accountants, ~~attorneys~~ consultants, legal counsel, financial advisors and other ~~advisors,~~ agents ~~or representatives~~ and advisors (collectively, “Representatives”) ~~not~~ of the Company or the Company Subsidiaries, to, : (i) immediately cease any existing solicitations, discussions or negotiations with any Persons that may be ongoing with respect to any Alternative Proposal or any proposal that would be reasonably expected to result in an Alternative Proposal; and (ii) subject to the other provisions of this Section 5.04, not, and not to publicly announce any intention to, directly or ~~indirectly~~ indirectly, (A) solicit, initiate or knowingly ~~encourage, induce~~ facilitate or ~~facilitate any Company Takeover Proposal or~~ knowingly encourage any inquiry, ~~discussion~~ discussion, offer or ~~proposal~~ request that ~~may~~ constitutes, or would reasonably be expected to lead to, an Alternative Proposal (it being understood and agreed that ministerial acts that are not otherwise prohibited by this Section 5.04 (such as answering unsolicited phone calls, but not proceeding to engage in a substantive conversation) shall not be deemed to “facilitate” for purposes of, or otherwise constitute a violation of, this Section 5.04), (B) furnish non-public information regarding the Company ~~Takeover~~ or any of the Company Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to any Person in connection with an Alternative Proposal, (iiC) ~~directly~~ enter into or ~~indirectly~~ participate in any discussions or negotiations with any Person ~~regarding~~with respect to an Alternative Proposal, (D) approve, agree to, accept, endorse or recommend any Alternative Proposal, (E) effect any Adverse Recommendation Change, (F) enter into any agreement, letter of intent, term sheet or other similar instrument providing for any Alternative Proposal (except for Acceptable Confidentiality Agreements), (G) fail to enforce or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries, or ~~furnish to~~ (H) approve any transaction under, or any Person becoming an “interested stockholder” under, Section 203 of the DGCL. (b) Notwithstanding anything to the contrary in Section 5.04(a), but subject to compliance with Section 5.04(c) and Section 5.04(d), if the Company or any ~~information with respect to,~~ of its Subsidiaries or ~~cooperate in~~ any ~~way with~~ of its or their respective Representatives receives a bona fide Alternative Proposal by any Person or Group that was not solicited in violation of Section 5.04(a) at any time prior to the Company Stockholders Meeting, the Company and its Representatives may, prior to the Company Stockholders Meeting, take the actions set forth in subsections (~~whether or not a Person making a~~ i) and/or (ii) of this Section 5.04(b) if the Company ~~Takeover Proposal) with respect to, any Company Takeover Proposal~~ Board (or any ~~inquiry~~ committee thereof) has determined, in its good faith judgment (after consultation with the Company’s financial advisors and outside legal counsel), that such Alternative Proposal constitutes or ~~proposal that may~~ would reasonably be expected to lead to a ~~Company Takeover~~ Superior Proposal or (iii) waive, terminate, modify, amend, release or assign any provisions of any confidentiality or standstill agreement (or similar agreement) to which it is a party or fail to enforce, to the fullest extent permitted under applicable Law, the provisions of any such agreement, including by obtaining an injunction to prevent any breach of such agreements and to enforce specifically the terms and provisions thereof in any court having jurisdiction. The Company shall, and shall cause its Affiliates and its and their respective Representatives to, immediately cease and cause to be terminated all existing solicitation, discussions or negotiations with any Person conducted heretofore with respect to any Company Takeover Proposal, or any inquiry or proposal provided that may reasonably be expected to lead to a Company Takeover Proposal, request the prompt return or destruction of all confidential information previously furnished in connection therewith and immediately terminate all physical and electronic dataroom access previously granted to any such Person or its Representatives. (b) Notwithstanding the foregoing, if at any time prior to obtaining the Company Shareholder Approval, the Company or any of its Representatives receives a bona fide oral or written Company Takeover Proposal, which Company Takeover Proposal did not result from any breach of this Section 5.02, (i) the Company and its Representatives may contact such Person ~~making~~ or Group prior to such conclusion to clarify the ~~Company Takeover Proposal or its Representatives~~ terms and conditions thereof to request that any bona fide Company Takeover Proposal made orally be made in writing and (ii) in response to a bona fide written Company Takeover Proposal if the Company Board determines in good faith (after consultation with its outside counsel and financial advisor) that the failure to take the following actions would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, and that determine whether such ~~Company Takeover~~ Alternative Proposal constitutes or is reasonably likely to lead to a Superior Company Proposal, the Company may (and may authorize and permit its Affiliates and its and their Representatives to), subject to compliance with Section 5.02(e), (A) enter into an Acceptable Confidentiality Agreement with the Person making the Company Takeover Proposal and furnish information pursuant to an Acceptable Confidentiality Agreement (including non-public information and data) with respect to the Company and the Company Subsidiaries to the Person making such Company Takeover Proposal (and its Representatives) (provided that all such information has previously been provided to Parent or is provided to Parent prior to or substantially concurrent with the time it is provided to such Person), and (B) participate in discussions regarding the terms of such Company Takeover Proposal and the negotiation of such terms with, and only with, the Person making such Company Takeover Proposal (and such Person’s Representatives). Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 5.02 by any Representative of the Company or any of its Affiliates shall constitute a breach of this Section 5.02 by the Company. (c) Except as set forth below, neither the Company Board nor any committee thereof shall (i) (A) withdraw or fail to make when required by this Agreement (or modify in any manner adverse to Parent), or propose or agree to withdraw or fail to make when required by this Agreement (or modify in any manner adverse to Parent), the Company Board Recommendation or (B) adopt, recommend or declare advisable, or propose or agree to adopt, recommend or declare advisable, any Company Takeover Proposal (any action described in this clause (i) being referred to as a “Company Adverse Recommendation Change”) or (ii) adopt, recommend or declare advisable, or propose or agree to adopt, recommend or declare advisable, or allow the Company or any of its Affiliates to execute or enter into, any confidentiality agreement (other than an Acceptable Confidentiality Agreement) letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, alliance agreement, partnership agreement or other similar agreement or arrangement (an “Acquisition Agreement”) constituting, or that may reasonably be expected to lead to, a Company Takeover Proposal. Notwithstanding the foregoing, at any time prior to obtaining the Company Shareholder Approval, the Company Board may (I) make a Company Adverse Recommendation Change or (II) cause the Company to enter into an Acquisition Agreement constituting or that may would reasonably be expected to lead to a ~~Company Takeover Proposal not obtained in violation of this Section 5.02~~ Superior Proposal) and terminate this Agreement pursuant to Section 8.01(c)(ii), in either case if the Company Board determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation), that ~~(x) in the case of clause (I), where the Company Adverse Recommendation Change is made in response to an Intervening Event, or the consequences thereof, and~~ the failure to take such action would reasonably be expected to be inconsistent with the directors’ exercise of their fiduciary duties under applicable ~~Law~~ Law: (i) furnish non-public information to and afford access to the business, employees, officers, contracts, properties, assets, books and records of the Company and the Company Subsidiaries to any Person in response to such Alternative Proposal, pursuant to the prior execution of (and the Company and/or Company Subsidiaries may enter into) an Acceptable Confidentiality Agreement (a copy of which shall be provided to Parent); and (ii) enter into and maintain discussions or negotiations with any Person with respect to such Alternative Proposal. (c) Notwithstanding anything to the contrary in this Agreement, the Company may not take any of the actions set forth in Section 5.04(b), unless (x) the Company shall have delivered to Parent a prior written notice advising Parent that it intends to take such action, and, after taking such action, the Company shall continue to advise Parent on a reasonably current basis of the status and material terms of any discussions and negotiations, and (y) promptly (but in no event more than 24 hours) following receipt by the Company or any of its Subsidiaries or any of their respective Representatives of any Alternative Proposal or any request for information relating to the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of the Company or any of its Subsidiaries by any third party that the Company has reason to believe may be considering making, or has made, an Alternative Proposal, the Company shall advise Parent in writing of the receipt of such Alternative Proposal or request, and subject to the existing terms of confidentiality obligations of the Company as in place as of the date of this Agreement, the terms and conditions of any such Alternative Proposal (including, in each case, the identity of the Person or Group making any such Alternative Proposal), and the Company shall as reasonably promptly as practicable provide to Parent (i) a copy of any such Alternative Proposal, if in writing; or (ii) a summary of the material terms of any such Alternative Proposal if oral. The Company agrees that it shall substantially concurrently provide to Parent any non-public information concerning the Company or any of its Subsidiaries that may be provided (pursuant to Section 5.04(b)) to any other Person or Group in connection with any such Alternative Proposal that has not previously been provided to Parent. In addition, the Company shall keep Parent reasonably informed on a prompt basis of any material developments regarding any such Alternative Proposal or request or any material change to the terms or status of any such Alternative Proposal or request (in each case in a manner that is not unduly disruptive of the Company’s ability to conduct good faith discussions in accordance with this Section 5.04 with the party making such Alternative Proposal and its Representatives). (d) Notwithstanding anything herein to the contrary, subject to compliance with Section 5.04(c), at any time prior to the Company Stockholders Meeting, the Company Board may (x) fail to make, withdraw, qualify or modify, or propose publicly to fail to make, withdraw, qualify or modify, in a manner adverse to Parent, the Company Recommendation or take any action, or make any public statement, filing or release inconsistent with the Company Recommendation (any of the foregoing being an “Adverse Recommendation Change”) (including, for the avoidance of doubt, recommending against the Merger or approving, endorsing or recommending any Alternative Proposal) (A) following receipt of a Superior Proposal or (B) in response to any fact, circumstance, occurrence, event, development, change or condition, or combination thereof, that was not known or reasonably foreseeable to the Company as of or prior to the date hereof (an “Intervening Event”) and (y) if the Company has received a Superior Proposal (after taking into account the terms of any revised offer by Parent pursuant to this Section 5.04(d)), terminate this Agreement pursuant to Section 8.01(d) to enter into a definitive written agreement providing for such Superior Proposal simultaneously with the termination of this Agreement, if, in the case of clauses (x) and (y), the Company Board has determined in good faith, after consultation with outside legal counsel, that the failure to take such action would reasonably be expected to be inconsistent with the directors’ exercise of their fiduciary duties under applicable Law; provided that the Company Board may not make an Adverse Recommendation Change, or terminate this Agreement pursuant to Section 8.01(d), unless: (i) the Company has provided prior written notice to Parent at least three Business Days in advance (the “Notice Period”) of taking such action, which notice shall advise Parent of the circumstances giving rise to the Adverse Recommendation Change, and (A) in the case of ~~(A) clause (I) where such Company Adverse Recommendation Change is made in response to a Company Takeover Proposal, or (B) clause (II), such Company Takeover Proposal constitutes~~ a Superior ~~Company~~ Proposal~~; provided, however~~, that the Company Board has received a Superior Proposal and shall ~~not~~ include a copy of the most current version of the agreement under which such Superior Proposal is proposed to be ~~entitled to make~~ consummated and the identity of the Person making the Superior Proposal, or where no such copy is available, a ~~Company~~ description of the material items and conditions of such Superior Proposal, and (B) in the case of an Adverse Recommendation Change ~~or take any action set forth in clause~~ to be made pursuant to an Intervening Event, a reasonably detailed description of the reasons for making such Adverse Recommendation Change; (IIii) ~~unless (1)~~ during the Notice Period, the Company has ~~given~~ negotiated with Parent ~~at least five Business Days’ prior written notice~~ in good faith (to the extent Parent desires to so negotiate) to make such adjustments in the terms and conditions of this Agreement so that, in the case of a “Superior Proposal, such Superior Proposal ceases to constitute (in the judgment of the Company ~~Notice of Recommendation Change”~~Board) a Superior Proposal (it being understood and agreed that any amendment to ~~any~~ the financial terms or other material ~~term~~ terms of ~~any~~ such Superior ~~Company~~ Proposal shall require a new written notification from the Company ~~Notice of Recommendation Change~~ attaching a binding agreement reflecting such amendment and a new ~~notice~~ period of the longer of (~~which shall be two~~ x) 48 hours or (y) one (1) Business ~~Days instead~~ Day under this Section 5.04(d)), or in the case of ~~five Business Days)) advising Parent that~~ an Intervening Event, the failure to make such Adverse Recommendation Change (in the judgment of the Company Board ~~intends~~ after consultation with the Company’s financial advisors and outside legal counsel) would no longer be inconsistent with the directors’ exercise of their fiduciary duties under applicable Law; and (iii) the Company Board has determined in good faith, after considering the results of such negotiations and giving effect to ~~take such action (which notice shall specify~~ any proposals, amendments or modifications made or agreed to by Parent, if any, and after consultation with the ~~identity~~ Company’s financial advisors and outside legal counsel, that, in the case of ~~the party making~~ a Superior Proposal, such Superior ~~Company~~ Proposal ~~and the material terms thereof and~~remains a Superior Proposal or that, in the case of an Intervening Event, ~~specifying~~ the ~~details thereof), (2) the Company has negotiated, and has caused its Representatives~~ failure to negotiate, in good faith with Parent during such notice period, to the extent Parent wishes to negotiate, to enable Parent to propose in writing a binding offer to effect revisions to the terms of this Agreement such that it would cause such Superior Company Proposal to no longer constitute a Superior Company Proposal or for such Intervening Event to no longer warrant a Company make an Adverse Recommendation Change, and (3) following the end of such notice period, the Company Board or any committee thereof shall have considered in good faith such binding offer or Intervening Event, and shall have determined that the Superior Company Proposal would continue to constitute a Superior Company Proposal if the revisions proposed in such binding offer were to be given effect or that such Intervening Event continues to warrant a Company Adverse Recommendation Change; and provided, further that any purported termination of this Agreement pursuant to this sentence shall be void and of no force and effect unless the termination is in accordance with Section 8.01 and, to the extent required under the terms of this Agreement, the Company pays or causes to be paid to Parent the applicable Company Termination Fee in accordance with Section 6.06 prior to or concurrently with such termination so long as Parent has provided the Company with wire instructions for such payment. (d) In addition to the obligations of the Company set forth in paragraphs (a) through (c) of this Section 5.02, the Company shall (i) promptly (and in any event within 24 hours of receipt thereof by an officer or director of the Company) advise Parent orally and in writing of any Company Takeover Proposal or any inquiry or proposal that may reasonably be expected to lead to a Company Takeover Proposal, the material terms and conditions of any such Company Takeover Proposal or inquiry or proposal (including any changes thereto) and the identity of the Person making any such Company Takeover Proposal or inquiry or proposal, (ii) keep Parent informed in all material respects on a reasonably current basis of the status and details (including any change to the terms thereof) of any Company Takeover Proposal, and (iii) provide to Parent as soon as practicable after receipt or delivery thereof copies of all correspondence and other written and electronic material exchanged between the Company or any of the Company Subsidiaries and any Person that describes any of the material terms or conditions of any Company Takeover Proposal. (e) Nothing contained in this Section 5.02 shall prohibit the Company from (i) issuing a “stop-look-and-listen communication” pursuant to Rule 14d-9(f) promulgated under the Exchange Act or taking and disclosing to its shareholders positions required by Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act, in each case after the commencement of a tender offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act), (ii) issuing a statement in connection with a Company Takeover Proposal that does not involve the commencement of a tender offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act), so long as the statement includes no more information than would be required for a “stop-look-and-listen communication” under Rule 14d-9(f) promulgated under the Exchange Act if such provision was applicable, or (iii) making any disclosure to the shareholders of the Company if, in the good faith judgment of the Company Board (after consultation with outside counsel) failure to so disclose Change would reasonably be expected to be inconsistent with ~~its~~ the directors’ exercise of their fiduciary duties under applicable Law; provided, ~~however~~that, ~~that~~ for the avoidance of doubt, notwithstanding any Adverse Recommendation Change, until the termination of this Agreement in accordance with its terms (x) in no event may the Company (A) enter into any agreement, letter of intent, term sheet or other similar instrument relating to an Alternative Proposal (other than with respect to any advancement of the Company Termination Fee), (B) other than as required by applicable Law, make, facilitate or provide information in connection with any SEC or other regulatory filings in connection with the transactions contemplated by any Alternative Proposal or (B) seek any third party Consents in connection with the transactions contemplated by any Alternative Proposal, and (y) the Company shall otherwise remain subject to all of its obligations under this Agreement. (e) Nothing contained herein shall prevent the Company or the Company Board from issuing a “stop, look and listen” communication pursuant to Rule 14d-9(f) under the Exchange Act or complying with Rule 14d-9 and Rule 14e-2 under the Exchange Act with respect to an Alternative Proposal or from making any ~~committee thereof take~~legally required (based upon advice of outside counsel) disclosure to stockholders with regard to the transactions contemplated by this Agreement or an Alternative Proposal; provided, that no such action taken or ~~agree~~ statement made that would amount to an Adverse Recommendation Change shall be permitted, made or ~~resolve to take~~taken other than in compliance with this Section 5.04. For the avoidance of doubt, ~~any action prohibited by Section 5.02(c)~~a factually accurate public statement that describes the Company’s receipt of an Alternative Proposal and the operation of this Agreement with respect thereto shall not be deemed an Adverse Recommendation Change. (f) For purposes of this Agreement:

Appears in 2 contracts

Samples: Merger Agreement (SS&C Technologies Holdings Inc), Merger Agreement (DST Systems Inc)

No Solicitation by the Company; Company Board Recommendation. (a) ~~The~~ Subject to the final sentence of this Section 5.04(a), and subject to the terms of Section 5.04(b), from the time this Agreement is executed until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Effective Time, the Company and its Subsidiaries shall not, and shall ~~cause its Affiliates and its and~~ not instruct, authorize or knowingly permit any of their respective directors, officers and employees and each of its and their respective investment bankers, accountants, attorneys and other advisors, agents or representatives (collectively, “Representatives”) not Representatives to, ~~(i)~~ directly or ~~indirectly~~ indirectly, (A) solicit, ~~initiate~~ initiate, propose or induce the making, submission or announcement of, or knowingly encourage, ~~induce~~ facilitate or ~~facilitate~~ assist, any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to, an Acquisition Proposal (an “Inquiry”); (B) furnish to any Person (other than Parent, Merger Sub or any designees or Representatives of Parent or Merger Sub) any information relating to the Company or any Company ~~Takeover~~ Subsidiary or afford to any Person access to the business, properties, assets, books, records or other information, or to any personnel, of the Company or any Company Subsidiary, in any such case with the intent to induce the making, submission or announcement of, or to knowingly encourage, facilitate or assist, an Acquisition Proposal or any ~~inquiry, discussion~~ Inquiries; (C) participate or ~~proposal~~ engage in discussions or negotiations with any Person with respect to an Acquisition Proposal (or Inquiries or any other effort or attempt that ~~may~~ could reasonably be expected to lead to a an Acquisition Proposal); or (D) enter into any letter of intent, memorandum of understanding, merger agreement, acquisition agreement or other Contract relating to an Acquisition Transaction, other than an Acceptable Confidentiality Agreement (any such letter of intent, memorandum of understanding, merger agreement, acquisition agreement or other Contract relating to an Acquisition Transaction, an “Alternative Acquisition Agreement”). Subject to the following sentence of this Section 5.04(a), and subject to the terms of Section 5.04(b), immediately following the execution of this Agreement the Company ~~Takeover Proposal~~shall immediately cease, and shall cause each of its Subsidiaries and its and its Subsidiaries’ respective Representatives to immediately cease, (iix) ~~directly or indirectly participate in~~ any ~~discussions~~ solicitations, discussions, communications or negotiations with any Person ~~regarding~~(other than Parent, Merger Sub and their respective Representatives) in connection with or ~~furnish~~ which could reasonably lead to ~~any Person any information with respect to~~an Acquisition Proposal by such Person, ~~or cooperate in any way with~~ and (y) all access of any Person (~~whether or not a Person making a~~ other than Parent, Merger Sub and their respective Representatives) to any electronic data room maintained by the Company ~~Takeover Proposal)~~ with respect toto the transactions contemplated hereby. From the time that this Agreement is executed until the earlier to occur of the valid termination of this Agreement pursuant to Article VIII and the Effective Time, ~~any~~ the Company ~~Takeover Proposal or any inquiry or proposal that may reasonably~~ will not be expected to lead to a Company Takeover Proposal or (iii) waive, terminate, modify, amend, release or assign any provisions of any confidentiality or standstill agreement (or similar agreement) to which it is a party or fail required to enforce, and will be permitted to waive, any provision of any standstill or confidentiality agreement that prohibits or purports to prohibit a proposal being made to the ~~fullest extent permitted under applicable Law, the provisions of~~ Company Board (or any such agreement, including by obtaining an injunction to prevent any breach of such agreements and to enforce specifically the terms and provisions thereof in any court having jurisdiction. The Company shallcommittee thereof) if, and shall cause its Affiliates and its and their respective Representatives to, immediately cease and cause to be terminated all existing solicitation, discussions or negotiations with any Person conducted heretofore with respect to any Company Takeover Proposal, or any inquiry or proposal that may reasonably be expected to lead to a Company Takeover Proposal, request the prompt return or destruction of all confidential information previously furnished in connection therewith and immediately terminate all physical and electronic dataroom access previously granted to any such Person or its Representatives. (b) Notwithstanding the foregoing, if at any time prior to obtaining the Company Shareholder Approvalonly if, the Company Board (or ~~any of its Representatives receives~~ a ~~bona fide oral or written Company Takeover Proposal, which Company Takeover Proposal did not result from any breach of this Section 5.02, (i~~committee thereof) the Company and its Representatives may contact such Person making the Company Takeover Proposal or its Representatives to request that any bona fide Company Takeover Proposal made orally be made in writing and (ii) in response to a bona fide written Company Takeover Proposal if the Company Board determines in good faith (after consultation with its financial advisors and outside ~~counsel and financial advisor~~legal counsel) that the failure to ~~take~~ do so (i) would prohibit the ~~following actions~~ counterparty from making an unsolicited Acquisition Proposal to the Company Board in compliance with this Section 5.04 and (ii) would ~~reasonably be expected to~~ be inconsistent with its fiduciary duties under applicable Law. (b) Notwithstanding anything to the contrary in this Agreement, at any time following the execution of this Agreement and prior to the time of the Company’s receipt of the Company Shareholder Approval, if the Company receives an unsolicited written Acquisition Proposal that was not the result of a material breach of Section 5.04(a) and the Company Board (or a committee thereof) has determined in good faith (after consultation with its financial advisors and outside legal counsel) that such ~~Company Takeover~~ unsolicited Acquisition Proposal either constitutes a Superior Proposal or is could reasonably ~~likely~~ be expected to lead to a Superior ~~Company~~ Proposal, the Company ~~may (~~and ~~may authorize and permit its Affiliates and its and their Representatives to), subject to compliance with Section 5.02(e), (A) enter into an Acceptable Confidentiality Agreement with the Person making~~ the Company ~~Takeover Proposal and~~ Board (or a committee thereof) may, directly or indirectly through one or more of their Representatives, participate or engage in discussions or negotiations with, furnish any non-public information relating to the Company or any Company Subsidiary to, or afford access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company or any Company Subsidiary pursuant to an Acceptable Confidentiality Agreement to any Person or its Representatives that has made, renewed or delivered to the Company an Acquisition Proposal after the date of this Agreement, and otherwise facilitate such Acquisition Proposal or assist such Person (~~including~~ and its Representatives and financing sources) with such Acquisition Proposal if requested by such Person; provided that, subject to applicable Law, the Company shall provide to Parent and Merger Sub any non-public information ~~and data~~or data that is provided to any Person given such access that was not previously made available (whether prior to or after the execution of this Agreement) ~~with respect to the Company and the Company Subsidiaries to the Person making such Company Takeover Proposal (and its Representatives) (provided that all such information has previously been provided~~ to Parent or ~~is provided to Parent~~ Merger Sub prior to or substantially ~~concurrent~~ concurrently with the time it is provided to such Person), and (B) participate in discussions regarding the terms of such Company Takeover Proposal and the negotiation of such terms with, and only with, the Person making such Company Takeover Proposal (and such Person’s Representatives). Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 5.02 by any Representative of the Company or any of its Affiliates shall constitute a breach of this Section 5.02 by the Company. (c) Except as ~~set forth below~~expressly permitted by Section 5.04(d) or Section 5.04(f), ~~neither~~ the Company Board ~~nor any committee thereof~~ shall not: (i) (A) ~~withdraw~~ withhold, withdraw, amend or ~~fail~~ modify, or publicly propose to ~~make when required by this Agreement (~~withhold, withdraw, amend or ~~modify~~ modify, the Company Recommendation in ~~any~~ a manner adverse to ~~Parent), or propose or agree to withdraw or fail to make when required by this Agreement (or modify~~ Parent in any ~~manner adverse to Parent), the Company Board Recommendation or~~ material respect; (B) adopt, approve or recommend to the Company’s shareholders an Acquisition Proposal; (C) fail to include the Company Recommendation in the Proxy Statement; or ~~declare advisable, or propose or agree~~ (D) fail to ~~adopt, recommend or declare advisable, any~~ publicly reaffirm the Company ~~Takeover Proposal~~ Recommendation within seven (7) Business Days after Parent so requests in writing (any action described in ~~this clause~~ clauses (iA) ~~being referred to as~~ through (D), a “Company ~~Adverse~~ Board Recommendation Change”); provided, that, for the avoidance of doubt, none of (1) the determination by the Company Board (or a committee thereof) that an Acquisition Proposal constitutes a Superior Proposal; (2) the public disclosure by the Company of such determination or the receipt of an Acquisition Proposal; or (3) the delivery by the Company of any notice contemplated by Section 5.04(d) will, in and of itself, constitute a Company Board Recommendation Change; or (ii) ~~adopt, recommend~~ cause or ~~declare advisable, or propose or agree to adopt, recommend or declare advisable, or allow~~ permit the Company or any ~~of its Affiliates~~ Company Subsidiary to ~~execute or~~ enter ~~into, any confidentiality agreement (other than~~ into an Acceptable Confidentiality Agreement) letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, alliance agreement, partnership agreement or other similar agreement or arrangement (an “Alternative Acquisition Agreement”. (d) ~~constituting, or that may reasonably be expected~~ Notwithstanding anything to ~~lead to, a Company Takeover Proposal. Notwithstanding~~ the ~~foregoing~~contrary set forth in this Agreement, at any time prior to obtaining the Company Shareholder Approval, : (i) the Company Board (or a committee thereof) may ~~(I) make~~ effect a Company ~~Adverse~~ Board Recommendation Change or (~~II) cause the Company~~ other than in response to ~~enter into~~ an Acquisition ~~Agreement constituting or that may reasonably be expected~~ Proposal) in response to ~~lead to a Company Takeover Proposal not obtained in violation of this Section 5.02 and terminate this Agreement pursuant to Section 8.01(c)(ii), in either case~~ an Intervening Event if the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisors and outside ~~counsel and a financial advisor of nationally recognized reputation),~~ legal counsel) that ~~(x) in the case of clause (I), where the Company Adverse Recommendation Change is made in response to an Intervening Event, or the consequences thereof, and~~ the failure to ~~take such action~~ do so would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law and (y) in the case of (A) clause (I) where such Company Adverse Recommendation Change is made in response to a Company Takeover Proposal, or (B) clause (II), such Company Takeover Proposal constitutes a Superior Company Proposal; provided, however, that the Company shall not be entitled to make a Company Adverse Recommendation Change or take any action set forth in clause (II) unless (1) the Company has given Parent at least five Business Days’ prior written notice (a “Company Notice of Recommendation Change”) (it being understood and agreed that any amendment to any material term of any Superior Company Proposal shall require a new Company Notice of Recommendation Change and a new notice period (which shall be two Business Days instead of five Business Days)) advising Parent that the Company Board intends to take such action (which notice shall specify the identity of the party making such Superior Company Proposal and the material terms thereof and, in the case of an Intervening Event, specifying the details thereof), (2) the Company has negotiated, and has caused its Representatives to negotiate, in good faith with Parent during such notice period, to the extent Parent wishes to negotiate, to enable Parent to propose in writing a binding offer to effect revisions to the terms of this Agreement such that it would cause such Superior Company Proposal to no longer constitute a Superior Company Proposal or for such Intervening Event to no longer warrant a Company Adverse Recommendation Change, and (3) following the end of such notice period, the Company Board or any committee thereof shall have considered in good faith such binding offer or Intervening Event, and shall have determined that the Superior Company Proposal would continue to constitute a Superior Company Proposal if the revisions proposed in such binding offer were to be given effect or that such Intervening Event continues to warrant a Company Adverse Recommendation Change; and provided, further that any purported termination of this Agreement pursuant to this sentence shall be void and of no force and effect unless the termination is in accordance with Section 8.01 and, to the extent required under the terms of this Agreement, the Company pays or causes to be paid to Parent the applicable Company Termination Fee in accordance with Section 6.06 prior to or concurrently with such termination so long as Parent has provided the Company with wire instructions for such payment. (d) In addition to the obligations of the Company set forth in paragraphs (a) through (c) of this Section 5.02, the Company shall (i) promptly (and in any event within 24 hours of receipt thereof by an officer or director of the Company) advise Parent orally and in writing of any Company Takeover Proposal or any inquiry or proposal that may reasonably be expected to lead to a Company Takeover Proposal, the material terms and conditions of any such Company Takeover Proposal or inquiry or proposal (including any changes thereto) and the identity of the Person making any such Company Takeover Proposal or inquiry or proposal, (ii) keep Parent informed in all material respects on a reasonably current basis of the status and details (including any change to the terms thereof) of any Company Takeover Proposal, and (iii) provide to Parent as soon as practicable after receipt or delivery thereof copies of all correspondence and other written and electronic material exchanged between the Company or any of the Company Subsidiaries and any Person that describes any of the material terms or conditions of any Company Takeover Proposal. (e) Nothing contained in this Section 5.02 shall prohibit the Company from (i) issuing a “stop-look-and-listen communication” pursuant to Rule 14d-9(f) promulgated under the Exchange Act or taking and disclosing to its shareholders positions required by Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act, in each case after the commencement of a tender offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act), (ii) issuing a statement in connection with a Company Takeover Proposal that does not involve the commencement of a tender offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act), so long as the statement includes no more information than would be required for a “stop-look-and-listen communication” under Rule 14d-9(f) promulgated under the Exchange Act if such provision was applicable, or (iii) making any disclosure to the shareholders of the Company if, in the good faith judgment of the Company Board (after consultation with outside counsel) failure to so disclose would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law; provided, ~~however~~that the Company Board (or a committee thereof) shall not effect such a Company Board Recommendation Change unless: (1) the Company has provided prior written notice to Parent at least four Business Days in advance to the effect that the Company Board (or a committee thereof) intends to effect a Company Board Recommendation Change, which notice shall specify the basis for such Company Board Recommendation Change, including a reasonably detailed description of the facts and circumstances relating thereto; and (2) prior to effecting such Company Board Recommendation Change, the Company and its Representatives, during such four-Business Day period, has negotiated with Parent and its Representatives in good faith (to the extent that Parent desires to so negotiate) to enable Parent to make such adjustments to the terms and conditions of this Agreement and the Equity Commitment Letter in such a manner that would obviate the need to effect a Company Board Recommendation Change; or (ii) if the Company has received a written Acquisition Proposal that the Company Board has determined in good faith (after consultation with its financial advisors and outside legal counsel) constitutes a Superior Proposal, then the Company Board may (A) effect a Company Board Recommendation Change with respect to such Acquisition Proposal; or (B) provided that the Company has complied in all material respects with its obligations pursuant to this Section 5.04 with respect to such Acquisition Proposal, cause the Company to terminate this Agreement pursuant to Section 8.01(d) in order to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal; provided, that the Company Board (or a committee thereof) shall not take any action described in ~~no event~~ the foregoing clauses (A) and (B) unless: (1) the Company Board (or a committee thereof) determines in good faith (after consultation with its financial advisors and outside legal counsel) that the failure to do so would be inconsistent with its fiduciary duties under applicable Law; (2) (i) the Company has provided prior written notice to Parent four Business Days in advance (it being understood that any material revision, amendment, update or supplement to the terms or conditions of such Superior Proposal shall be deemed to constitute a new Superior Proposal and shall require a new notice but with a two-Business Day (instead of four-Business Day) period from the date of such notice) (any such notice period, the “Notice Period”) to the effect that the Company Board (or a committee thereof) intends to take the actions described in clauses (A) or (B) of Section 5.04(d)(ii), including the identity of the Person or Group making such Acquisition Proposal, the material terms thereof and copies of all material relevant agreements relating to such Acquisition Proposal; and (ii) prior to effecting such Company Board Recommendation Change or termination, the Company and its Representatives, during the Notice Period, must have negotiated with Parent and its Representatives in good faith (to the extent that Parent desires to so negotiate) to enable Parent to make such adjustments to the terms and conditions of this Agreement and the Equity Commitment Letter in such a manner that would obviate the need to effect a Company Board Recommendation Change or termination; provided, that neither the Company, any of its Affiliates or any of their respective Representatives may disclose to any other Person the terms or other information with respect to any offer of, or negotiations with, Parent pursuant to this Section 5.04(d)(ii)(2) unless and until a definitive agreement with respect to such offer or negotiations is executed; and (3) following any Notice Period, including any subsequent Notice Period, pursuant to the foregoing Section 5.04(d)(ii)(2), the Company Board (or a committee thereof) (after consultation with its financial advisor and outside legal counsel and taking into account Parent’s proposed revisions to the terms and conditions of this Agreement and the Equity Commitment Letter) shall have determined that the Acquisition Proposal continues to be a Superior Proposal, and in the case of a Company Board Recommendation Change, that the failure to effect such Company Board Recommendation Change would be inconsistent with its fiduciary duties pursuant to applicable Law. (e) From the time this Agreement is executed until the earlier to occur of the valid termination of this Agreement pursuant to Article VIII and the Effective Time, the Company shall as promptly as reasonably practicable (and, in any event, within 48 hours) notify Parent if any Acquisition Proposal or any Inquiries are received by the Company or any of its Representatives. Such notice must include (i) the identity of the Person or Group making such Acquisition Proposal or Inquiries; (ii) the material terms and conditions of such offers or proposals; and (iii) if available, copies of any written materials relating thereto provided to the Company or its Representatives. Thereafter, the Company must keep Parent reasonably informed, on a prompt basis, of the status and material change to the terms of any such Acquisition Proposal or inquiries, offers or proposals (including any material amendments thereto) and the status of any related substantive discussions or negotiations. The Company shall notify Parent that it has entered into an Acceptable Confidentiality Agreement with any Person within 24 hours after the execution thereof. (f) Nothing contained in this Agreement will prohibit the Company or the Company Board (or a committee thereof) from taking and disclosing to the Company’s shareholders a position contemplated by Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act (or any ~~committee thereof take~~similar communication in connection with the making or amendment of a tender offer or exchange offer), making a customary “stop-look-and-listen” communication to the Company’s shareholders pursuant to Rule 14d-9(f) under the Exchange Act (or ~~agree~~ any similar communication) or ~~resolve~~ from making any legally required disclosure to ~~take, any action prohibited by Section 5.02(c)~~the Company’s shareholders pursuant to applicable securities Laws with regard to the transactions contemplated hereby or an Acquisition Proposal; provided that the foregoing shall in no way eliminate or modify the effect that such disclosure would otherwise have under this Agreement. (fg) ~~For purposes~~ The Company agrees that any material breach of this ~~Agreement:~~Section 5.04 by any of its Representatives (acting as such) will be deemed to be a breach of this Agreement by the Company.

Appears in 1 contract

Samples: Merger Agreement (Bottomline Technologies Inc)

No Solicitation by the Company; Company Board Recommendation. (a) ~~The~~ From the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 7.01, except as otherwise provided in this Section 5.02, the Company shall not, and shall cause the Company Subsidiaries not to, and shall direct and use its ~~Affiliates and~~ reasonable best efforts to cause its ~~and~~ or their respective ~~directors, officers and employees and each of its and their respective investment bankers, accountants, attorneys and other advisors, agents or representatives (collectively, “Representatives”)~~ Representatives not to, (i) directly or indirectly solicit, initiate or knowingly encourage, ~~induce~~ or facilitate any Company Takeover Proposal or any ~~inquiry, discussion~~ inquiry or proposal that ~~may~~ would reasonably be expected to lead to a Company Takeover Proposal, in each case, except for this Agreement and the transactions contemplated by this Agreement, (ii) participate in any discussions or negotiations with any Person (except for the Company Subsidiaries and its and their respective Representatives or Parent and Parent’s Affiliates and its and their respective Representatives) regarding, or furnish to any such Person, any nonpublic information with respect to any Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to lead to a Company Takeover Proposal, (ii) directly or indirectly participate in any discussions or negotiations with any Person regarding, or furnish to any Person any information with respect to, or cooperate in any way with any Person (whether or not a Person making a Company Takeover Proposal) with respect to, any Company Takeover Proposal or any inquiry or proposal that may reasonably be expected to lead to a Company Takeover Proposal or (iii) waive, terminate, ~~modify~~modify or release any Person (other than Parent, amend, release or assign any provisions of any confidentiality or standstill agreement (or similar agreement) to which it is a party or fail to enforce, to the fullest extent permitted under applicable Law, the provisions of any such agreement, including by obtaining an injunction to prevent any breach of such agreements and to enforce specifically the terms and provisions thereof in any court having jurisdiction. The Company shall, and shall cause its Affiliates and its Merger Sub and their respective ~~Representatives to~~Affiliates) from any provision of or grant any permission, ~~immediately cease and cause~~ waiver or request under any “standstill” or similar agreement or obligation (provided that the Company shall not be required to ~~be terminated all existing solicitation, discussions or negotiations with any Person conducted heretofore with respect to any Company Takeover Proposal~~take, or be prohibited from taking, any ~~inquiry~~ action otherwise prohibited or proposal that may reasonably be expected to lead to a Company Takeover Proposal, request the prompt return or destruction of all confidential information previously furnished in connection therewith and immediately terminate all physical and electronic dataroom access previously granted to any such Person or its Representatives. required under this subclause (biii) Notwithstanding the foregoing, if at any time prior to obtaining the Company Shareholder Approval, the Company or any of its Representatives receives a bona fide oral or written Company Takeover Proposal, which Company Takeover Proposal did not result from any breach of this Section 5.02, (i) the Company and its Representatives may contact such Person making the Company Takeover Proposal or its Representatives to request that any bona fide Company Takeover Proposal made orally be made in writing and (ii) in response to a bona fide written Company Takeover Proposal if the Company Board determines in good faith (after consultation with ~~its~~ the Company’s outside ~~counsel and financial advisor~~legal counsel) that ~~the failure to take the following actions~~ such action or inaction would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law) or (iv) subject to Section 7.01(c)(i), enter into any Company Acquisition Agreement; provided, however, that (A) solely ministerial acts, such as answering unsolicited phone calls, shall not be deemed to “facilitate” for purposes of, or otherwise to constitute a breach of, this Section 5.02(a) and (B) the Company and its Representatives shall be permitted to contact the Person who has made such Company Takeover Proposal solely to clarify the terms of such Company Takeover Proposal so that the Company Board may inform itself about such Company Takeover Proposal. The Company shall, and shall cause the Company Subsidiaries to, and shall direct, and use its reasonable best efforts to cause, its and their respective Representatives to, immediately cease all existing solicitations, discussions or negotiations with any Person (except for the Company Subsidiaries and its and their respective Representatives or Parent and Parent’s Affiliates and its and their respective Representatives) conducted prior to the date of this Agreement with respect to any Company Takeover Proposal, request in writing the prompt return or destruction of all confidential information previously furnished and immediately terminate all physical and electronic data room access previously granted to any such Person or its Representatives. Notwithstanding anything to the contrary in this Agreement, at any time prior to obtaining the Company Stockholder Approval, in response to the receipt of a bona fide written Company Takeover Proposal made after the date of this Agreement that the Company Board determines in good faith (after consultation with the Company’s financial advisors and outside legal counsel) that (x) such Company Takeover Proposal, inquiry or proposal either constitutes a Superior Company Proposal or would reasonably be expected to result in a Superior Company Proposal and (y) the failure to take the actions described in clauses (A) and (B) below would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law, and ~~that such~~ which Company Takeover ~~Proposal constitutes~~ Proposal, inquiry or ~~is reasonably likely to lead to~~ 829649.04-LACSR01A - MSW proposal was made after the date of this Agreement and did not otherwise result from a ~~Superior Company Proposal~~material breach of this Section 5.02, the Company ~~may (and may authorize and permit its Affiliates~~ and its ~~and their~~ Representatives ~~to), subject to compliance with Section 5.02(e),~~ may (A) ~~enter into an Acceptable Confidentiality Agreement with the Person making the Company Takeover Proposal and~~ furnish information ~~pursuant to an Acceptable Confidentiality Agreement (including non-public information and data)~~ with respect to the Company ~~and the Company Subsidiaries~~ Entities to the Person making such Company Takeover Proposal (and ~~its~~ such Person’s Representatives) (provided that all such information has previously been provided to Parent or is provided to Parent ~~prior to or~~ substantially ~~concurrent~~ concurrently with the time it is provided to such ~~Person~~Person(s)), if prior to so furnishing such information, the Company receives from the third party an executed confidentiality agreement that includes terms that are no less restrictive of such Person than the terms contained in the Confidentiality Agreement; and (B) participate in discussions regarding the terms of such Company Takeover ~~Proposal~~ Proposal, including terms of a Company Acquisition Agreement with respect thereto, and the negotiation of such terms ~~with,~~ and ~~only with,~~ such Company Acquisition Agreement with the Person making such Company Takeover Proposal (and such Person’s Representatives). Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 5.02 by any Representative of the Company or any of its Affiliates shall constitute a breach of this Section 5.02 by the Company. (cb) Except as set forth ~~below~~in Section 5.02(a), ~~neither~~ Section 5.02(c), Section 5.02(d) and Section 5.02(f), the Company Board ~~nor any committee thereof~~ shall not: (i) ~~(A) withdraw or fail to make when required by this Agreement (~~withdraw, change, qualify, withhold or modify in any manner adverse to ~~Parent)~~Parent or Merger Sub, or propose ~~or agree~~ publicly to ~~withdraw or fail to make when required by this Agreement (~~withdraw, change, qualify, withhold or modify in any manner adverse to ~~Parent)~~Parent or Merger Sub, or fail to make when required pursuant to this Agreement, the Company Board ~~Recommendation or~~ Recommendation; (Bii) adopt, approve, recommend or declare advisable, or propose ~~or agree~~ publicly to adopt, approve, recommend or declare advisable, any Company Takeover ~~Proposal~~ Proposal; (iii) fail to include the Company Board Recommendation in the Proxy Statement; or (iv) except as set forth in Section 5.02(a), Section 5.02(c) and Section 5.02(f), including any confidentiality agreement contemplated by Section 5.02(a), authorize, permit, approve, recommend or declare advisable, or propose publicly to authorize, permit, approve, recommend or declare advisable, or cause or allow the Company or any Company Subsidiary to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, agreement or commitment constituting, or that would reasonably be expected to lead to, any Company Takeover Proposal, or requiring, or that would reasonably be expected to cause, the Company to abandon or terminate this Agreement or delay in any material respects or fail to consummate the transactions contemplated hereby (each, a “Company Acquisition Agreement”) (any action ~~described~~ in ~~this clause~~ the foregoing clauses (i) through (iv) being referred to as a “Company Adverse Recommendation Change”) or (ii) adopt, recommend or declare advisable, or propose or agree to adopt, recommend or declare advisable, or allow the Company or any of its Affiliates to execute or enter into, any confidentiality agreement (other than an Acceptable Confidentiality Agreement) letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, alliance agreement, partnership agreement or other similar agreement or arrangement (an “Acquisition Agreement”) constituting, or that may reasonably be expected to lead to, a Company Takeover Proposal. Notwithstanding the foregoing, at any time prior to obtaining the Company Shareholder Approval, the Company Board may (I) make a Company Adverse Recommendation Change or (II) cause the Company to enter into an Acquisition Agreement constituting or that may reasonably be expected to lead to a Company Takeover Proposal not obtained in violation of this Section 5.02 and terminate this Agreement pursuant to Section 8.01(c)(ii), in either case if the Company Board determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation), that (x) in the case of clause (I), where the Company Adverse Recommendation Change is made in response to an Intervening Event, or the consequences thereof, and the failure to take such action would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law and (y) in the case of (A) clause (I) where such Company Adverse Recommendation Change is made in response to a Company Takeover Proposal, or (B) clause (II), such Company Takeover Proposal constitutes a Superior Company Proposal; provided, however, that the Company shall not be entitled to make a Company Adverse Recommendation Change or take any action set forth in clause (II) unless (1) the Company has given Parent at least five Business Days’ prior written notice (a “Company Notice of Recommendation Change”) (it being understood and agreed that any amendment to any material term of any Superior Company Proposal shall require a new Company Notice of Recommendation Change and a new notice period (which shall be two Business Days instead of five Business Days)) advising Parent that the Company Board intends to take such action (which notice shall specify the identity of the party making such Superior Company Proposal and the material terms thereof and, in the case of an Intervening Event, specifying the details thereof), (2) the Company has negotiated, and has caused its Representatives to negotiate, in good faith with Parent during such notice period, to the extent Parent wishes to negotiate, to enable Parent to propose in writing a binding offer to effect revisions to the terms of this Agreement such that it would cause such Superior Company Proposal to no longer constitute a Superior Company Proposal or for such Intervening Event to no longer warrant a Company Adverse Recommendation Change, and (3) following the end of such notice period, the Company Board or any committee thereof shall have considered in good faith such binding offer or Intervening Event, and shall have determined that the Superior Company Proposal would continue to constitute a Superior Company Proposal if the revisions proposed in such binding offer were to be given effect or that such Intervening Event continues to warrant a Company Adverse Recommendation Change; and provided, further that any purported termination of this Agreement pursuant to this sentence shall be void and of no force and effect unless the termination is in accordance with Section 8.01 and, to the extent required under the terms of this Agreement, the Company pays or causes to be paid to Parent the applicable Company Termination Fee in accordance with Section 6.06 prior to or concurrently with such termination so long as Parent has provided the Company with wire instructions for such payment. (d) In addition to the obligations of the Company set forth in paragraphs (a) through (c) of this Section 5.02, the Company shall (i) promptly (and in any event within 24 hours of receipt thereof by an officer or director of the Company) advise Parent orally and in writing of any Company Takeover Proposal or any inquiry or proposal that may reasonably be expected to lead to a Company Takeover Proposal, the material terms and conditions of any such Company Takeover Proposal or inquiry or proposal (including any changes thereto) and the identity of the Person making any such Company Takeover Proposal or inquiry or proposal, (ii) keep Parent informed in all material respects on a reasonably current basis of the status and details (including any change to the terms thereof) of any Company Takeover Proposal, and (iii) provide to Parent as soon as practicable after receipt or delivery thereof copies of all correspondence and other written and electronic material exchanged between the Company or any of the Company Subsidiaries and any Person that describes any of the material terms or conditions of any Company Takeover Proposal. (e) Nothing contained in this Section 5.02 shall prohibit the Company from (i) issuing a “stop-look-and-listen communication” pursuant to Rule 14d-9(f) promulgated under the Exchange Act or taking and disclosing to its shareholders positions required by Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act, in each case after the commencement of a tender offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act), (ii) issuing a statement in connection with a Company Takeover Proposal that does not involve the commencement of a tender offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act), so long as the statement includes no more information than would be required for a “stop-look-and-listen communication” under Rule 14d-9(f) promulgated under the Exchange Act if such provision was applicable, or (iii) making any disclosure to the shareholders of the Company if, in the good faith judgment of the Company Board (after consultation with outside counsel) failure to so disclose would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law; provided, however, that in no event shall the Company or the Company Board or any committee thereof take, or agree or resolve to take, any action prohibited by Section 5.02(c). ~~(f) For purposes of this Agreement:~~

Appears in 1 contract

Samples: Merger Agreement (TransDigm Group INC)

Appears in 1 contract

Samples: Merger Agreement (El Paso Electric Co /Tx/)

No Solicitation by the Company; Company Board Recommendation. (a) ~~The~~ During the No-Shop Period, the Company shall not, and shall ~~cause~~ instruct its ~~Affiliates~~ affiliates and its and their respective ~~directors, officers and employees and each of its and their respective investment bankers, accountants, attorneys and other advisors, agents or representatives (collectively, “Representatives”)~~ Representatives not to, (i) directly or indirectly solicit, ~~initiate~~ initiate, or knowingly ~~encourage, induce~~ facilitate or ~~facilitate~~ encourage any Company ~~Takeover~~ Alternative Transaction Proposal or any ~~inquiry, discussion~~ inquiry or proposal that ~~may~~ would reasonably be expected to lead to a Company ~~Takeover Proposal,~~ Alternative Transaction Proposal or (ii) directly or indirectly participate in any discussions or negotiations with any ~~Person~~ person regarding, or furnish to any ~~Person~~ person any non-public information with respect to, or knowingly cooperate in any way with any ~~Person (whether~~ person in connection with soliciting, initiating, facilitating or ~~not a Person making a Company Takeover Proposal) with respect to~~encouraging, any Company ~~Takeover~~ Alternative Transaction Proposal or the submission or making of any inquiry or proposal that ~~may~~ would reasonably be expected to lead to a Company Takeover Proposal or (iii) waive, terminate, modify, amend, release or assign any provisions of any confidentiality or standstill agreement (or similar agreement) to which it is a party or fail to enforce, to Alternative Transaction Proposal. During the ~~fullest extent permitted under applicable Law~~No-Shop Period, the provisions of any such agreement, including by obtaining an injunction to prevent any breach of such agreements and to enforce specifically the terms and provisions thereof in any court having jurisdiction. The Company shall, and shall ~~cause~~ instruct its ~~Affiliates~~ affiliates and its and their respective Representatives to, immediately cease and cause to be terminated all existing ~~solicitation,~~ discussions or negotiations with any ~~Person~~ person conducted heretofore with respect to any Company ~~Takeover~~ Alternative Transaction Proposal, or any inquiry or proposal that ~~may~~ would reasonably be expected to lead to a Company ~~Takeover~~ Alternative Transaction Proposal, request the prompt return or destruction of all confidential information previously furnished ~~in connection therewith~~ and immediately terminate all physical and electronic dataroom access previously granted to any such ~~Person~~ person or its ~~Representatives. (b)~~ Representatives that was provided by or on behalf of the Company in connection with any Company Alternative Transaction Proposal or any inquiry or proposal that would reasonably be expected to lead to a Company Alternative Transaction Proposal. Notwithstanding the ~~foregoing~~foregoing or any other provision of this Agreement to the contrary, if at any time prior to obtaining the Company ~~Shareholder Approval,~~ Stockholder Approval the Company or any of its Representatives receives a ~~bona fide oral or written~~ Company ~~Takeover Proposal, which Company Takeover~~ Alternative Transaction Proposal that did not result from any breach of this Section ~~5.02~~5.5(a), (i) the Company and its Representatives may contact ~~such Person~~ the person or group making the Company ~~Takeover~~ Alternative Transaction Proposal solely to clarify the terms and conditions thereof or ~~its Representatives~~ to request that any ~~bona fide~~ Company ~~Takeover~~ Alternative Transaction Proposal made orally be made in writing and (ii) ~~in response to a bona fide written Company Takeover Proposal~~ if the Company Board determines in good faith (after consultation with its outside counsel and financial ~~advisor~~advisors) that ~~the failure to take the following actions~~ such Company Alternative Transaction Proposal constitutes or would reasonably be expected ~~to be inconsistent with its fiduciary duties under applicable Law, and that such Company Takeover Proposal constitutes or is reasonably likely~~ to lead to a Superior Company Proposal, then the Company ~~may (~~and ~~may authorize and permit~~ any of its ~~Affiliates and its and their~~ Representatives ~~to)~~may, subject to compliance with Section ~~5.02(e~~5.5(c), (Ax) ~~enter into an Acceptable Confidentiality Agreement with the Person making the Company Takeover Proposal and~~ furnish information ~~pursuant to an Acceptable Confidentiality Agreement (including non-public information and data)~~ with respect to the Company and ~~the Company~~ its Subsidiaries to the ~~Person~~ person or group making such Company ~~Takeover~~ Alternative Transaction Proposal (and its or their Representatives) (provided that all such information has previously been provided to Parent or is provided to Parent prior to or substantially concurrent with the time it is provided to such ~~Person)~~person) pursuant to a customary confidentiality agreement not less restrictive of such person than the Confidentiality Agreement is to Parent, including with respect to any standstill or similar provisions contained therein, and (By) participate in discussions regarding the terms of such Company ~~Takeover~~ Alternative Transaction Proposal and the negotiation of such terms ~~with, and only with,~~ with the ~~Person~~ person or group making such Company ~~Takeover~~ Alternative Transaction Proposal (and such ~~Person~~person’s or group’s Representatives). Without limiting the foregoing, ~~it is agreed~~ the Company and Parent agree that any violation of the restrictions set forth in this Section ~~5.02 by any Representative of~~ 5.5(a) applicable to the Company or by any of its ~~Affiliates~~ Representatives, to the extent acting on its behalf or at its direction, shall constitute a breach of this Section ~~5.02~~ 5.5(a) by the Company. (cb) Except as set forth below, neither the Company Board nor any committee thereof shall (i) (A) withdraw ~~or fail to make when required by this Agreement~~ (or modify in any manner adverse to Parent), or propose ~~or agree~~ publicly to withdraw ~~or fail to make when required by this Agreement~~ (or modify in any manner adverse to Parent), the approval, recommendation or declaration of advisability by the Company Board ~~Recommendation~~ or any such committee thereof with respect to this Agreement and the transactions contemplated hereby or (B) ~~adopt~~approve, recommend or declare advisable, or propose ~~or agree~~ publicly to ~~adopt~~approve, recommend or declare advisable, any Company ~~Takeover~~ Alternative Transaction Proposal (any action ~~described~~ in this clause (i) being referred to as a “Company Adverse Recommendation Change”) or (ii) ~~adopt, recommend or declare advisable, or propose or agree to adopt, recommend or declare advisable, or~~ allow the Company or any of its ~~Affiliates~~ Subsidiaries to execute or enter into, any ~~confidentiality~~ binding agreement in connection with any Company Alternative Transaction Proposal (other than ~~an Acceptable Confidentiality Agreement) letter of intent, memorandum of understanding,~~ a confidentiality agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, alliance agreement, partnership agreement or other similar agreement or arrangement (an “Acquisition Agreement”) constituting, or that may reasonably be expected expressly permitted pursuant to ~~lead to, a Company Takeover Proposal~~Section 5.5(a)). Notwithstanding the ~~foregoing~~foregoing or any other provision of this Agreement to the contrary, at any time prior to obtaining the Company ~~Shareholder~~ Stockholder Approval, the Company Board may ~~(I)~~ make a Company Adverse Recommendation Change or (IIand, in the case of clause (1) ~~cause the Company to enter into an Acquisition Agreement constituting or that may reasonably be expected to lead to a Company Takeover Proposal not obtained in violation~~ of this ~~Section 5.02 and~~ sentence, terminate this Agreement pursuant to Section ~~8.01(c)(ii~~7.1(g)) (1) if the Company Board determines hereunder that a Company Alternative Transaction Proposal constitutes a Superior Company Proposal or (2) in response to any event, fact, circumstance, development or occurrence that is material to the Company and its Subsidiaries, taken as a whole, that was not known to, or reasonably foreseeable by, the Company Board as of the date of this Agreement, which event, fact, circumstance, development or occurrence becomes known to the Company Board prior to obtaining the Company Stockholder Approval and does not involve or relate to a Company Alternative Transaction Proposal, in either ~~case if~~ case, the Company Board determines in good faith (after consultation with its outside counsel and a financial ~~advisor of nationally recognized reputation),~~ advisors) that ~~(x) in the case of clause (I), where the Company Adverse Recommendation Change is made in response to an Intervening Event, or the consequences thereof, and~~ the failure to ~~take such action~~ do so would be reasonably ~~be expected~~ likely to be inconsistent with ~~the directors’~~ its fiduciary duties under applicable Law and (y) in the case of (A) clause (I) where such Company Adverse Recommendation Change is made in response to a Company Takeover Proposal, or (B) clause (II), such Company Takeover Proposal constitutes a Superior Company ProposalLaw; provided, however, that the Company shall not be entitled to exercise its right to make a Company Adverse Recommendation Change ~~or take any action set forth~~ or, in ~~clause~~ the case of a Company Alternative Transaction Proposal which constitutes a Superior Company Proposal, terminate this Agreement pursuant to Section 7.1(g) unless, in either case, (~~II) unless (1~~A) the Company has given Parent at least ~~five~~ three (3) Business Days’ prior written notice (a “Company Notice of ~~Recommendation~~ Change”) that the Company Board intends to take such action and specifying the reasons therefor, including, in the case of a Superior Company Proposal, the material terms of any Superior Company Proposal that is the basis of the proposed action by the Company Board, including the identity of the person making such Superior Company Proposal and a copy of the agreement or proposal with respect to such Superior Company Proposal (it being understood and agreed that ~~any~~ a material amendment to any material term of ~~any~~ such Superior Company Proposal shall require a new Company Notice of ~~Recommendation~~ Change and a new ~~notice period~~ two (~~which shall be two~~ 2) Business Days instead of five Business Days)) advising Parent that the Company Board intends to take such action (which notice shall specify the identity of the party making such Superior Company Proposal and the material terms thereof and, in the case of an Intervening Event, specifying the details thereofDay period), (B) during such three (3) Business Day or two (2) Business Day period, as applicable, the Company has negotiated, and has caused its Representatives to negotiate, with Parent in good ~~faith with Parent during such notice period~~faith, to the extent Parent ~~wishes~~ desires to negotiate, to enable Parent to propose in writing a binding offer to ~~effect revisions to~~ make such adjustments in the terms and conditions of this Agreement so that, if applicable, such ~~that it would cause such Superior~~ Company Alternative Transaction Proposal ceases to ~~no longer~~ constitute a Superior Company Proposal ~~or for such Intervening Event to no longer warrant~~ or, in connection with a Company Adverse Recommendation ~~Change~~Change not involving or relating to a Company Alternative Transaction Proposal, would cause the Company Board no longer to believe that the failure to make a Company Adverse Recommendation Change would be reasonably likely to be inconsistent with its fiduciary duties under applicable Law, and (3C) ~~following~~ at the end of such ~~notice~~ three (3) Business Day or two (2) Business Day period, as applicable, the Company Board ~~or any committee thereof~~ shall have considered in good faith such binding offer ~~or Intervening Event,~~ and shall have determined that the Superior Company Proposal ~~would continue~~ continues to constitute a Superior Company Proposal or, other than in the case of a Company Alternative Transaction Proposal, that it would continue to be reasonably likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law if the ~~revisions proposed in such binding offer were~~ Company Board failed to ~~be given effect or that such Intervening Event continues to warrant~~ make a Company Adverse Recommendation Change~~; and provided, further that any purported termination of~~ . Subject to the Company’s right to terminate this Agreement pursuant to ~~this sentence shall be void and of no force and effect unless the termination is in accordance with~~ Section ~~8.01 and~~7.1(g), ~~to the extent required under the terms of this Agreement~~notwithstanding any Company Adverse Recommendation Change, the Company ~~pays or causes~~ shall cause the adoption of this Agreement and the approval of the Combination to be ~~paid~~ submitted to ~~Parent~~ a vote of the ~~applicable Company Termination Fee in accordance with Section 6.06 prior to or concurrently with such termination so long as Parent has provided~~ Company’s stockholders at the Company ~~with wire instructions for such payment~~Stockholders’ Meeting. (dc) In addition to the obligations of the Company set forth in ~~paragraphs (a~~Sections 5.5(a) ~~through (c) of this Section 5.02~~and 5.5(b), at any time prior to obtaining the Company Stockholder Approval, the Company shall ~~(i)~~ promptly (and in any event within ~~24 hours of receipt thereof by an officer or director~~ one (1) Business Day after knowledge of the ~~Company~~Company of the receipt thereof) advise Parent ~~orally and~~ in writing of its receipt of any Company ~~Takeover Proposal or any inquiry or proposal that may reasonably be expected to lead to a Company Takeover~~ Alternative Transaction Proposal, the material terms and conditions of any such Company ~~Takeover~~ Alternative Transaction Proposal ~~or inquiry or proposal~~ (including ~~any changes thereto)~~ a copy thereof, if made in writing), and the identity of the ~~Person~~ person or group making such Company Alternative Transaction Proposal. The Company shall keep Parent informed on a reasonably prompt basis of any material developments with respect to any such Company ~~Takeover~~ Alternative Transaction Proposal ~~or inquiry or proposal, (ii) keep Parent informed in all material respects on a reasonably current basis of the status and details~~ (including any ~~change~~ material changes to the terms thereof) ~~of any~~ (and the Company ~~Takeover Proposal, and (iii) provide to Parent~~ shall as ~~soon~~ promptly as practicable after ~~receipt or delivery thereof copies of all correspondence and other written and electronic material exchanged between the Company or any~~ knowledge of the Company ~~Subsidiaries and any Person that describes any~~ of the ~~material terms or conditions~~ receipt thereof provide Parent with copies of any material written materials relating to such Company ~~Takeover Proposal~~Alternative Transaction Proposal or any material changes to the terms thereof). (ed) Nothing contained in this Section ~~5.02~~ 5.5 shall prohibit the Company from (ix) ~~issuing~~ taking and disclosing to its stockholders a position contemplated by Rule 14e‑2(a) promulgated under the Exchange Act or making “stop-look-and-~~listen communication~~listen” ~~pursuant to~~ communications of the nature contemplated by Rule ~~14d-9(f) promulgated under~~ 14d-9 of the Exchange Act or ~~taking and disclosing to its shareholders positions required by Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act, in each case after the commencement of a tender offer~~ (within the meaning of Rule 14d-2 promulgated under the Exchange Act), (ii) issuing a statement in connection with a Company Takeover Proposal that does not involve the commencement of a tender offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act), so long as the statement includes no more information than would be required for a “stop-look-and-listen communication” under Rule 14d-9(f) promulgated under the Exchange Act if such provision was applicable, or (iiiy) making any disclosure to the ~~shareholders~~ stockholders of the Company if, in the good faith judgment of the Company Board (after consultation with its outside counsel) failure to so disclose would ~~reasonably be expected to~~ be inconsistent with its ~~fiduciary duties~~ obligations under applicable Law; provided, however, that any such disclosure that addresses or relates to the approval, recommendation or declaration of advisability of the Company Board with respect to this Agreement, the Combination or a Company Alternative Transaction Proposal shall be deemed to be a Company Adverse Recommendation Change unless the Company Board in ~~no event~~ connection with such communication publicly states that its recommendation with respect to this Agreement and the Combination has not changed; provided, further, that this Section 5.5(d) shall not be deemed to permit the Company or the Company Board or any committee thereof ~~take, or agree or resolve~~ to ~~take, any action prohibited by~~ effect a Company Adverse Recommendation Change except in accordance with Section ~~5.02(c~~5.5(b). (fe) For purposes of this Agreement:

Appears in 1 contract

Samples: Merger Agreement (Windstream Holdings, Inc.)

No Solicitation by the Company; Company Board Recommendation. (a) ~~The~~ From the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 7.01, except as otherwise provided in this Section 5.02, the Company shall not, and shall direct and use its commercially reasonable efforts to cause its Affiliates and its and their respective directors, officers and employees and each of its and their respective investment bankers, accountants, attorneys and other advisors, agents or representatives (collectively, “Representatives”) Representatives not to, (i) directly or ~~indirectly~~ indirectly, solicit, initiate or knowingly encourage, ~~induce~~ or knowingly facilitate any Company Takeover Proposal or any ~~inquiry, discussion~~ inquiry or proposal that ~~may~~ would reasonably be expected to lead to a Company Takeover Proposal, in each case, except for this Agreement and the transactions contemplated by this Agreement, (ii) participate in any discussions or negotiations with any Person (except for the Company’s Representatives or Parent and Parent’s Affiliates and its and their respective Representatives) regarding, or furnish to any such Person, any nonpublic information with respect to any Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to lead to a Company Takeover Proposal, (ii) directly or indirectly participate in any discussions or negotiations with any Person regarding, or furnish to any Person any information with respect to, or cooperate in any way with any Person (whether or not a Person making a Company Takeover Proposal) with respect to, any Company Takeover Proposal or any inquiry or proposal that may reasonably be expected to lead to a Company Takeover Proposal or (iii) waive, terminate, ~~modify~~modify or release any Person (other than Parent, ~~amend~~Merger Sub and their respective Affiliates) from any provision of or grant any permission, ~~release~~ waiver or ~~assign~~ request under any ~~provisions of any confidentiality or standstill agreement (~~“standstill” or similar ~~agreement)~~ agreement or obligation unless the failure to ~~which it is a party or fail~~ do so would reasonably be expected to ~~enforce, to~~ be inconsistent with the ~~fullest extent permitted~~ Company Board’s fiduciary duties under applicable ~~Law,~~ Law provided that the ~~provisions~~ Company shall not be required to enforce any provision of any such ~~agreement~~agreement that would prohibit a third party from requesting any such modification, ~~including by obtaining an injunction~~ termination, waiver or release, or (iv) subject to ~~prevent~~ Section 7.01(c)(i), enter into any Company Acquisition Agreement; provided, however, that solely ministerial acts, such as answering unsolicited phone calls, shall not be deemed to “facilitate” for purposes of, or otherwise to constitute a breach ~~of such agreements and to enforce specifically the terms and provisions thereof in any court having jurisdiction~~of, this Section 5.02(a). The Company shall, and shall ~~cause~~ direct its ~~Affiliates and its and their respective~~ Representatives to, immediately cease ~~and cause to be terminated~~ all existing ~~solicitation~~solicitations, discussions or negotiations with any Person (except for the Company’s Representatives or Parent and Parent’s Affiliates and its and their respective Representatives) conducted ~~heretofore~~ prior to the date of this Agreement with respect to any Company Takeover Proposal, ~~or any inquiry or proposal that may reasonably be expected to lead to a Company Takeover Proposal~~and, within five (5) Business Days after the date hereof, request and confirm in writing the prompt return or destruction of all confidential information previously furnished ~~in connection therewith~~ and immediately terminate all physical and electronic ~~dataroom~~ data room access previously granted to any such Person or its Representatives~~. (b)~~ . Notwithstanding anything to the ~~foregoing~~contrary in this Agreement, if at any time prior to obtaining the Company ~~Shareholder~~ Stockholder Approval, the Company or any of its Representatives receives a bona fide oral or written Company Takeover Proposal, which Company Takeover Proposal did not result from any breach of this Section 5.02, (i) the Company and its Representatives may contact such Person making the Company Takeover Proposal or its Representatives to request that any bona fide Company Takeover Proposal made orally be made in writing and (ii) in response to the receipt of a bona fide written Company Takeover Proposal if made after the date of this Agreement that the Company Board determines in good faith (after consultation with ~~its~~ the Company’s financial advisor and outside ~~counsel and financial advisor~~legal counsel) that ~~the failure to take the following actions~~ such Company Takeover Proposal, inquiry or proposal either constitutes a Superior Company Proposal or would reasonably be expected to ~~be inconsistent with its fiduciary duties under applicable Law, and that such Company Takeover Proposal constitutes or is reasonably likely to lead to~~ result in a Superior Company Proposal, and which Company Takeover Proposal, inquiry or proposal was made after the date of this Agreement and did not otherwise result from a material breach of this Section 5.02, the Company ~~may (and may authorize and permit its Affiliates~~ and its ~~and their~~ Representatives ~~to), subject to compliance with Section 5.02(e),~~ may (A) ~~enter into an Acceptable Confidentiality Agreement with the Person making the Company Takeover Proposal and~~ furnish information ~~pursuant to an Acceptable Confidentiality Agreement (including non-public information and data)~~ with respect to the Company ~~and the Company Subsidiaries~~ Entities to the Person making such Company Takeover Proposal (and ~~its~~ such Person’s Representatives) (provided that all such information has previously been provided to Parent or is provided to Parent ~~prior to or~~ substantially ~~concurrent~~ concurrently with the time it is provided to such ~~Person~~Person(s)), if prior to so furnishing such information, the Company receives from the third party an executed confidentiality agreement that includes terms that are no less restrictive of such Person than the terms contained in the Confidentiality Agreement; and (B) participate in discussions regarding the terms of such Company Takeover ~~Proposal~~ Proposal, including terms of a Company Acquisition Agreement with respect thereto, and the negotiation of such terms ~~with,~~ and ~~only with,~~ such Company Acquisition Agreement with the Person making such Company Takeover Proposal (and such Person’s Representatives). Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 5.02 by any Representative of the Company ~~or any of its Affiliates~~ shall constitute a breach of this Section 5.02 by the Company. (cb) Except as set forth ~~below~~in Section 5.02(a), ~~neither~~ Section 5.02(c), and Section 5.02(e), the Company Board ~~nor any committee thereof~~ shall not: (i) ~~(A) withdraw or fail to make when required by this Agreement (~~withdraw, change, qualify, withhold or modify in any manner adverse to ~~Parent)~~Parent or Merger Sub, or propose ~~or agree~~ publicly to ~~withdraw or fail to make when required by this Agreement (~~withdraw, change, qualify, withhold or modify in any manner adverse to ~~Parent)~~Parent or Merger Sub, or fail to make when required pursuant to this Agreement, the Company Board ~~Recommendation or~~ Recommendation; (Bii) adopt, approve, recommend or declare advisable, or propose ~~or agree~~ publicly to adopt, approve, recommend or declare advisable, any Company Takeover ~~Proposal~~ Proposal; (iii) fail to include the Company Board Recommendation in the Proxy Statement; or (iv) except as set forth in Section 5.02(a), Section 5.02(c) and Section 5.02(e), including any confidentiality agreement contemplated by Section 5.02(a), authorize, permit, approve, recommend or declare advisable, or propose publicly to authorize, permit, approve, recommend or declare advisable, or cause or allow the Company to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, agreement or commitment constituting, or that would reasonably be expected to lead to, any Company Takeover Proposal, or requiring, or that would reasonably be expected to cause, the Company to abandon or terminate this Agreement or delay in any material respects or fail to consummate the transactions contemplated hereby (each, a “Company Acquisition Agreement”) (any action ~~described~~ in ~~this clause~~ the foregoing clauses (i) through (iv) being referred to as a “Company Adverse Recommendation Change”). (c) ~~or (ii) adopt, recommend or declare advisable, or propose or agree~~ Notwithstanding anything to ~~adopt, recommend or declare advisable, or allow~~ the ~~Company or any of its Affiliates to execute or enter into, any confidentiality agreement (other than an Acceptable Confidentiality~~ contrary in this Agreement) letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, alliance agreement, partnership agreement or other similar agreement or arrangement (an “Acquisition Agreement”) constituting, or that may reasonably be expected to lead to, a Company Takeover Proposal. Notwithstanding the foregoing, at any time prior to ~~obtaining~~ the receipt of the Company ~~Shareholder~~ Stockholder Approval, in response to Company’s receipt of a Superior Company Proposal, the Company Board may ~~(I)~~ make a Company Adverse Recommendation Change or ~~(II) cause the Company to enter into an Acquisition Agreement constituting or that may reasonably be expected to lead to a Company Takeover Proposal not obtained in violation of this Section 5.02 and~~ terminate this Agreement pursuant to Section ~~8.01(c)(ii~~7.01(c)(i), in ~~either case~~ each case, if the Company Board determines in good faith (after consultation with the Company’s outside legal counsel and financial advisor) that the failure to make a ~~financial advisor of nationally recognized reputation), that (x) in the case of clause (I), where the~~ Company Adverse Recommendation Change ~~is made in response~~ or to ~~an Intervening Event~~terminate this Agreement pursuant to Section 7.01(c)(i), ~~or the consequences thereof~~as applicable, ~~and the failure to take such action~~ would reasonably be expected to be inconsistent with the ~~directors’~~ Company Board’s fiduciary duties under applicable Law and (y) in the case of (A) clause (I) where such Company Adverse Recommendation Change is made in response to a Company Takeover Proposal, or (B) clause (II), such Company Takeover Proposal constitutes a Superior Company ProposalLaw; provided, however, that the Company ~~shall~~ Board may not ~~be entitled~~ make such a Company Adverse Recommendation Change or so terminate this Agreement pursuant to Section 7.01(c)(i) unless: (i) the Company Board has delivered to Parent, at least (3) Business Days in advance, prior written notice that the Company Board is prepared to make a Company Adverse Recommendation Change or ~~take any action set forth in clause (II~~to terminate this Agreement pursuant to Section 7.01(c)(i) ~~unless (1) the Company has given Parent at least five Business Days’ prior written notice~~ (a “~~Company~~ Recommendation Change Notice”), which Recommendation Change Notice ~~of Recommendation Change”~~shall, (A) ~~(it being understood and agreed that any amendment to any material term~~ attach the most current draft of any ~~Superior~~ proposed Company Proposal shall require a new Company Notice of Recommendation Change and a new notice period (which shall be two Business Days instead of five Business Days)) advising Parent that the Company Board intends Acquisition Agreement with respect to ~~take such action (which notice shall specify the identity of the party making~~ such Superior Company Proposal which are not set forth in the Company Acquisition Agreement, and ~~the~~ (B) include a summary of any material terms ~~thereof and~~and conditions of such Superior Company Proposal; and (ii) if requested by Parent, in during the ~~case~~ three (3) Business Day period after delivery of ~~an Intervening Event~~the Recommendation Change Notice, ~~specifying the details thereof), (2)~~ the Company ~~has negotiated,~~ and ~~has caused~~ its Representatives ~~to negotiate,~~ negotiate in good faith with Parent ~~during such notice period,~~ and its Representatives regarding any revisions to ~~the extent Parent wishes~~ this Agreement committed to ~~negotiate, to enable Parent to propose~~ in writing ~~a binding offer~~ by Parent and the Company represents that the Company Board shall take into account any such revisions; provided, however, that, if any material revisions are made to ~~effect revisions to the terms of this Agreement such that it would cause such~~ an applicable Superior Company ~~Proposal to no longer constitute a Superior~~ Proposal, the Company ~~Proposal or for~~ shall notify Parent of such ~~Intervening Event to no longer warrant a Company Adverse Recommendation Change~~revisions in writing and, ~~and~~ if requested by Parent, during the three (3) ~~following the end~~ Business Day period after delivery of such ~~notice period~~notice, the Company ~~Board or any committee thereof~~ and its Representatives shall ~~have considered~~ negotiate in good faith ~~such binding offer or Intervening Event,~~ with Parent and ~~shall have determined~~ its Representatives regarding any revisions to this Agreement committed to in writing by Parent and the Company represents that the ~~Superior~~ Company ~~Proposal would continue to constitute a Superior Company Proposal if the revisions proposed in~~ Board shall take into account any such binding offer were to be given effect or that such Intervening Event continues to warrant a Company Adverse Recommendation Change; and provided, further that any purported termination of this Agreement pursuant to this sentence shall be void and of no force and effect unless the termination is in accordance with Section 8.01 and, to the extent required under the terms of this Agreement, the Company pays or causes to be paid to Parent the applicable Company Termination Fee in accordance with Section 6.06 prior to or concurrently with such termination so long as Parent has provided the Company with wire instructions for such paymentrevisions. (d) ~~In addition to the obligations of the Company set forth in paragraphs (a) through (c) of this Section 5.02, the~~ The Company shall (i) reasonably promptly (~~and~~ but in ~~any~~ no event ~~within 24 hours of~~ more than thirty-six (36) hours) following receipt ~~thereof by an officer or director of the Company) advise Parent orally and in writing~~ of any Company Takeover Proposal or any inquiry ~~or proposal~~ that ~~may~~ could reasonably be expected to lead to a Company Takeover Proposal, notify Parent in writing of such Company Takeover Proposal or inquiry and, in the case of any such notice to Parent as to receipt of a Company Takeover Proposal or any inquiry, set forth the material terms and conditions of ~~any~~ such Company Takeover ~~Proposal or inquiry or proposal (including any changes thereto) and~~ Proposal, the identity of the Person making any such Company Takeover Proposal, and written summaries of any material oral communications relating to a Company Takeover Proposal ~~or inquiry or proposal,~~ and (ii) thereafter promptly keep Parent fully informed ~~in all material respects~~ on a ~~reasonably~~ current basis of ~~the status and details (including~~ any material change or amendment to the terms ~~thereof~~and status of any such Company Takeover Proposal or inquiry. Without limiting the generality of clause (ii) of ~~any~~ the preceding sentence, the Company ~~Takeover Proposal, and (iii)~~ shall provide to Parent as soon as reasonably practicable after receipt or delivery thereof (and in any event within thirty-six (36) hours of receipt or delivery) copies of ~~all correspondence and other~~ any written ~~and electronic material exchanged between~~ Company Takeover Proposal (including draft agreements or term sheets) received by the Company or any Representative of the Company ~~Subsidiaries~~ from the Person making a Company Takeover Proposal (or such Person’s Representatives) and of all written non-public material provided by the Company to the Person making a Company Takeover Proposal (or to such Person’s Representatives) that was not previously provided to Parent and is related to such Company Takeover Proposal or is being provided pursuant to the confidentiality agreement executed by the Company and such Person. The Company shall not enter into any confidentiality or other agreement with any Person subsequent to the date of this Agreement that ~~describes any of~~ prohibits the ~~material terms or conditions of any~~ Company ~~Takeover Proposal~~from complying with its obligations under this Agreement, including providing such information to Parent. (e) Nothing ~~contained~~ in this Section 5.02 shall prohibit the Company from (i) ~~issuing a “stop-look-and-listen communication” pursuant to Rule 14d-9(f) promulgated under the Exchange Act or taking and disclosing to its shareholders positions required by~~ complying with Rule 14d-9 or and Rule 14e-2 promulgated under the Exchange Act, ~~in each case after the commencement of a tender offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act), (ii)~~ or from issuing a statement in connection with a Company Takeover Proposal that does not involve the commencement of a tender offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act), so long as the statement includes no more information than would be required for a “stop~~-look-and-listen communication~~, look and listen” ~~under Rule 14d-9(f) promulgated under the Exchange Act if such provision was applicable~~statement pending disclosure of its position thereunder, or (~~iii~~ii) making any disclosure to the ~~shareholders of the~~ Company Stockholders if, in the ~~good~~ good-faith judgment of the Company Board (after consultation with the Company’s outside legal counsel) failure to so disclose would reasonably be expected to be inconsistent with its ~~fiduciary duties~~ obligations under applicable Law; provided, however, that ~~in no event shall~~ any disclosure of a position contemplated by Rule 14e-2(a) or Rule 14d-9 promulgated under the ~~Company~~ Exchange Act or any other disclosure that relates to the approval, recommendation or declaration of advisability by the Company Board with respect to a Company Takeover Proposal shall be deemed to be a Company Adverse Recommendation Change unless the Company, in connection with such disclosure, publicly states that the Company Board expressly rejects the applicable Company Takeover Proposal or ~~any committee thereof take, or agree or resolve to take, any action prohibited by Section 5.02(c)~~expressly reaffirms the Company Board Recommendation. (f) For purposes of this Agreement:

Appears in 1 contract

Samples: Merger Agreement (Mikros Systems Corp)

No Solicitation by the Company; Company Board Recommendation. (a) ~~The~~ Except as permitted by Section 5.04(b) or Section 5.04(d), the Company ~~shall not~~shall, and shall cause ~~its Affiliates~~ each of the Company Subsidiaries, and its and their ~~respective~~ officers, directors, ~~officers~~ managers or employees, and ~~employees and each of~~ shall instruct its ~~and their respective investment bankers,~~ accountants, ~~attorneys~~ consultants, legal counsel, financial advisors and agents and other ~~advisors, agents or~~ representatives (~~collectively~~with respect to any Person, the foregoing Persons are referred to herein as such Person’s “Representatives”) ~~not~~ of the Company or the Company Subsidiaries, to, : (i) immediately cease any direct or indirect existing solicitations, discussions or negotiations with any Persons that may be ongoing with respect to any Alternative Proposal or any proposal that could be reasonably expected to result in an Alternative Proposal; and (ii) from the date hereof until the earlier of the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 8.01, subject to the other provisions of this Section 5.04, not, and not to publicly announce any intention to, directly or ~~indirectly~~ indirectly, (A) solicit, ~~initiate or~~ initiate, knowingly ~~encourage, induce~~ encourage or facilitate any ~~Company Takeover Proposal or any~~ inquiry, ~~discussion~~ discussion, offer or ~~proposal~~ request that ~~may~~ constitutes, or would reasonably be expected to lead to, an Alternative Proposal (an “Inquiry{xe "Inquiry" \t "}”) (it being understood and agreed that ministerial acts that are not otherwise prohibited by this Section 5.04 (such as answering unsolicited phone calls) shall not be deemed to “facilitate” for purposes of, or otherwise constitute a violation of, this Section 5.04), (B) furnish non-public information regarding the Company ~~Takeover~~ or the Company Subsidiaries to any Person in connection with an Inquiry or an Alternative Proposal, (iiC) ~~directly~~ enter into, continue or ~~indirectly participate in any~~ maintain discussions or negotiations with any Person with respect to an Inquiry or an Alternative Proposal, (D) otherwise cooperate with or assist or participate in or facilitate any discussions or negotiations regarding, or furnish or cause to be furnished to any Person or “Group” (as such term is defined in Section 13(d) under the Exchange Act) any non-public information with respect to, or ~~cooperate in~~ take any ~~way with~~ other action to facilitate any ~~Person~~ Inquiries or the making of any proposal that constitutes, or could be reasonably expected to result in, an Alternative Proposal, (~~whether or not a Person making a Company Takeover Proposal~~E) ~~with respect~~ approve, agree to, accept, endorse or recommend any ~~Company Takeover Proposal or any inquiry or proposal that may reasonably be expected to lead~~ Alternative Proposal, (F) submit to a ~~Company Takeover Proposal~~ vote of its shareholders, approve, endorse or recommend any Alternative Proposal, (G) effect any Adverse Recommendation Change or (iii) waive, terminate, modify, amend, release or assign any provisions of any confidentiality or standstill agreement (or similar agreement) to which it is a party or fail to enforce, to the fullest extent permitted under applicable Law, the provisions of any such agreement, including by obtaining an injunction to prevent any breach of such agreements and to enforce specifically the terms and provisions thereof in any court having jurisdiction. The Company shall, and shall cause its Affiliates and its and their respective Representatives to, immediately cease and cause to be terminated all existing solicitation, discussions or negotiations with any Person conducted heretofore with respect to any Company Takeover Proposal, or any inquiry or proposal that may reasonably be expected to lead to a Company Takeover Proposal, request the prompt return or destruction of all confidential information previously furnished in connection therewith and immediately terminate all physical and electronic dataroom access previously granted to any such Person or its Representatives. (b) Notwithstanding the foregoing, if at any time prior to obtaining the Company Shareholder Approval, the Company or any of its Representatives receives a bona fide oral or written Company Takeover Proposal, which Company Takeover Proposal did not result from any breach of this Section 5.02, (i) the Company and its Representatives may contact such Person making the Company Takeover Proposal or its Representatives to request that any bona fide Company Takeover Proposal made orally be made in writing and (ii) in response to a bona fide written Company Takeover Proposal if the Company Board determines in good faith (after consultation with its outside counsel and financial advisor) that the failure to take the following actions would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, and that such Company Takeover Proposal constitutes or is reasonably likely to lead to a Superior Company Proposal, the Company may (and may authorize and permit its Affiliates and its and their Representatives to), subject to compliance with Section 5.02(e), (AH) enter into an Acceptable Confidentiality Agreement with the Person making the Company Takeover Proposal and furnish information pursuant to an Acceptable Confidentiality Agreement (including non-public information and data) with respect to the Company and the Company Subsidiaries to the Person making such Company Takeover Proposal (and its Representatives) (provided that all such information has previously been provided to Parent or is provided to Parent prior to or substantially concurrent with the time it is provided to such Person), and (B) participate in discussions regarding the terms of such Company Takeover Proposal and the negotiation of such terms with, and only with, the Person making such Company Takeover Proposal (and such Person’s Representatives). Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 5.02 by any Representative of the Company or any of its Affiliates shall constitute a breach of this Section 5.02 by the Company. (c) Except as set forth below, neither the Company Board nor any committee thereof shall (i) (A) withdraw or fail to make when required by this Agreement (or modify in any manner adverse to Parent), or propose or agree to withdraw or fail to make when required by this Agreement (or modify in any manner adverse to Parent), the Company Board Recommendation or (B) adopt, recommend or declare advisable, or propose or agree to adopt, recommend or declare advisable, any Company Takeover Proposal (any action described in this clause (i) being referred to as a “Company Adverse Recommendation Change”) or (ii) adopt, recommend or declare advisable, or propose or agree to adopt, recommend or declare advisable, or allow the Company or any of its Affiliates to execute or enter into, any confidentiality agreement (other than an Acceptable Confidentiality Agreement) letter of intent~~, memorandum of understanding~~, agreement in principle, ~~merger~~ term sheet, acquisition agreement, ~~acquisition~~ merger agreement, option agreement, joint venture agreement, ~~alliance~~ partnership agreement, ~~partnership agreement~~ or other ~~similar~~ Contract or agreement ~~or arrangement~~ (an collectively, a “Company Acquisition Agreement”) constituting, or that may reasonably be expected to lead to, a Company Takeover Proposal. Notwithstanding the foregoing, at any time prior to obtaining the Company Shareholder Approval, the Company Board may (I) make a Company Adverse Recommendation Change or (II) cause the Company to enter into an Acquisition Agreement constituting or that may reasonably be expected to lead to a Company Takeover Proposal not obtained in violation of this Section 5.02 and terminate this Agreement pursuant to Section 8.01(c)(ii), in either case if the Company Board determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation), that (x) in the case of clause (I), where the Company Adverse Recommendation Change is made in response to an Intervening Event, or the consequences thereof, and the failure to take such action would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law and (y) in the case of (A) clause (I) where such Company Adverse Recommendation Change is made in response to a Company Takeover Proposal, or (B) clause (II), such Company Takeover Proposal constitutes a Superior Company Proposal; provided, however, that the Company shall not be entitled to make a Company Adverse Recommendation Change or take any action set forth in clause (II) unless (1) the Company has given Parent at least five Business Days’ prior written notice (a “Company Notice of Recommendation Change”) (it being understood and agreed that any amendment relating to any material term of any Superior Company Proposal shall require a new Company Notice of Recommendation Change and a new notice period (which shall be two Business Days instead of five Business Days)) advising Parent that the Company Board intends to take such action (which notice shall specify the identity of the party making such Superior Company Proposal and the material terms thereof and, in the case of an Intervening Event, specifying the details thereof), (2) the Company has negotiated, and has caused its Representatives to negotiate, in good faith with Parent during such notice period, to the extent Parent wishes to negotiate, to enable Parent to propose in writing a binding offer to effect revisions to the terms of this Agreement such that it would cause such Superior Company Proposal to no longer constitute a Superior Company Proposal or for such Intervening Event to no longer warrant a Company Adverse Recommendation Change, and (3) following the end of such notice period, the Company Board or any committee thereof shall have considered in good faith such binding offer or Intervening Event, and shall have determined that the Superior Company Proposal would continue to constitute a Superior Company Proposal if the revisions proposed in such binding offer were to be given effect or that such Intervening Event continues to warrant a Company Adverse Recommendation Change; and provided, further that any purported termination of this Agreement pursuant to this sentence shall be void and of no force and effect unless the termination is in accordance with Section 8.01 and, to the extent required under the terms of this Agreement, the Company pays or causes to be paid to Parent the applicable Company Termination Fee in accordance with Section 6.06 prior to or concurrently with such termination so long as Parent has provided the Company with wire instructions for such paymentAlternative Proposal. (db) ~~In addition~~ Notwithstanding anything to the ~~obligations of the Company set forth~~ contrary in ~~paragraphs (a) through (c) of this~~ Section ~~5.02~~5.04(a), the Company shall (i) promptly (and in any event within 24 hours of receipt thereof by an officer or director of the Company) advise Parent orally and in writing of any Company Takeover Proposal or any inquiry or proposal that may reasonably be expected to lead to a Company Takeover Proposal, the material terms and conditions of any such Company Takeover Proposal or inquiry or proposal (including any changes thereto) and the identity of the Person making any such Company Takeover Proposal or inquiry or proposal, (ii) keep Parent informed in all material respects on a reasonably current basis of the status and details (including any change to the terms thereof) of any Company Takeover Proposal, and (iii) provide to Parent as soon as practicable after receipt or delivery thereof copies of all correspondence and other written and electronic material exchanged between if the Company or any of the Company Subsidiaries ~~and~~ or any of its or their respective Representatives receives an unsolicited bona fide written Alternative Proposal by any Person or Group at any time prior to the Company Shareholders Meeting, and provided there has been no material breach of Section 5.04(a) that ~~describes~~ resulted in such Alternative Proposal, the Company and its Representatives may, prior to the Company Shareholders Meeting, take the actions set forth in subsections (i) and/or (ii) of this Section 5.04(b) if the Company Board (or any committee thereof) has determined, in its good faith judgment (after consultation with the Company’s financial advisors and outside legal counsel), that such Alternative Proposal constitutes or could reasonably be expected to lead to a Superior Proposal and that the failure to take such action would be inconsistent with the directors’ exercise of their fiduciary duties under applicable Law: (i) furnish non-public information to and afford access to the business, employees, officers, contracts, properties, assets, books and records of the Company and the Company Subsidiaries to any Person in response to such Alternative Proposal, pursuant to the prior execution of (and the Company and/or Company Subsidiaries may enter into) an Acceptable Confidentiality Agreement; and (ii) enter into and engage in discussions or negotiations with any Person with respect to such Alternative Proposal. (c) Promptly (but in no event more than 48 hours) following receipt (to the Knowledge of the Company) of any Alternative Proposal or any Inquiry, the Company shall advise Parent in writing of the receipt of such Alternative Proposal or Inquiry, and the terms and conditions of such Alternative Proposal or Inquiry (including, in each case, the identity of the Person or Group making any such Alternative Proposal or Inquiry), and the Company shall as promptly as reasonably practicable provide to Parent (i) a copy of such Alternative Proposal or Inquiry, if in writing; or (ii) a summary of the material terms of such Alternative Proposal or ~~conditions~~ Inquiry, if oral. Neither the Company nor any Company Subsidiary or any of its or their respective Representatives shall take any action set forth in subsections (i) or (ii) of Section 5.04(b) unless and until the Company shall have delivered to Parent the written notice contemplated by the foregoing sentence and a written notice advising Parent that it intends to take such action. The Company agrees that it shall promptly provide to Parent any non-public information concerning the Company or any of the Company Subsidiaries that may be provided (pursuant to Section 5.04(b)) to any other Person or Group in connection with any such Alternative Proposal that has not previously been provided to Parent. In addition, the Company shall keep Parent reasonably informed on a prompt basis of any ~~Company Takeover Proposal~~material developments regarding the Alternative Proposal or any material change to the terms or status of the Alternative Proposal or Inquiry. (ed) ~~Nothing contained in~~ Notwithstanding anything herein to the contrary, at any time prior to the Company Shareholders Meeting, the Company Board may, if the Company has received a Superior Proposal (after taking into account the terms of any revised offer by Parent pursuant to this Section ~~5.02 shall prohibit the Company from~~ 5.04(d)), and provided there has been no material breach of Section 5.04(a) that resulted in such Superior Proposal, (i) ~~issuing a “stop-look-and-listen communication” pursuant~~ cause the Company to ~~Rule 14d-9(f) promulgated under the Exchange Act~~ withdraw, qualify or ~~taking and disclosing~~ modify, or propose publicly to ~~its shareholders positions required by Rule 14d-9~~ withdraw, qualify or ~~Rule 14e-2 promulgated under the Exchange Act~~modify, in ~~each case after~~ a manner adverse to Parent, the ~~commencement~~ Company Recommendation or take any action, or make any public statement, filing or release inconsistent with the Company Recommendation (including, for the avoidance of ~~a tender offer (within~~ doubt, recommending against the ~~meaning of Rule 14d-2 promulgated under the Exchange Act)~~Merger or approving, endorsing or recommending any Alternative Proposal) or (ii) ~~issuing~~ terminate this Agreement pursuant to Section 8.01(d) to enter into a ~~statement in connection~~ definitive written agreement providing for such Superior Proposal simultaneously with ~~a Company Takeover Proposal that does not involve~~ the ~~commencement~~ termination of a tender offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act), so long as the statement includes no more information than would be required for a “stop-look-and-listen communication” under Rule 14d-9(f) promulgated under the Exchange Act if such provision was applicable, or (iii) making any disclosure to the shareholders of the Company ifthis Agreement, in the ~~good faith judgment~~ case of clauses (i) and (ii), if the Company Board (has determined in good faith, after consultation with outside legal counsel) , that the failure to ~~so disclose~~ take such action would ~~reasonably be expected to~~ be inconsistent with ~~its~~ the directors’ exercise of their fiduciary duties under applicable Law; ~~provided, however,~~ provided that ~~in no event shall the Company or~~ the Company Board ~~or any committee thereof take, or agree or resolve to take, any action prohibited by Section 5.02(c).~~ may not take either of the actions described in clauses (fi) ~~For purposes of this Agreement~~and (ii) above unless:

Appears in 1 contract

Samples: Merger Agreement (Watford Holdings Ltd.)

No Solicitation by the Company; Company Board Recommendation. (a) The Company shall not, and shall ~~cause~~ not authorize or permit any of its Affiliates ~~and its and their respective directors, officers and employees and each~~ or any of its and their respective ~~investment bankers, accountants, attorneys and other advisors, agents or representatives (collectively, “Representatives”) not~~ Representatives to, (i) directly or indirectly solicit, initiate or knowingly encourage, induce or facilitate (including by way of furnishing non-public information relating to any Company Entity) any Company Takeover Proposal or any ~~inquiry, discussion~~ inquiry or proposal that ~~may~~ would reasonably be expected to lead to a Company Takeover Proposal, in each case, except for this Agreement, the Education Transaction Documents and the Transactions, (ii) directly or indirectly conduct, continue or otherwise participate in any discussions or negotiations with any Person (except for the Company’s Affiliates and its and their respective Representatives or Parent and Parent’s Affiliates and its and their respective Representatives or Education Buyer and Education Buyer’s Affiliates and its and their respective Representatives) regarding, or furnish to any ~~Person~~ such Person, any nonpublic information with respect to, or cooperate in any way with any such Person ~~(whether or not a Person making a Company Takeover Proposal)~~ with respect to, any Company Takeover Proposal or any inquiry or proposal that ~~may~~ would reasonably be expected to lead to a Company Takeover ~~Proposal or~~ Proposal, (iii) ~~waive, terminate, modify, amend,~~ amend or grant any waiver or release under any standstill or ~~assign~~ similar agreement with respect to any ~~provisions~~ class of Equity Securities of any ~~confidentiality~~ Company entity or ~~standstill agreement~~ (~~or similar agreement~~iv) resolve to ~~which it is a party or fail to enforce, to~~ do any of the fullest extent permitted under applicable Law, the provisions of any such agreement, including by obtaining an injunction to prevent any breach of such agreements and to enforce specifically the terms and provisions thereof in any court having jurisdictionforegoing. The Company shall, and shall ~~cause~~ direct its Affiliates and its and their respective Representatives to, immediately cease ~~and cause to be terminated~~ all existing ~~solicitation,~~ discussions or negotiations with any Person ~~conducted heretofore~~ (except for the Company’s Affiliates and its and their respective Representatives or Parent and Parent’s Affiliates and its and their respective Representatives or Education Buyer and Education Buyer’s Affiliates and its and their respective Representatives) with respect to any ~~Company Takeover Proposal,~~ actual or ~~any inquiry or proposal that may reasonably be expected to lead to a~~ potential Company Takeover Proposal, request the prompt return or destruction of all confidential information previously furnished ~~in connection therewith~~ and immediately terminate all physical and electronic ~~dataroom~~ data room access previously granted to any such Person or its Representatives. (b) Notwithstanding anything to the ~~foregoing~~contrary in this Agreement, if at any time prior to ~~obtaining~~ the receipt of the Company ~~Shareholder~~ Stockholder Approval, in response to the ~~Company or any~~ receipt of ~~its Representatives receives~~ a ~~bona fide oral or~~ written Company Takeover Proposal, which ~~Company Takeover Proposal~~ did not result from ~~any~~ a breach of this Section 5.02, ~~(i)~~ made after the ~~Company and its Representatives may contact such Person making the Company Takeover Proposal or its Representatives to request~~ date of this Agreement that ~~any bona fide Company Takeover Proposal made orally be made in writing and (ii) in response to a bona fide written Company Takeover Proposal if~~ the Company Board determines in good faith (after consultation with ~~its~~ a financial advisor and outside ~~counsel and financial advisor~~legal counsel) ~~that the failure to take the following actions would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, and that such Company Takeover Proposal~~ constitutes or is reasonably likely to lead to a Superior Proposal and that the failure to take action with respect thereto would be inconsistent with the Company ~~Proposal~~Board’s fiduciary duties under applicable Law, the Company and its Representatives may (~~and may authorize and permit its Affiliates and its and their Representatives to), subject to compliance with Section 5.02(e), (A~~1) ~~enter into an Acceptable Confidentiality Agreement with the Person making the Company Takeover Proposal and~~ furnish information ~~pursuant to an Acceptable Confidentiality Agreement (including non-public information and data)~~ with respect to the Company ~~and the Company Subsidiaries~~ Entities to the Person making such Company Takeover Proposal (and ~~its~~ such Person’s Representatives) pursuant to an executed confidentiality agreement containing terms that are not less restrictive to the other party than those contained in the Confidentiality Agreement (such confidentiality agreement, an “Acceptable Confidentiality Agreement”); provided, however, that an Acceptable Confidentiality Agreement shall not be required to contain any standstill or similar provision; provided that the Company shall promptly (but in no event later than twenty-four (24) hours) deliver to Parent a copy of any Acceptable Confidentiality Agreement entered into by the Company; provided, further, that all such information has previously been ~~provided~~ made available to Parent or its Representatives or is ~~provided~~ made available to Parent ~~prior to~~ or ~~substantially concurrent~~ its Representatives contemporaneously with the ~~time it is provided~~ provision of such information to such Person), and (B2) participate in discussions regarding the terms of such Company Takeover ~~Proposal~~ Proposal, including terms of a Company Acquisition Agreement with respect thereto, and the negotiation of such terms ~~with,~~ and ~~only with,~~ such Company Acquisition Agreement with the Person making such Company Takeover Proposal (and such Person’s Representatives). ~~Without limiting~~ The Company shall promptly (and in any event within twenty-four (24) hours) notify Parent and Merger Sub if the ~~foregoing, it is agreed that any violation of the restrictions set forth~~ Company commences furnishing non-public information or commences discussions or negotiations as provided in this Section ~~5.02 by any Representative of the Company or any of its Affiliates shall constitute a breach of this Section 5.02 by the Company~~5.02(b). (c) Except as set forth ~~below~~in Section 5.02(d), ~~neither~~ and except for the public disclosure of a Recommendation Change Notice, the Company Board ~~nor any committee thereof~~ shall not (i) ~~(A) withdraw or fail to make when required by this Agreement (~~withdraw, change, qualify, withhold or modify in any manner adverse to Parent), or propose ~~or agree~~ publicly to ~~withdraw or fail to make when required by this Agreement (~~withdraw, change, qualify, withhold or modify in any manner adverse to Parent), the Company Board ~~Recommendation or~~ Recommendation, (Bii) adopt, ~~recommend~~ approve or ~~declare advisable~~recommend, or propose ~~or agree~~ publicly to adopt, ~~recommend~~ approve or ~~declare advisable~~recommend, any Company Takeover Proposal, (iii) fail to include the Company Board Recommendation in the Proxy Statement, (iv) take any formal action or make any recommendation or public statement in connection with a tender offer or exchange offer (except for a recommendation against any such offer or a customary “stop, look and listen” communication of the type contemplated by Rule 14d-9(f) under the Exchange Act if in the good-faith judgment of the Company Board (after consultation with outside legal counsel) failure to so disclose would be inconsistent with its obligations under applicable Law (provided, that, for the avoidance of doubt, if any disclosure or other action taken pursuant to this clause includes a Company Adverse Recommendation Change, such action or disclosure shall be deemed to be a Company Adverse Recommendation Change for all purposes under this Agreement)), (v) make any public statement inconsistent with the Company Board Recommendation; provided that any public statement that includes only factual statements and reaffirms the Company Board Recommendation shall not be a statement inconsistent with the Company Board Recommendation, or (vi) if a Company Takeover Proposal shall have been publicly announced or disclosed, either fail to recommend against such Company Takeover Proposal or fail to reaffirm the Company Board Recommendation promptly following a written request by Parent to do so (it being understood that (x) under no circumstances under this clause (vi) shall the Company Board be required to recommend against such Company Takeover Proposal and (y) the Company Board may satisfy its obligation under this clause (vi) by reaffirming the Company Board Recommendation) and in any event on or prior to the later of (1) the fifth (5th) Business Day after the delivery of such request by Parent and (2) ten (10) Business Days following public announcement or disclosure, but in any event at least two (2) Business Days prior to the date of the Company Stockholders Meeting (or any adjournment or postponement thereof) (any action ~~described~~ in ~~this clause~~ the foregoing clauses (ii)–(v) being referred to as a “Company Adverse Recommendation Change”). Except as set forth in Section 5.02(a), Section 5.02(b) and Section 5.02(d), including any Acceptable Confidentiality Agreement contemplated by Section 5.02(b), the Company Board shall not authorize, cause, permit, approve or ~~(ii) adopt, recommend or declare advisable~~recommend, or propose publicly to authorize, cause, permit, approve or ~~agree to adopt, recommend or declare advisable~~recommend, or allow the Company or any of its Affiliates or Representatives to execute or enter into, any ~~confidentiality agreement (other than an Acceptable Confidentiality Agreement)~~ letter of intent, ~~memorandum of understanding, agreement in principle, merger agreement~~term sheet, acquisition agreement, ~~option~~ merger agreement, joint venture agreement, ~~alliance agreement~~memorandum of understanding or similar agreement in principle, ~~partnership~~ agreement or ~~other similar agreement or arrangement (an “Acquisition Agreement”)~~ commitment constituting, or that ~~may~~ would reasonably be expected to lead to, a any Company Takeover Proposal. , or requiring, or that would reasonably be expected to cause, the Company to abandon or terminate this Agreement (a “Company Acquisition Agreement”). (d) Notwithstanding anything to the ~~foregoing~~contrary in this Agreement, at any time prior to ~~obtaining~~ the receipt of the Company ~~Shareholder~~ Stockholder Approval, in response to the Company’s receipt of a written Superior Proposal that did not result from a breach of this Section 5.02, the Company Board may ~~(I)~~ make a Company Adverse Recommendation Change or ~~(II) cause~~ authorize and direct the Company to ~~enter into an Acquisition Agreement constituting or that may reasonably be expected to lead to a Company Takeover Proposal not obtained in violation of this Section 5.02 and~~ terminate this Agreement pursuant to Section ~~8.01(c)(ii~~7.01(c)(i), in either case if and only if, prior to taking such action, the Company Board determines in good faith (after consultation with outside legal counsel and a financial ~~advisor of nationally recognized reputation),~~ advisor) that ~~(x) in~~ the ~~case of clause (I), where the~~ failure to make a Company Adverse Recommendation Change ~~is made in response~~ or to ~~an Intervening Event, or~~ authorize and direct the ~~consequences thereof, and the failure~~ Company to ~~take such action~~ so terminate this Agreement would ~~reasonably be expected to~~ be inconsistent with the ~~directors’~~ Company Board’s fiduciary duties under applicable Law and (y) in the case of (A) clause (I) where such Company Adverse Recommendation Change is made in response to a Company Takeover Proposal, or (B) clause (II), such Company Takeover Proposal constitutes a Superior Company ProposalLaw; provided, however, that the Company ~~shall~~ Board may not ~~be entitled~~ make such a Company Adverse Recommendation Change or authorize or direct the Company so terminate this Agreement pursuant to Section 7.01(c)(i) unless (1) the Company Board has delivered to Parent prior written notice that the Company Board is prepared to make a Company Adverse Recommendation Change or ~~take any action set forth in clause (II) unless (1)~~ to authorize and direct the Company ~~has given Parent at least five Business Days’ prior written notice~~ terminate this Agreement pursuant to Section 7.01(c)(i) (a “~~Company~~ Recommendation Change Notice”), which Recommendation Change Notice ~~of Recommendation Change”~~shall (A) include the basis for such action, (~~it being understood~~ B) identify the Person making the Superior Proposal and ~~agreed that any amendment to any material term~~ (C) attach the most current draft of any proposed Company Acquisition Agreement with respect to such Superior ~~Company~~ Proposal ~~shall require a new Company Notice of Recommendation Change~~ and a ~~new notice period~~ copy of any related financing commitments in the Company’s possession or under its control (~~which shall be two Business Days instead of five Business Days)) advising Parent that~~ or, in each case, if not provided in writing to the ~~Company Board intends to take such action (which notice shall specify the identity~~ Company, a written summary of the ~~party making such Superior Company Proposal and the material~~ terms ~~thereof and, in the case of an Intervening Event, specifying the details~~ thereof), (2) if requested by Parent, during the five (5) Business Day period after delivery of the Recommendation Change Notice, the Company ~~has negotiated,~~ and ~~has caused~~ its Representatives ~~to negotiate,~~ negotiate in good faith with Parent ~~during~~ and its Representatives regarding any revisions to this Agreement, and (3) following 5:00 p.m. Washington, DC time on the last day of such ~~notice~~ five (5) Business Day period, the Company Board shall have determined (after consultation with outside legal counsel and a financial advisor), giving due consideration to the ~~extent Parent wishes to negotiate, to enable Parent to propose in writing a binding offer to effect~~ revisions to the terms of this Agreement to which Parent and Merger Sub have committed to in writing prior to 5:00 p.m. Washington, DC time on the last day of such five (5) Business Day period, that ~~it would cause such~~ the Superior ~~Company~~ Proposal continues to ~~no longer~~ constitute a Superior Proposal (assuming the revisions committed to in writing by Parent and Merger Sub were to be given effect) and that the failure to take such action would be inconsistent with the Company ~~Proposal~~ Board’s fiduciary duties under applicable Law; provided, however, that, if any material revisions are made to any such Superior Proposal, the Company Board shall notify Parent of such revisions in writing and, if requested by Parent, during the two (2) Business Day period after delivery of such notice, the Company and its Representatives shall be required to comply with the requirements of the foregoing proviso of this Section 5.02(d) anew with respect to such additional notice (it being understood that all references in such proviso to “five (5) Business Days” or ~~for~~ “five (5) Business Day period” shall be to “two (2) Business Days” or “two (2) Business Day period,” respectively). (e) Notwithstanding anything to the contrary in this Agreement, at any time prior to the receipt of the Company Stockholder Approval, in response to a Company Intervening Event, the Company Board may make a Company Adverse Recommendation Change if and only if, prior to taking such action, the Company Board determines in good faith (after consultation with outside legal counsel and a financial advisor) that the failure to make a Company Adverse Recommendation Change would be inconsistent with the Company Board’s fiduciary duties under applicable Law; provided, however, that the Company Board may not make such a Company Adverse Recommendation Change unless (1) the Company Board has delivered to Parent prior written notice that the Company Board is prepared to make a Company Adverse Recommendation Change (an “Intervening Event Notice”), which Intervening Event Notice shall identify in reasonable detail the applicable Company Intervening Event and the potential reasons that the Company Board is proposing to ~~no longer warrant~~ effect a Company Adverse Recommendation Change, (2) during the five (5) Business Day period after delivery of the Intervening Event Notice, the Company and its Representatives negotiate in good faith with Parent and its Representatives regarding any revisions to this Agreement, and (3) following the end of such ~~notice~~ five (5) Business Days period, the Company Board ~~or any committee thereof shall have considered in good faith such binding offer or Intervening Event, and~~ shall have determined ~~that the Superior Company Proposal would continue~~ (after consultation with outside legal counsel and a financial advisor), giving due consideration to ~~constitute a Superior Company Proposal if~~ the revisions ~~proposed in such binding offer were~~ to be given effect or that such Intervening Event continues to warrant a Company Adverse Recommendation Change; and provided, further that any purported termination of this Agreement pursuant to this sentence shall be void and of no force and effect unless the termination is in accordance with Section 8.01 and, to the extent required under the terms of this ~~Agreement~~Agreement to which to which Parent and Merger Sub has committed to in writing prior to 5:00 p.m. Washington, DC time on the last day of such five (5) Business Day period, that the Company ~~pays or causes~~ Intervening Event is continuing and that the failure to take such action would be ~~paid to Parent the applicable Company Termination Fee in accordance~~ inconsistent with ~~Section 6.06 prior to or concurrently with such termination so long as Parent has provided~~ the Company ~~with wire instructions for such payment~~Board’s fiduciary duties under applicable Law. (df) ~~In addition to the obligations of the Company set forth in paragraphs (a) through (c) of this Section 5.02, the~~ The Company shall ~~(i)~~ promptly (and in any event within ~~24 hours of receipt thereof by an officer or director of the Company~~twenty-four (24) hours) advise Parent orally and in writing of any Company Takeover Proposal or a request for information relating to any ~~inquiry or proposal~~ Company Entity that ~~may~~ is reasonably ~~be expected~~ likely to lead to or that contemplates a Company Takeover Proposal, the material terms and conditions of any such Company Takeover Proposal ~~or inquiry or proposal~~ (including ~~any changes thereto~~an unredacted copy of such Company Takeover Proposal or, where such Company Takeover Proposal is not in writing, a description of the terms thereof) and the identity of the Person making any such Company Takeover ~~Proposal or inquiry or proposal, (ii)~~ Proposal. The Company shall keep Parent reasonably informed ~~in all material respects~~ on a ~~reasonably~~ current basis of the material terms and status ~~and details~~ (including any change to the terms thereof) of any Company Takeover Proposal, including by promptly (and in no event later than twenty-four (~~iii~~24) ~~provide~~ hours after receipt) providing to Parent ~~as soon as practicable after receipt or delivery thereof~~ copies of ~~all correspondence~~ any correspondence, proposals, indications of interest and ~~other~~ draft agreements relating to such Company Takeover Proposal, and by providing Parent with prior written ~~and electronic material exchanged between~~ notice, contemporaneously with notice to the Company or Board, of any meeting of the Company ~~Subsidiaries and any Person that describes any of~~ Board at which the ~~material terms or conditions of~~ Company Board is reasonably expected to consider any Company Takeover Proposal. The Company agrees that the Company Entities will not enter into any agreement with any Person that prohibits the Company from providing any information to Parent in accordance with, or otherwise complying with, this Section 5.02. (eg) Nothing ~~contained~~ in this Section 5.02 shall prohibit the Company from ~~(i) issuing a “stop-look-and-listen communication” pursuant to Rule 14d-9(f) promulgated under the Exchange Act or taking and disclosing to its shareholders positions required by~~ complying with Rule 14d-9 or and Rule 14e-2 promulgated under the Exchange Act, in each case after the commencement of a tender offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act), (ii) issuing a statement in connection with a Company Takeover Proposal that does not involve the commencement of a tender offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act), so long as the statement includes no more information than would be required for a “stop-look-and-listen communication” under Rule 14d-9(f) promulgated under the Exchange Act ~~if such provision was applicable, or (iii) making any disclosure to the shareholders of the Company~~ if, in the ~~good~~ good-faith judgment of the Company Board (after consultation with outside legal counsel) failure to so disclose would ~~reasonably be expected to~~ be inconsistent with its ~~fiduciary duties~~ obligations under applicable Law; provided, ~~however~~that, ~~that in no event~~ for the avoidance of doubt, if any disclosure or other action taken pursuant to this Section 5.02(g) includes a Company Adverse Recommendation Change, such action or disclosure shall ~~the~~ be deemed to be a Company ~~or the Company Board or any committee thereof take, or agree or resolve to take, any action prohibited by Section 5.02(c)~~Adverse Recommendation Change for all purposes under this Agreement. (fh) For purposes of this Agreement:

Appears in 1 contract

Samples: Merger Agreement (Advisory Board Co)

No Solicitation by the Company; Company Board Recommendation. ~~(a)~~ The Company shall not, ~~and~~ shall cause its Affiliates not to, and shall use reasonable efforts to cause its and their respective officers, directors, ~~officers and employees and each of its and their respective investment bankers~~principals, partners, managers, members, attorneys, accountants, ~~attorneys and~~ agents, employees, consultants, financial advisors or other ~~advisors, agents or~~ authorized representatives (collectively, “Representatives”) not to, (i) directly or indirectly solicit, initiate or knowingly encourage, induce or facilitate any Company Takeover Proposal or any ~~inquiry, discussion~~ inquiry or proposal that ~~may~~ would reasonably be expected to lead to a Company Takeover Proposal, in each case, except for this Agreement and the transactions contemplated hereby, or (ii) directly or indirectly participate in any discussions or negotiations with any Person (except for the Company’s Affiliates and its and their respective Representatives or Parent and Parent’s Affiliates and its and their respective Representatives) regarding, or furnish to any ~~Person~~ such Person, any nonpublic information with respect to, or cooperate in any way with any such Person ~~(whether or not a Person making a Company Takeover Proposal)~~ with respect to, any Company Takeover Proposal or any inquiry or proposal that ~~may~~ would reasonably be expected to lead to a Company Takeover Proposal or (iii) waive, terminate, modify, amend, release or assign any provisions of any confidentiality or standstill agreement (or similar agreement) to which it is a party or fail to enforce, to the fullest extent permitted under applicable Law, the provisions of any such agreement, including by obtaining an injunction to prevent any breach of such agreements and to enforce specifically the terms and provisions thereof in any court having jurisdictionProposal. The Company shall, and shall cause its Affiliates and its and their respective Representatives to, immediately cease and cause to be terminated all existing ~~solicitation,~~ discussions or negotiations with any Person (except for the Company’s Affiliates and its and their respective Representatives or Parent and Parent’s Affiliates and its and their respective Representatives) conducted heretofore with respect to any ~~Company Takeover Proposal, or any inquiry or proposal that may reasonably be expected to lead to a~~ Company Takeover Proposal, request the prompt return or destruction of all confidential information previously furnished ~~in connection therewith~~ and immediately terminate all physical and electronic ~~dataroom~~ data room access previously granted to any such Person or its Representatives~~. (b)~~ . Notwithstanding anything to the ~~foregoing~~contrary herein, if at any time prior to obtaining the Company Shareholder Approval, the Company or any of its Representatives receives a bona fide oral or written Company Takeover Proposal, which Company Takeover Proposal did not result from any breach of this Section 5.02, (i) the Company and its Representatives may contact such Person making the Company Takeover Proposal or its Representatives to request that any bona fide Company Takeover Proposal made orally be made in writing and (ii) in response to the receipt of a bona fide written Company Takeover Proposal if made after the date of this Agreement that does not result from a breach (other than an immaterial breach) of this Section 5.03(a) by the Company and that the Company Board determines in good faith (after consultation with ~~its~~ outside legal counsel and a financial advisor) ~~that the failure to take the following actions would~~ constitutes or could reasonably be expected ~~to be inconsistent with its fiduciary duties under applicable Law, and that such Company Takeover Proposal constitutes or is reasonably likely~~ to lead to a Superior Company Proposal, the Company and its Representatives may (~~and may authorize and permit its Affiliates and its and their Representatives to), subject to compliance with Section 5.02(e), (A~~1) ~~enter into an Acceptable Confidentiality Agreement with the Person making the Company Takeover Proposal and~~ furnish information ~~pursuant to an Acceptable Confidentiality Agreement (including non-public information and data)~~ with respect to the Company and the Company Subsidiaries to the Person making such Company Takeover Proposal (and its Representatives) (provided that all such information has previously been provided to Parent or is provided to Parent prior to or substantially ~~concurrent~~ concurrently with the ~~time it is provided~~ provision of such information to such Person)) pursuant to a customary confidentiality agreement no less restrictive, in the aggregate, than the Confidentiality Agreement and (B2) participate in discussions regarding the terms of such Company Takeover ~~Proposal~~ Proposal, including terms of a Company Acquisition Agreement with respect thereto, and the negotiation of such terms ~~with, and only with,~~ with the Person making such Company Takeover Proposal (and such Person’s Representatives). ~~Without limiting~~ Notwithstanding anything to the foregoing, it is agreed that any violation of the restrictions set forth in this Section 5.02 by any Representative of the Company or any of its Affiliates shall constitute a breach of this Section 5.02 by the Company. (c) Except as set forth below, neither the Company Board nor any committee thereof shall (i) (A) withdraw or fail to make when required by this Agreement (or modify in any manner adverse to Parent), or propose or agree to withdraw or fail to make when required by this Agreement (or modify in any manner adverse to Parent)contrary herein, the Company ~~Board Recommendation~~ may grant a waiver, amendment or ~~(B) adopt, recommend~~ release under any confidentiality or ~~declare advisable, or propose or agree~~ standstill agreement to ~~adopt, recommend or declare advisable, any~~ the extent necessary to allow a confidential Company Takeover Proposal (any action described in this clause (i) being referred to as a “Company Adverse Recommendation Change”) or (ii) adopt, recommend or declare advisable, or propose or agree to adopt, recommend or declare advisable, or allow the Company or any of its Affiliates to execute or enter into, any confidentiality agreement (other than an Acceptable Confidentiality Agreement) letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, alliance agreement, partnership agreement or other similar agreement or arrangement (an “Acquisition Agreement”) constituting, or that may reasonably be expected to lead to, a Company Takeover Proposal. Notwithstanding the foregoing, at any time prior to obtaining the Company Shareholder Approval, the Company Board may (I) make a Company Adverse Recommendation Change or (II) cause the Company to enter into an Acquisition Agreement constituting or that may reasonably be expected to lead to a Company Takeover Proposal not obtained in violation of this Section 5.02 and terminate this Agreement pursuant to Section 8.01(c)(ii), in either case if the Company Board determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation), that (x) in the case of clause (I), where the Company Adverse Recommendation Change is made in response to an Intervening Event, or the consequences thereof, and the failure to take such action would reasonably be expected to be ~~inconsistent with the directors’ fiduciary duties under applicable Law and (y) in the case of (A) clause (I) where such Company Adverse Recommendation Change is~~ made ~~in response~~ to a Company Takeover Proposal, or (B) clause (II), such Company Takeover Proposal constitutes a Superior Company Proposal; provided, however, that the Company shall not be entitled to make a Company Adverse Recommendation Change or take any action set forth in clause (II) unless (1) the Company has given Parent at least five Business Days’ prior written notice (a “Company Notice of Recommendation Change”) (it being understood and agreed that any amendment to any material term of any Superior Company Proposal shall require a new Company Notice of Recommendation Change and a new notice period (which shall be two Business Days instead of five Business Days)) advising Parent that the Company Board intends to take such action (which notice shall specify the identity of the party making such Superior Company Proposal and the material terms thereof and, in the case of an Intervening Event, specifying the details thereof), (2) the Company has negotiated, and has caused its Representatives to negotiate, in good faith with Parent during such notice period, to the extent Parent wishes to negotiate, to enable Parent to propose in writing a binding offer to effect revisions to the terms of this Agreement such that it would cause such Superior Company Proposal to no longer constitute a Superior Company Proposal or for such Intervening Event to no longer warrant a Company Adverse Recommendation Change, and (3) following the end of such notice period, the Company Board or any committee thereof shall have considered in good faith such binding offer or Intervening Event, and shall have determined that the Superior Company Proposal would continue to constitute a Superior Company Proposal if the revisions proposed in such binding offer were to be given effect or that such Intervening Event continues to warrant a Company Adverse Recommendation Change; and provided, further that any purported termination of this Agreement pursuant to this sentence shall be void and of no force and effect unless the termination is in accordance with Section 8.01 and, to the extent required under the terms of this Agreement, the Company pays or causes to be paid to Parent the applicable Company Termination Fee in accordance with Section 6.06 prior to or concurrently with such termination so long as Parent has provided the Company with wire instructions for such payment. (d) In addition to the obligations of the Company set forth in paragraphs (a) through (c) of this Section 5.02, the Company shall (i) promptly (and in any event within 24 hours of receipt thereof by an officer or director of the Company) advise Parent orally and in writing of any Company Takeover Proposal or any inquiry or proposal that may reasonably be expected to lead to a Company Takeover Proposal, the material terms and conditions of any such Company Takeover Proposal or inquiry or proposal (including any changes thereto) and the identity of the Person making any such Company Takeover Proposal or inquiry or proposal, (ii) keep Parent informed in all material respects on a reasonably current basis of the status and details (including any change to the terms thereof) of any Company Takeover Proposal, and (iii) provide to Parent as soon as practicable after receipt or delivery thereof copies of all correspondence and other written and electronic material exchanged between the Company or any of the Company Subsidiaries and any Person that describes any of the material terms or conditions of any Company Takeover Proposal. (e) Nothing contained in this Section 5.02 shall prohibit the Company from (i) issuing a “stop-look-and-listen communication” pursuant to Rule 14d-9(f) promulgated under the Exchange Act or taking and disclosing to its shareholders positions required by Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act, in each case after the commencement of a tender offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act), (ii) issuing a statement in connection with a Company Takeover Proposal that does not involve the commencement of a tender offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act), so long as the statement includes no more information than would be required for a “stop-look-and-listen communication” under Rule 14d-9(f) promulgated under the Exchange Act if such provision was applicable, or (iii) making any disclosure to the shareholders of the Company if, in the good faith judgment of the Company Board (after consultation with outside counsel) failure to so disclose would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law; provided, however, that in no event shall the Company or the Company Board so long as the Company promptly notifies Parent thereof after granting any such waiver, amendment or ~~any committee thereof take, or agree or resolve to take, any action prohibited by Section 5.02(c)~~release. ~~(f) For purposes of this Agreement:~~

Appears in 1 contract

Samples: Merger Agreement (Algonquin Power & Utilities Corp.)

No Solicitation by the Company; Company Board Recommendation. (a) ~~The~~ Except as otherwise expressly permitted by this Section 5.02, from the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with its terms, the Company ~~shall~~ will not, ~~and shall cause~~ nor will it authorize or permit any of its Affiliates ~~and~~ or any of its ~~and~~ or their respective directors, officers ~~and~~ or employees ~~and each~~ or any of ~~its and~~ their respective investment bankers, accountants, attorneys ~~and~~ or other advisors, agents or representatives (collectively, “Representatives”) ~~not~~ to, directly or indirectly: (i) ~~directly~~ solicit or ~~indirectly solicit~~initiate, ~~initiate~~ or knowingly encourage, induce or ~~facilitate~~ facilitate, any ~~Company~~ Takeover Proposal or any inquiry, ~~discussion~~ proposal or ~~proposal~~ request for information that may reasonably be expected to lead to a ~~Company~~ Takeover Proposal, ; (ii) ~~directly or indirectly~~ other than solely to the extent necessary to inform a Person of the existence of the provisions contained in this Section 5.02, participate in any discussions or negotiations with any Person ~~regarding~~(other than with Parent, Merger Sub or any designees of Parent or Merger Sub) with respect to, or furnish to any Person (other than to Parent, Merger Sub or any designees of Parent or Merger Sub) any information with respect to, or cooperate in any way with any Person (~~whether~~ other than with Parent, Merger Sub or ~~not a Person making a Company Takeover Proposal~~any designees of Parent or Merger Sub) with respect to, any ~~Company~~ Takeover Proposal or any ~~inquiry~~ inquiry, proposal or ~~proposal~~ request for information that may reasonably be expected to lead to a ~~Company~~ Takeover Proposal; (iii) agree to, approve, endorse, recommend or consummate any Takeover Proposal or (iii) waive, terminate, modify, amend, release or assign any provisions of any confidentiality or standstill agreement (or similar agreement) to which it is a party or fail to enforce, to the fullest extent permitted under applicable Law, the provisions of any such agreement, including by obtaining an injunction to prevent any breach of such agreements and to enforce specifically the terms and provisions thereof in any court having jurisdiction. The Company shall, and shall cause its Affiliates and its and their respective Representatives to, immediately cease and cause to be terminated all existing solicitation, discussions or negotiations with any Person conducted heretofore with respect to any Company Takeover Proposal, or any inquiry or proposal that may reasonably be expected to lead to a Company Takeover Proposal, request the prompt return or destruction of all confidential information previously furnished in connection therewith and immediately terminate all physical and electronic dataroom access previously granted to any such Person or its Representatives. (b) Notwithstanding the foregoing, if at any time prior to obtaining the Company Shareholder Approval, the Company or any of its Representatives receives a bona fide oral or written Company Takeover Proposal, which Company Takeover Proposal did not result from any breach of this Section 5.02, (i) the Company and its Representatives may contact such Person making the Company Takeover Proposal or its Representatives to request that any bona fide Company Takeover Proposal made orally be made in writing and (ii) in response to a bona fide written Company Takeover Proposal if the Company Board determines in good faith (after consultation with its outside counsel and financial advisor) that the failure to take the following actions would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, and that such Company Takeover Proposal constitutes or is reasonably likely to lead to a Superior Company Proposal, the Company may (and may authorize and permit its Affiliates and its and their Representatives to), subject to compliance with Section 5.02(e), (A) enter into an Acceptable Confidentiality Agreement with the Person making the Company Takeover Proposal and furnish information pursuant to an Acceptable Confidentiality Agreement (including non-public information and data) with respect to the Company and the Company Subsidiaries to the Person making such Company Takeover Proposal (and its Representatives) (provided that all such information has previously been provided to Parent or is provided to Parent prior to or substantially concurrent with the time it is provided to such Person), and (B) participate in discussions regarding the terms of such Company Takeover Proposal and the negotiation of such terms with, and only with, the Person making such Company Takeover Proposal (and such Person’s Representatives). Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 5.02 by any Representative of the Company or any of its Affiliates shall constitute a breach of this Section 5.02 by the Company. (c) Except as set forth below, neither the Company Board nor any committee thereof shall (i) (A) withdraw or fail to make when required by this Agreement (or modify in any manner adverse to Parent), or propose or agree to withdraw or fail to make when required by this Agreement (or modify in any manner adverse to Parent), the Company Board Recommendation or (B) adopt, recommend or declare advisable, or propose or agree to adopt, recommend or declare advisable, any Company Takeover Proposal (any action described in this clause (i) being referred to as a “Company Adverse Recommendation Change”) or (ii) adopt, recommend or declare advisable, or propose or agree to adopt, recommend or declare advisable, or allow the Company or any of its Affiliates to execute or enter into, any confidentiality agreement (other than an Acceptable Confidentiality Agreement) letter of intent, memorandum of understanding, agreement in ~~principle~~principle or similar document, ~~merger agreement~~or any Contract (other than an Acceptable Confidentiality Agreement entered into compliance with this Section 5.02) or commitment contemplating any Takeover Proposal; (iv) take any action to make the provisions of any state takeover statute or similar applicable Law (including the restrictions under Section 203 of the DGCL), ~~acquisition agreement~~or any anti-takeover provision in the Company Charter, ~~option agreement~~inapplicable to any transactions contemplated by any Takeover Proposal; (v) grant any waiver, ~~joint venture agreement, alliance agreement, partnership agreement~~ amendment or ~~other~~ release under any standstill or similar agreement ~~or arrangement~~ (~~an “Acquisition Agreement”) constituting, or that may reasonably be expected to lead to, a Company Takeover Proposal. Notwithstanding the foregoing, at any time prior to obtaining~~ and the Company ~~Shareholder Approval,~~ shall promptly take all action necessary to terminate or cause to be terminated any such waiver previously granted with respect to any provision of any such standstill or similar agreement to the ~~Company Board may (I) make a Company Adverse Recommendation Change~~ extent permitted thereby to do so); or (IIvi) ~~cause~~ enter into any Contract that would restrict the ability of the Company to enter into an Acquisition Agreement constituting or that may reasonably be expected to lead to a Company Takeover Proposal not obtained in violation of this Section 5.02 and terminate this Agreement pursuant to Section 8.01(c)(ii), in either case if the Company Board determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation), that (x) in the case of clause (I), where the Company Adverse Recommendation Change is made in response to an Intervening Event, or the consequences thereof, and the failure to take such action would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law and (y) in the case of (A) clause (I) where such Company Adverse Recommendation Change is made in response to a Company Takeover Proposal, or (B) clause (II), such Company Takeover Proposal constitutes a Superior Company Proposal; provided, however, that the Company shall not be entitled to make a Company Adverse Recommendation Change or take any action set forth in clause (II) unless (1) the Company has given Parent at least five Business Days’ prior written notice (a “Company Notice of Recommendation Change”) (it being understood and agreed that any amendment to any material term of any Superior Company Proposal shall require a new Company Notice of Recommendation Change and a new notice period (which shall be two Business Days instead of five Business Days)) advising Parent that the Company Board intends to take such action (which notice shall specify the identity of the party making such Superior Company Proposal and the material terms thereof and, in the case of an Intervening Event, specifying the details thereof), (2) the Company has negotiated, and has caused its Representatives to negotiate, in good faith with Parent during such notice period, to the extent Parent wishes to negotiate, to enable Parent to propose in writing a binding offer to effect revisions to the terms of this Agreement such that it would cause such Superior Company Proposal to no longer constitute a Superior Company Proposal or for such Intervening Event to no longer warrant a Company Adverse Recommendation Change, and (3) following the end of such notice period, the Company Board or any committee thereof shall have considered in good faith such binding offer or Intervening Event, and shall have determined that the Superior Company Proposal would continue to constitute a Superior Company Proposal if the revisions proposed in such binding offer were to be given effect or that such Intervening Event continues to warrant a Company Adverse Recommendation Change; and provided, further that any purported termination of this Agreement pursuant to this sentence shall be void and of no force and effect unless the termination is in accordance with Section 8.01 and, to the extent required under the terms of this Agreement, the Company pays or causes to be paid to Parent the applicable Company Termination Fee in accordance with Section 6.06 prior to or concurrently with such termination so long as Parent has provided the Company with wire instructions for such payment. (d) In addition to the obligations of the Company set forth in paragraphs (a) through (c) of this Section 5.02, the Company shall (i) promptly (and in any event within 24 hours of receipt thereof by an officer or director of the Company) advise Parent orally and in writing of any Company Takeover Proposal or any inquiry or proposal that may reasonably be expected to lead to a Company Takeover Proposal, the material terms and conditions of any such Company Takeover Proposal or inquiry or proposal (including any changes thereto) and the identity of the Person making any such Company Takeover Proposal or inquiry or proposal, (ii) keep Parent informed in all material respects on a reasonably current basis of the status and details (including any change to the terms thereof) of any Company Takeover Proposal, and (iii) provide to Parent as soon as practicable after receipt or delivery thereof copies of all correspondence and other written and electronic material exchanged between the Company or any of the Company Subsidiaries and any Person that describes any of the material terms or conditions of any Company Takeover Proposal. (e) Nothing contained in this Section 5.02 shall prohibit the Company from (i) issuing a “stop-look-and-listen communication” pursuant to Rule 14d-9(f) promulgated under the Exchange Act or taking and disclosing to its shareholders positions required by Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act, in each case after the commencement of a tender offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act), (ii) issuing a statement in connection with a Company Takeover Proposal that does not involve the commencement of a tender offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act), so long as the statement includes no more information than would be required for a “stop-look-and-listen communication” under Rule 14d-9(f) promulgated under the Exchange Act if such provision was applicable, or (iii) making any disclosure to the shareholders of the Company if, in the good faith judgment of the Company Board (after consultation with outside counsel) failure to so disclose would reasonably be expected to be inconsistent comply with its ~~fiduciary duties~~ obligations under applicable Law; provided, however, that in no event shall the Company or the Company Board or any committee thereof take, or agree or resolve to take, any action prohibited by Section 5.02(c). (f) For purposes of this Agreement:this

Appears in 1 contract

Samples: Merger Agreement (Lattice Semiconductor Corp)

No Solicitation by the Company; Company Board Recommendation. (a) The Company shall not, ~~and~~ shall cause its Affiliates not to, and shall use reasonable efforts to cause its and their respective officers, directors, ~~officers and employees and each of its and their respective investment bankers~~principals, partners, managers, members, attorneys, accountants, ~~attorneys and~~ agents, employees, consultants, financial advisors or other ~~advisors, agents or~~ authorized representatives (collectively, “Representatives”) not to, (i) directly or indirectly solicit, initiate or knowingly encourage, induce or facilitate any Company Takeover Proposal or any ~~inquiry, discussion~~ inquiry or proposal that ~~may~~ would reasonably be expected to lead to a Company Takeover Proposal, in each case, except for this Agreement and the transactions contemplated hereby, or (ii) directly or indirectly participate in any discussions or negotiations with any Person (except for Parent and Parent’s Affiliates and its and their respective Representatives) regarding, or furnish to any ~~Person~~ such Person, any nonpublic information with respect to, or cooperate in any way with any such Person ~~(whether or not a Person making a Company Takeover Proposal)~~ with respect to, any Company Takeover Proposal or any inquiry or proposal that ~~may~~ would reasonably be expected to lead to a Company Takeover Proposal or (iii) waive, terminate, modify, amend, release or assign any provisions of any confidentiality or standstill agreement (or similar agreement) to which it is a party or fail to enforce, to the fullest extent permitted under applicable Law, the provisions of any such agreement, including by obtaining an injunction to prevent any breach of such agreements and to enforce specifically the terms and provisions thereof in any court having jurisdictionProposal. The Company shall, and shall cause its Affiliates and its and their respective Representatives to, immediately cease and cause to be terminated all existing ~~solicitation,~~ discussions or negotiations with any Person ~~conducted heretofore~~ (except for Parent and Parent’s Affiliates and its and their respective Representatives) with respect to any ~~Company Takeover Proposal, or any inquiry or proposal that may reasonably be expected to lead to a~~ Company Takeover Proposal, request the prompt return or destruction of all confidential information previously furnished ~~in connection therewith~~ and immediately terminate all physical and electronic ~~dataroom~~ data room access previously granted to any such Person or its Representatives~~. (b)~~ . Notwithstanding anything to the ~~foregoing~~contrary herein, if at any time prior to obtaining the Company Shareholder Approval, the Company or any of its Representatives receives a bona fide oral or written Company Takeover Proposal, which Company Takeover Proposal did not result from any breach of this Section 5.02, (i) the Company and its Representatives may contact such Person making the Company Takeover Proposal or its Representatives to request that any bona fide Company Takeover Proposal made orally be made in writing and (ii) in response to the receipt of a bona fide written Company Takeover Proposal if made after the date of this Agreement that does not result from a breach (other than an immaterial breach) of this Section 5.03(a) by the Company and that the Company Board determines in good faith (after consultation with ~~its~~ outside legal counsel and a financial advisor) ~~that the failure to take the following actions would~~ constitutes or could reasonably be expected ~~to be inconsistent with its fiduciary duties under applicable Law, and that such Company Takeover Proposal constitutes or is reasonably likely~~ to lead to a Superior Company Proposal, the Company and its Representatives may (~~and may authorize and permit its Affiliates and its and their Representatives to), subject to compliance with Section 5.02(e), (A~~1) ~~enter into an Acceptable Confidentiality Agreement with the Person making the Company Takeover Proposal and~~ furnish information ~~pursuant to an Acceptable Confidentiality Agreement (including non-public information and data)~~ with respect to the Company and the Company Subsidiaries to the Person making such Company Takeover Proposal (and its Representatives) (~~provided~~ provided, that (i) all such information has previously been provided to Parent or is provided to Parent prior to or ~~substantially concurrent~~ concurrently with the ~~time it is provided~~ provision of such information to such Person), ) pursuant to a customary confidentiality agreement that does not restrict the Company’s ability to comply with its obligations under this Section 5.03 and (B2) participate in discussions regarding the terms of such Company Takeover ~~Proposal~~ Proposal, including terms of a Company Acquisition Agreement with respect thereto, and the negotiation of such terms ~~with, and only with,~~ with the Person making such Company Takeover Proposal (and such Person’s Representatives). Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section ~~5.02~~ 5.03(a) by any Representative of the Company or any of its ~~Affiliates~~ Affiliates, in each case, at the Company’s direction, shall constitute a breach of this Section ~~5.02~~ 5.03(a) by the Company. Notwithstanding anything to the contrary herein, to the extent the Company Board determines in good faith (after consultation with outside legal counsel) that it is required in order for the Company Board to comply with its fiduciary obligations, the Company may grant a waiver, amendment or release under any confidentiality or standstill agreement to the extent necessary to allow a confidential Company Takeover Proposal to be made to the Company or the Company Board so long as the Company Board promptly (and in any event, within one Business Day) notifies Parent thereof after granting any such waiver, amendment or release. (cb) Except as set forth ~~below~~in Section 5.03(a), Section 5.03(c) and Section 5.03(e), and except for the public disclosure of a Company Recommendation Change Notice, neither the Company Board nor any committee thereof shall (i) ~~(A) withdraw or fail to make when required by this Agreement (or~~ withdraw, change, qualify, withhold, modify in any manner adverse to Parent), or propose ~~or agree~~ publicly to ~~withdraw or fail to make when required by this Agreement (or~~ withdraw, change, qualify, withhold, modify in any manner adverse to Parent), the Company Board Recommendation, (ii) adopt, approve or recommend, or propose publicly to adopt, approve or recommend, any Company Takeover Proposal, (iii) fail to include in the Proxy Statement the Company Board Recommendation or (Biv) ~~adopt~~take any formal action or make any recommendation or public statement in connection with a tender offer or exchange offer (except for a recommendation against such offer or a customary “stop, ~~recommend or declare advisable, or propose or agree to adopt, recommend or declare advisable, any Company Takeover Proposal~~ look and listen” communication of the type contemplated by Rule 14d-9(f) under the Exchange Act) (any action ~~described~~ in ~~this clause~~ the foregoing clauses (ii)–(iv) being referred to as a “Company Adverse Recommendation Change”). Except as set forth in Section 5.03(a), Section 5.03(c) and Section 5.03(e), neither the Company Board nor any committee thereof shall authorize, permit, approve or ~~(ii) adopt, recommend or declare advisable~~recommend, or propose publicly to authorize, permit, approve or ~~agree to adopt, recommend or declare advisable~~recommend, or allow the Company or any of its Affiliates to execute or enter into, any ~~confidentiality agreement (other than an Acceptable Confidentiality Agreement)~~ letter of intent, memorandum of understanding, agreement in principle, ~~merger agreement, acquisition agreement, option agreement, joint venture agreement, alliance agreement, partnership~~ agreement or ~~other similar agreement or arrangement (an “Acquisition Agreement”)~~ commitment constituting, or that ~~may~~ would reasonably be expected to lead to, a any Company Takeover Proposal. , or requiring, or that would reasonably be expected to cause, the Company to abandon or terminate this Agreement (a “Company Acquisition Agreement”). (c) Notwithstanding anything to the ~~foregoing~~contrary herein, at any time prior to obtaining the Company Shareholder Approval, the Company Board may ~~(I)~~ make a Company Adverse Recommendation Change if (i) a Company Intervening Event has occurred or (IIii) ~~cause~~ the Company ~~to enter into~~ has received a Superior Company Proposal that does not result from a breach (other than an ~~Acquisition Agreement constituting or that may reasonably be expected to lead to a~~ immaterial breach) of Section 5.03 by the Company ~~Takeover Proposal not obtained in violation of this Section 5.02 and terminate this Agreement pursuant to Section 8.01(c)(ii)~~and, in ~~either case~~ each case, if the Company Board determines in good faith (after consultation with outside legal counsel and a financial ~~advisor of nationally recognized reputation),~~ advisor) that ~~(x) in~~ the ~~case of clause (I), where the~~ failure to effect a Company Adverse Recommendation Change ~~is made~~ as a result of the occurrence of such Company Intervening Event or in response to ~~an Intervening Event~~the receipt of such Superior Company Proposal, or as the ~~consequences thereof~~case may be, ~~and the failure to take such action~~ would reasonably ~~be expected to~~ likely be inconsistent with the ~~directors’~~ Company Board’s fiduciary duties under applicable Law and (y) in the case of (A) clause (I) where such Company Adverse Recommendation Change is made in response to a Company Takeover Proposal, or (B) clause (II), such Company Takeover Proposal constitutes a Superior Company ProposalLaw; provided, however, that the Company ~~shall~~ Board may not ~~be entitled to~~ make a such Company Adverse Recommendation Change ~~or take any action set forth in clause (II)~~ unless (1) the Company Board has ~~given Parent at least five Business Days’~~ provided prior written notice to Parent (a “Company ~~Notice of~~ Recommendation ~~Change~~Change Notice”) (that it ~~being understood and agreed that any amendment~~ is prepared to ~~any material term of any Superior~~ effect a Company ~~Proposal shall require a new Company Notice of~~ Adverse Recommendation Change ~~and a new notice period~~ at least four (~~which shall be two~~ 4) Business Days ~~instead of five Business Days)) advising Parent that the Company Board intends~~ prior to ~~take~~ taking such ~~action (~~action, which notice shall specify the ~~identity of the party making~~ basis for such ~~Superior~~ Company ~~Proposal and the material terms thereof~~ Adverse Recommendation Change and, in the case of ~~an Intervening Event~~a Superior Proposal, ~~specifying~~ attaching the ~~details thereof)~~most current draft of any Company Acquisition Agreement with respect to such Superior Company Proposal or, if no draft exists, a summary of the material terms and conditions of such Superior Company Proposal (~~2) the~~ it being understood that such Company Recommendation Change Notice shall not in itself be deemed a Company Adverse Recommendation Change and that if Parent has ~~negotiated, and has caused its Representatives to negotiate, in good faith with Parent during such notice period, to the extent Parent wishes to negotiate, to enable Parent to propose~~ committed in writing ~~a binding offer~~ to ~~effect revisions~~ any changes to the terms of this Agreement ~~such that it would cause such Superior Company Proposal~~ and there has been any subsequent material revision or amendment to ~~no longer constitute~~ the terms of a Superior Company ~~Proposal or for~~ Proposal, a new notice to which the provisions of clauses (2), (3) and (4) of this Section 5.03(c) shall apply mutatis mutandis except that, in the case of such ~~Intervening Event~~ a new notice, all references to ~~no longer warrant~~ four (4) Business Days in this Section 5.03(c) shall be deemed to be two (2) Business Days), (2) during the four (4) Business Day period after delivery of the Company Recommendation Change Notice, the Company and its Representatives negotiate in good faith with Parent and its Representatives regarding any revisions to this Agreement that Parent proposes to make and (3) at the end of such four (4) Business Day period and taking into account any changes to the terms of this Agreement committed to in writing by Parent, the Company Board determines in good faith (after consultation with outside legal counsel and a financial advisor) that the failure to make such a Company Adverse Recommendation ~~Change~~Change would be inconsistent with its fiduciary duties under applicable Law, and ~~(3) following~~ that, in the ~~end~~ case of such notice period, the Company Board or any committee thereof shall have considered in good faith such binding offer or Intervening Event, and shall have determined that the Superior Company Proposal would continue to constitute a Superior Company Proposal if the revisions proposed in such binding offer were to be given effect or that such Intervening Event continues to warrant a Company Adverse Recommendation ~~Change; and provided~~Change with respect to a Company Takeover Proposal, further that any purported termination of this Agreement pursuant to this sentence shall be void and of no force and effect unless the termination is in accordance with Section 8.01 and, to the extent required under the terms of this Agreement, the such Company ~~pays or causes to be paid to Parent the applicable~~ Takeover Proposal still constitutes a Superior Company ~~Termination Fee in accordance with Section 6.06 prior to or concurrently with such termination so long as Parent has provided the Company with wire instructions for such payment~~Proposal. (d) ~~In addition to the obligations of the Company set forth in paragraphs (a) through (c) of this Section 5.02, the~~ The Company shall ~~(i)~~ promptly (and in any event ~~within 24~~ no later than the later of (i) twenty-four (24) hours ~~of receipt thereof by an officer~~ or ~~director of~~ (ii) 5:00 p.m. New York City time on the ~~Company~~next Business Day) advise Parent orally and in writing of any ~~Company Takeover Proposal or any inquiry or proposal that may reasonably be expected to lead to a~~ Company Takeover Proposal, the material terms and conditions of any such Company Takeover Proposal ~~or inquiry or proposal (including any changes thereto)~~ and the identity of the Person making any such Company Takeover ~~Proposal or inquiry or proposal, (ii)~~ Proposal. The Company shall keep Parent reasonably informed in all material respects on a reasonably current basis (and in any event no later than the later of (i) twenty-four (24) hours or (ii) 5:00 p.m. New York City time on the next Business Day) of the material terms and status ~~and details~~ (including any change to the terms thereof) of any Company Takeover Proposal, and (iii) provide to Parent as soon as practicable after receipt or delivery thereof copies of all correspondence and other written and electronic material exchanged between the Company or any of the Company Subsidiaries and any Person that describes any of the material terms or conditions of any Company Takeover Proposal. (e) Nothing contained in this Section ~~5.02~~ 5.03 shall prohibit the Company from (i) ~~issuing a “stop-look-and-listen communication” pursuant to~~ complying with Rule ~~14d-9(f)~~ 14d-9 and Rule 14e-2 promulgated under the Exchange Act or taking and disclosing to its shareholders positions required by Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act, in each case after the commencement of a tender offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act), (ii) issuing a statement in connection with a Company Takeover Proposal that does not involve the commencement of a tender offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act), so long as the statement includes no more information than would be required for a “stop-look-and-listen communication” under Rule 14d-9(f) promulgated under the Exchange Act if such provision was applicable, or (iii) making any disclosure to the shareholders of the Company if, in the ~~good~~ good-faith judgment of the Company Board (after consultation with outside legal counsel) failure to so disclose would ~~reasonably be expected to~~ be inconsistent with its ~~fiduciary duties~~ obligations under applicable Law~~; provided, however, that in no event shall the Company or the Company Board or any committee thereof take, or agree or resolve to take, any action prohibited by Section 5.02(c)~~. (f) For purposes of this Agreement:

Appears in 1 contract

Samples: Merger Agreement (Vectren Utility Holdings Inc)

No Solicitation by the Company; Company Board Recommendation. (a) The Company shall not, and shall ~~cause~~ not authorize any of its Affiliates ~~and its and their respective directors, officers and employees and each~~ or any of its and their respective ~~investment bankers~~officers, directors, principals, partners, managers, members, attorneys, accountants, ~~attorneys and~~ agents, employees, consultants, financial advisors or other ~~advisors, agents or~~ authorized representatives (collectively, “"Representatives”") ~~not~~ to, (i) directly or indirectly solicit, initiate or knowingly encourage, induce or facilitate any Company Takeover Proposal or any ~~inquiry, discussion~~ inquiry or proposal that ~~may~~ would reasonably be expected to lead to a Company Takeover Proposal, in each case, except for this Agreement and the transactions contemplated hereby, or (ii) directly or indirectly participate in any discussions or negotiations with any Person (except for with Parent and Parent's Affiliates and their respective Representatives) regarding, or furnish to any ~~Person~~ such Person, any nonpublic information with respect to, or cooperate in any way with any such Person ~~(whether or not a Person making a Company Takeover Proposal)~~ with respect to, any Company Takeover Proposal or any inquiry or proposal that ~~may~~ would reasonably be expected to lead to a Company Takeover Proposal or (iii) waive, terminate, modify, amend, release or assign any provisions of any confidentiality or standstill agreement (or similar agreement) to which it is a party or fail to enforce, to the fullest extent permitted under applicable Law, the provisions of any such agreement, including by obtaining an injunction to prevent any breach of such agreements and to enforce specifically the terms and provisions thereof in any court having jurisdictionProposal. The Company shall, and shall cause its Affiliates and its and their respective Representatives to, immediately cease and cause to be terminated all existing ~~solicitation~~discussions, ~~discussions~~ solicitation or negotiations with or of any Person (except for with Parent and Parent's Affiliates and their respective Representatives) conducted heretofore with respect to any Company Takeover Proposal, or any inquiry or proposal that ~~may~~ would reasonably be expected to lead to a Company Takeover Proposal, request the prompt return or destruction of all confidential information previously furnished ~~in connection therewith~~ and ~~immediately~~ terminate all physical and electronic ~~dataroom~~ data room access previously granted to any such Person or its Representatives~~. (b)~~ . Notwithstanding anything to the ~~foregoing~~contrary herein, if at any time prior to obtaining the Company ~~Shareholder~~ Stockholder Approval, in response to the ~~Company or any~~ receipt of ~~its Representatives receives~~ a bona ~~fide oral or~~ fide, unsolicited written Company Takeover ~~Proposal, which Company Takeover~~ Proposal ~~did~~ made after the date of this Agreement that does not result from ~~any~~ a breach of this Section ~~5.02, (i~~5.02(a) by the Company and ~~its Representatives may contact such Person making the Company Takeover Proposal or its Representatives to request~~ that ~~any bona fide Company Takeover Proposal made orally be made in writing and (ii) in response to a bona fide written Company Takeover Proposal if~~ the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisor) ~~that the failure to take the following actions would~~ constitutes or could reasonably be expected ~~to be inconsistent with its fiduciary duties under applicable Law, and that such Company Takeover Proposal constitutes or is reasonably likely~~ to lead to a Superior Company Proposal, the Company and its Representatives may (~~and may authorize and permit its Affiliates and its and their Representatives to), subject to compliance with Section 5.02(e), (A~~1) ~~enter into an Acceptable Confidentiality Agreement with the Person making the Company Takeover Proposal and~~ furnish information ~~pursuant to an Acceptable Confidentiality Agreement (including non-public information and data)~~ with respect to the Company and the Company Subsidiaries to the Person making such Company Takeover Proposal (and its Representatives) (provided that all such information has previously been provided to Parent or is provided to Parent prior to or substantially ~~concurrent~~ concurrently with the ~~time it is provided~~ provision of such information to such Person), ) pursuant to a customary confidentiality agreement that is no less favorable in the aggregate to the Company than the Confidentiality Agreement (a copy of which shall be promptly (in all events within twenty-four (24) hours) provided for informational purposes only to Parent) and (B2) participate in discussions regarding the terms of such Company Takeover ~~Proposal~~ Proposal, including terms of a Company Acquisition Agreement with respect thereto, and the negotiation of such terms ~~with, and only with,~~ with the Person making such Company Takeover Proposal (and such Person’s 's Representatives), but in each case referred to in the foregoing clauses (1) and (2), only if (A) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisor) that the failure to take such action could reasonably likely be inconsistent with its fiduciary duties to stockholders under applicable Law and (B) the Company shall have delivered to Parent a prior written notice advising Parent that it intends to take such action. ~~Without limiting~~ Notwithstanding anything to the ~~foregoing~~contrary herein, ~~it is agreed that~~ the Company may grant a waiver, amendment or release under any ~~violation of~~ confidentiality or standstill agreement solely to the ~~restrictions set forth in this Section 5.02 by any Representative of~~ extent necessary to allow a confidential Company Takeover Proposal to be made to the Company or ~~any of its Affiliates shall constitute a breach of this Section 5.02 by~~ the ~~Company~~Company Board. (cb) Except as set forth ~~below~~in Section 5.02(a), Section 5.02(c), Section 5.02(d) and Section 5.02(f), and except for the public disclosure of a Recommendation Change Notice, neither the Company Board nor any committee thereof shall (i) ~~(A) withdraw or fail to make when required by this Agreement (~~withdraw, change, qualify, withhold or modify in any manner adverse to Parent), or propose ~~or agree~~ publicly to ~~withdraw or fail to make when required by this Agreement (~~withdraw, change, qualify, withhold or modify in any manner adverse to Parent), the Company Board ~~Recommendation or~~ Recommendation, (Bii) adopt, ~~recommend~~ approve or ~~declare advisable~~recommend, or propose ~~or agree~~ publicly to adopt, ~~recommend~~ approve or ~~declare advisable~~recommend, any Company Takeover Proposal, (iii) fail to include in the Proxy Statement the Company Board Recommendation, (iv) take any formal action or make any recommendation or public statement in connection with a tender offer or exchange offer that constitutes a Company Takeover Proposal (except for either a recommendation against such offer or a "stop, look and listen" communication of the type contemplated by Rule 14d-9(f) under the Exchange Act) or (v) resolve or agree to take any of the foregoing actions (any action ~~described~~ in ~~this clause~~ the foregoing clauses (ii)–(v) being referred to as a “"Company Adverse Recommendation Change”"). Except as set forth in Section 5.02(a), Section 5.02(c), Section 5.02(d) and Section 5.02(f), neither the Company Board nor any committee thereof shall authorize, permit, approve or ~~(ii) adopt, recommend or declare advisable~~recommend, or propose publicly to authorize, permit, approve or ~~agree to adopt, recommend or declare advisable~~recommend, or allow the Company or any of its Affiliates to execute or enter into, any ~~confidentiality agreement (other than an Acceptable Confidentiality Agreement)~~ letter of intent, memorandum of understanding, agreement in principle, ~~merger agreement, acquisition agreement, option agreement, joint venture agreement, alliance agreement, partnership~~ agreement or ~~other similar agreement or arrangement (an “Acquisition Agreement”)~~ commitment constituting, or that ~~may~~ would reasonably be expected to lead to, a any Company Takeover Proposal. , or requiring the Company to abandon or terminate this Agreement (a "Company Acquisition Agreement"). (c) Notwithstanding anything to the ~~foregoing~~contrary herein, at any time prior to obtaining the Company ~~Shareholder~~ Stockholder Approval, the Company Board may (I) make a Company Adverse Recommendation Change or (II) cause the Company to enter into an Acquisition Agreement constituting or that may reasonably be expected to lead to a Company Takeover Proposal not obtained in violation of this Section 5.02 and terminate this Agreement pursuant to Section ~~8.01(c)(ii)~~8.01(c)(i) only if the Company receives a bona fide, ~~in either case if~~ unsolicited written Company Takeover Proposal that does not result from a breach of Section 5.02(a) by the Company and the Company Board determines in good faith (after consultation with its outside legal counsel and a financial advisor and after taking into account any changes to the terms of ~~nationally recognized reputation), that~~ this Agreement proposed by Parent during the three (x3) Business Day period referred to in ~~the case of~~ clause (I), where the Company Adverse Recommendation Change is made in response to an Intervening Event, or the consequences thereof, and the failure to take such action would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law and (y3) ~~in the case of (A~~below) ~~clause (I) where such Company Adverse Recommendation Change is made in response to a Company Takeover Proposal, or (B) clause (II),~~ that such Company Takeover Proposal constitutes a Superior Company Proposal; provided, however, that the Company ~~shall~~ Board may not ~~be entitled~~ terminate this Agreement pursuant to ~~make a Company Adverse Recommendation Change or take any action set forth in clause (II)~~ Section 8.01(c)(i), unless (1) the Company Board has ~~given Parent at least five Business Days’~~ provided prior written notice to Parent (a “"Superior Proposal Notice") that it is prepared to terminate this Agreement pursuant to Section 8.01(c)(i) in response to a Superior Company ~~Notice~~ Proposal, which notice shall include the material terms and conditions of ~~Recommendation Change”~~such Superior Company Proposal, (2) if requested by Parent, during the three (3) Business Day period after delivery of the Superior Proposal Notice, the Company and its Representatives negotiate in good faith with Parent and its Representatives regarding any revisions to this Agreement committed to in writing by Parent and (3) at the end of such three (3) Business Day period and taking into account any changes to the terms of this Agreement committed to in writing by Parent (it being understood and agreed that if Parent has committed in writing to any changes to the terms of this Agreement and there has been any subsequent amendment to any material term of ~~any~~ such Superior Company ~~Proposal shall require a new Company Notice of Recommendation Change and a new notice period (which shall be two Business Days instead of five Business Days)) advising Parent that~~ Proposal, the Company Board ~~intends to take~~ shall provide a new Superior Proposal Notice and an additional two (2) Business Day period from the date of such ~~action (which~~ notice shall ~~specify~~ apply), the ~~identity~~ Company Board determines in good faith (after consultation with its outside legal counsel and financial advisor) that the failure to terminate this Agreement pursuant to Section 8.01(c)(i) as a result of ~~the party making~~ such Superior Company Proposal ~~and~~ would reasonably likely be inconsistent with the ~~material terms thereof and, in the case of an Intervening Event, specifying the details thereof~~Company Board's fiduciary duties under applicable Law. In determining whether to terminate this Agreement pursuant to Section 8.01(c)(i), ~~(2)~~ the Company has negotiated, and has caused its Representatives to negotiate, in good faith with Parent during such notice period, to the extent Parent wishes to negotiate, to enable Parent to propose in writing a binding offer to effect revisions Board shall take into account any changes to the terms of this Agreement proposed by Parent in response to such ~~that it would cause such~~ a Superior Proposal Notice. (d) Notwithstanding anything to the contrary herein, at any time prior to obtaining the Company ~~Proposal to no longer constitute~~ Stockholder Approval, the Company Board may make a Company Adverse Recommendation Change if (i) a Company Intervening Event has occurred or (ii) the Company has received a Superior Company Proposal ~~or for~~ that does not result from a breach of Section 5.02(a) by the Company and, in each case, if the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisor and after taking into account any changes to the terms of this Agreement proposed by Parent during the three (3) Business Day period referred to in clause (3) below) that the failure to effect a Company Adverse Recommendation Change as a result of the occurrence of such Company Intervening Event or in response to ~~no longer warrant a~~ the receipt of such Superior Company Proposal, as the case may be, would reasonably likely be inconsistent with the Company Board's fiduciary duties under applicable Law; provided, however, that the Company Board may not make such Company Adverse Recommendation Change, unless (1) the Company Board has provided three (3) Business Days prior written notice to Parent (a "Recommendation Change Notice") that it is prepared to effect a Company Adverse Recommendation Change in response to the occurrence of a Company Intervening Event or the receipt of a Superior Company Proposal, which notice shall, in the case of a Company Adverse Recommendation Change as a result of an Intervening Event, identify such event or in response to the receipt of a Superior Company Proposal, include the material terms and conditions of such Superior Company Proposal, (2) if requested by Parent, during the three (3) Business Day period after delivery of the Recommendation Change Notice, the Company and its Representatives negotiate in good faith with Parent and its Representatives regarding any revisions to this Agreement committed to in writing by Parent and (3) ~~following~~ at the end of such ~~notice period~~three (3) Business Day period and taking into account any changes to the terms of this Agreement committed to in writing by Parent (it being understood and agreed that if Parent has committed in writing to any changes to the terms of this Agreement and there has been any subsequent amendment to any material term of such Superior Company Proposal, the Company Board ~~or any committee thereof~~ shall ~~have considered~~ provide a new Recommendation Change Notice and an additional two (2) Business Day period from the date of such notice shall apply), the Company Board determines in good faith ~~such binding offer or Intervening Event,~~ (after consultation with its outside legal counsel and ~~shall have determined~~ financial advisor) that the ~~Superior Company Proposal would continue~~ failure to ~~constitute a Superior Company Proposal if the revisions proposed in~~ make such ~~binding offer were to be given effect or that such Intervening Event continues to warrant~~ a Company Adverse Recommendation ~~Change; and provided, further that any purported termination of this Agreement pursuant~~ Change would reasonably likely be inconsistent with its fiduciary duties to ~~this sentence shall be void and of no force and effect unless the termination is in accordance with Section 8.01 and, to the extent required~~ stockholders under ~~the terms of this Agreement, the Company pays or causes to be paid to Parent the~~ applicable ~~Company Termination Fee in accordance with Section 6.06 prior to or concurrently with such termination so long as Parent has provided the Company with wire instructions for such payment~~Law. (de) ~~In addition to the obligations of the Company set forth in paragraphs (a) through (c) of this Section 5.02, the~~ The Company shall ~~(i)~~ promptly (and in any event within ~~24 hours of receipt thereof by an officer or director of the Company~~twenty-four (24) hours) advise Parent orally and in writing of (i) any Company Takeover ~~Proposal~~ Proposal, any request outside the ordinary course of business for material non-public information relating to Company or any ~~inquiry~~ of its Subsidiaries or ~~proposal that may reasonably be expected~~ for access to ~~lead to a~~ the business, properties, assets, books or records of Company ~~Takeover Proposal~~or any of its Subsidiaries by any third party (other than by any Governmental Entity or in connection with obtaining the Required Statutory Approvals), the material terms and conditions of any such Company Takeover Proposal or ~~inquiry or proposal~~ request (including any changes thereto) and the identity of the Person making any such Company Takeover Proposal or ~~inquiry or proposal~~request, and (ii) any Company Intervening Event or any facts and circumstances that would reasonably be expected to lead to a Company Intervening Event. The Company shall keep Parent reasonably informed in all material respects on a reasonably current basis of the material terms and status ~~and details~~ (including any change to the material terms thereof) of any Company Takeover ~~Proposal~~Proposal or request and, ~~and (iii) provide to~~ in the case of a Company Intervening Event, keep Parent ~~as soon as practicable after receipt or delivery thereof copies of~~ informed in all ~~correspondence and other written and electronic~~ material ~~exchanged between the Company or any~~ respects on a current basis of the facts and circumstances related to such Company ~~Subsidiaries and any Person that describes any of the material terms or conditions of any Company Takeover Proposal~~Intervening Event. (ef) Nothing contained in this Section 5.02 shall prohibit the Company from (i) ~~issuing a “stop-look-and-listen communication” pursuant to~~ complying with Rule ~~14d-9(f)~~ 14d-9 and Rule 14e-2 promulgated under the Exchange Act or taking and disclosing to its shareholders positions required by Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act, in each case after the commencement of a tender offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act), (ii) issuing a statement in connection with a Company Takeover Proposal that does not involve the commencement of a tender offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act), so long as the statement includes no more information than would be required for a “stop-look-and-listen communication” under Rule 14d-9(f) promulgated under the Exchange Act if such provision was applicable, or (iii) making any disclosure to the ~~shareholders~~ stockholders of the Company if, in the ~~good~~ good-faith judgment of the Company Board (after consultation with outside legal counsel) failure to so disclose would reasonably ~~be expected to~~ likely be inconsistent with its ~~fiduciary duties~~ obligations under applicable Law~~; provided, however, that in no event shall the Company or the Company Board or any committee thereof take, or agree or resolve to take, any action prohibited by Section 5.02(c)~~. (fg) For purposes of this Agreement:

Appears in 1 contract

Samples: Merger Agreement (Joy Global Inc)

No Solicitation by the Company; Company Board Recommendation. (a) The Company shall not, ~~and~~ shall cause its Affiliates not to, and shall use reasonable efforts to cause its and their respective officers, directors, ~~officers and employees and each of its and their respective investment bankers~~principals, partners, managers, members, attorneys, accountants, ~~attorneys and~~ agents, employees, consultants, financial advisors or other ~~advisors, agents or~~ authorized representatives (collectively, “Representatives”) not to, (i) directly or indirectly solicit, initiate or knowingly encourage, induce or facilitate any Company Takeover Proposal or any ~~inquiry, discussion~~ inquiry or proposal that ~~may~~ would reasonably be expected to lead to a Company Takeover Proposal, in each case, except for this Agreement and the transactions contemplated hereby, or (ii) directly or indirectly participate in any discussions or negotiations with any Person (except for the Company’s Affiliates and its and their respective Representatives or Parent and Parent’s Affiliates and its and their respective Representatives) regarding, or furnish to any ~~Person~~ such Person, any nonpublic information with respect to, or cooperate in any way with any such Person ~~(whether or not a Person making a Company Takeover Proposal)~~ with respect to, any Company Takeover Proposal or any inquiry or proposal that ~~may~~ would reasonably be expected to lead to a Company Takeover Proposal or (iii) waive, terminate, modify, amend, release or assign any provisions of any confidentiality or standstill agreement (or similar agreement) to which it is a party or fail to enforce, to the fullest extent permitted under applicable Law, the provisions of any such agreement, including by obtaining an injunction to prevent any breach of such agreements and to enforce specifically the terms and provisions thereof in any court having jurisdictionProposal. The Company shall, and shall cause its Affiliates and its and their respective Representatives to, immediately cease and cause to be terminated all existing ~~solicitation,~~ discussions or negotiations with any Person (except for the Company’s Affiliates and its and their respective Representatives or Parent and Parent’s Affiliates and its and their respective Representatives) conducted heretofore with respect to any ~~Company Takeover Proposal, or any inquiry or proposal that may reasonably be expected to lead to a~~ Company Takeover Proposal, request the prompt return or destruction of all confidential information previously furnished ~~in connection therewith~~ and immediately terminate all physical and electronic ~~dataroom~~ data room access previously granted to any such Person or its Representatives~~. (b)~~ . Notwithstanding anything to the ~~foregoing~~contrary herein, if at any time prior to obtaining the Company Shareholder Approval, the Company or any of its Representatives receives a bona fide oral or written Company Takeover Proposal, which Company Takeover Proposal did not result from any breach of this Section 5.02, (i) the Company and its Representatives may contact such Person making the Company Takeover Proposal or its Representatives to request that any bona fide Company Takeover Proposal made orally be made in writing and (ii) in response to the receipt of a bona fide written Company Takeover Proposal if made after the date of this Agreement that does not result from a breach (other than an immaterial breach) of this Section 5.03(a) by the Company and that the Company Board determines in good faith (after consultation with ~~its~~ outside legal counsel and a financial advisor) ~~that the failure to take the following actions would~~ constitutes or could reasonably be expected ~~to be inconsistent with its fiduciary duties under applicable Law, and that such Company Takeover Proposal constitutes or is reasonably likely~~ to lead to a Superior Company Proposal, the Company and its Representatives may (~~and may authorize and permit its Affiliates and its and their Representatives to), subject to compliance with Section 5.02(e), (A~~1) ~~enter into an Acceptable Confidentiality Agreement with the Person making the Company Takeover Proposal and~~ furnish information ~~pursuant to an Acceptable Confidentiality Agreement (including non-public information and data)~~ with respect to the Company and the Company Subsidiaries to the Person making such Company Takeover Proposal (and its Representatives) (provided that all such information has previously been provided to Parent or is provided to Parent prior to or substantially ~~concurrent~~ concurrently with the ~~time it is provided~~ provision of such information to such Person)) pursuant to a customary confidentiality agreement no less restrictive, in the aggregate, than the Confidentiality Agreement and (B2) participate in discussions regarding the terms of such Company Takeover ~~Proposal~~ Proposal, including terms of a Company Acquisition Agreement with respect thereto, and the negotiation of such terms ~~with, and only with,~~ with the Person making such Company Takeover Proposal (and such Person’s Representatives). ~~Without limiting~~ Notwithstanding anything to the ~~foregoing~~contrary herein, ~~it is agreed that~~ the Company may grant a waiver, amendment or release under any ~~violation of~~ confidentiality or standstill agreement to the ~~restrictions set forth in this Section 5.02 by any Representative of~~ extent necessary to allow a confidential Company Takeover Proposal to be made to the Company or the Company Board so long as the Company promptly notifies Parent thereof after granting any ~~of its Affiliates shall constitute a breach of this Section 5.02 by the Company~~such waiver, amendment or release. (cb) Except as set forth ~~below~~in Section 5.03(a), Section 5.03(c) and Section 5.03(e), neither the Company Board nor any committee thereof shall (i) ~~(A) withdraw or fail to make when required by this Agreement (~~withdraw, change, qualify, withhold or modify in any manner adverse to Parent), or propose ~~or agree~~ publicly to ~~withdraw or fail to make when required by this Agreement (~~withdraw, change, qualify, withhold or modify in any manner adverse to Parent), the Company Board Recommendation, (ii) adopt, approve or recommend, or propose publicly to adopt, approve or recommend, any Company Takeover Proposal, (iii) fail to include in the Proxy Statement the Company Board Recommendation or (Biv) ~~adopt~~take any formal action or make any recommendation or public statement in connection with a tender offer or exchange offer (except for a recommendation against such offer or a customary “stop, ~~recommend or declare advisable, or propose or agree to adopt, recommend or declare advisable, any Company Takeover Proposal~~ look and listen” communication of the type contemplated by Rule 14d-9(f) under the Exchange Act) (any action ~~described~~ in ~~this clause~~ the foregoing clauses (ii)–(iv) being referred to as a “Company Adverse Recommendation Change”). Except as set forth in Section 5.03(a), Section 5.03(c) and Section 5.03(e), neither the Company Board nor any committee thereof shall authorize, permit, approve or ~~(ii) adopt, recommend or declare advisable~~recommend, or propose publicly to authorize, permit, approve or ~~agree to adopt, recommend or declare advisable~~recommend, or allow the Company or any of its Affiliates to execute or enter into, any ~~confidentiality agreement (other than an Acceptable Confidentiality Agreement)~~ letter of intent, memorandum of understanding, agreement in principle, ~~merger agreement, acquisition agreement, option agreement, joint venture agreement, alliance agreement, partnership~~ agreement or ~~other similar agreement or arrangement (an “Acquisition Agreement”)~~ commitment constituting, or that ~~may~~ would reasonably be expected to lead to, a any Company Takeover Proposal. , or requiring, or that would reasonably be expected to cause, the Company to abandon or terminate this Agreement (a “Company Acquisition Agreement”). (c) Notwithstanding anything to the ~~foregoing~~contrary herein, at any time prior to obtaining the Company Shareholder Approval, the Company Board may ~~(I)~~ make a Company Adverse Recommendation Change if (i) a Company Intervening Event has occurred or (IIii) ~~cause~~ the Company ~~to enter into~~ has received a Superior Company Proposal that does not result from a breach (other than an ~~Acquisition Agreement constituting or that may reasonably be expected to lead to a~~ immaterial breach) of Section 5.03(a) by the Company ~~Takeover Proposal not obtained in violation of this Section 5.02 and terminate this Agreement pursuant to Section 8.01(c)(ii)~~and, in ~~either case~~ each case, if the Company Board determines in good faith (after consultation with outside ~~counsel and~~ legal counsel) that the failure to effect a ~~financial advisor of nationally recognized reputation), that (x) in the case of clause (I), where the~~ Company Adverse Recommendation Change ~~is made~~ as a result of the occurrence of such Company Intervening Event or in response to ~~an Intervening Event~~the receipt of such Superior Company Proposal, or as the ~~consequences thereof~~case may be, ~~and the failure to take such action~~ would reasonably ~~be expected to~~ likely be inconsistent with the ~~directors’~~ Company Board’s fiduciary duties under applicable Law and (y) in the case of (A) clause (I) where such Company Adverse Recommendation Change is made in response to a Company Takeover Proposal, or (B) clause (II), such Company Takeover Proposal constitutes a Superior Company ProposalLaw; provided, however, that the Company Board shall not ~~be entitled to~~ make a such Company Adverse Recommendation Change ~~or take any action set forth in clause (II)~~ unless (1) the Company Board has ~~given Parent at least five Business Days’~~ provided prior written notice to Parent (a “~~Company Notice of~~ Recommendation ~~Change~~Change Notice”) that it is prepared to effect a Company Adverse Recommendation Change in response to the occurrence of a Company Intervening Event or the receipt of a Superior Company Proposal, which notice shall, in the case of a Company Adverse Recommendation Change in response to the receipt of a Superior Company Proposal, at the Company’s option, either attach the most current draft of any Company Acquisition Agreement with respect to such Superior Company Proposal or include a summary of the material terms and conditions of such Superior Company Proposal (including the identity of the Person making such Superior Company Proposal), (2) if requested by Parent, during the three (3) Business Day period after delivery of the Recommendation Change Notice, the Company and its Representatives negotiate in good faith with Parent and its Representatives regarding any revisions to this Agreement and (3) at the end of such three (3) Business Day period and taking into account any changes to the terms of this Agreement committed to in writing by Parent (it being understood and agreed that if there has been any subsequent amendment to any material term of ~~any~~ such Superior Company ~~Proposal shall require a new Company Notice of Recommendation Change and a new notice period (which shall be two Business Days instead of five Business Days)) advising Parent that~~ Proposal, the Company Board ~~intends to take~~ shall provide a new Recommendation Change Notice and an additional three (3) Business Day period from the date of such ~~action (which~~ notice shall ~~specify the identity of the party making such Superior Company Proposal and the material terms thereof and, in the case of an Intervening Event, specifying the details thereof~~apply), ~~(2)~~ the Company ~~has negotiated, and has caused its Representatives to negotiate,~~ Board determines in good faith (after consultation with ~~Parent during~~ outside legal counsel) that the failure to make such notice period, to the extent Parent wishes to negotiate, to enable Parent to propose in writing a binding offer to effect revisions to the terms of this Agreement such that it would cause such Superior Company Proposal to no longer constitute a Superior Company Proposal or for such Intervening Event to no longer warrant a Company Adverse Recommendation Change, and (3) following the end of such notice period, the Company Board or any committee thereof shall have considered in good faith such binding offer or Intervening Event, and shall have determined that the Superior Company Proposal Change would ~~continue to constitute a Superior Company Proposal if the revisions proposed in such binding offer were to~~ reasonably likely be given effect or that such Intervening Event continues to warrant a Company Adverse Recommendation Change; and provided, further that any purported termination of this Agreement pursuant to this sentence shall be void and of no force and effect unless the termination is in accordance inconsistent with ~~Section 8.01 and, to the extent required~~ its fiduciary duties under ~~the terms of this Agreement, the Company pays or causes to be paid to Parent the~~ applicable ~~Company Termination Fee in accordance with Section 6.06 prior to or concurrently with such termination so long as Parent has provided the Company with wire instructions for such payment~~Law. (d) ~~In addition to the obligations of the Company set forth in paragraphs (a) through (c) of this Section 5.02, the~~ The Company shall ~~(i)~~ promptly (and in any event ~~within 24~~ no later than the later of (i) twenty-four (24) hours ~~of receipt thereof by an officer~~ or ~~director of~~ (ii) 5 p.m. New York City time on the ~~Company~~next Business Day) advise Parent orally and in writing of any Company Takeover Proposal ~~or any inquiry or proposal that may reasonably be expected to lead to a Company Takeover Proposal,~~ and the material terms and conditions of any such Company Takeover Proposal ~~or inquiry or proposal~~ (including ~~any changes thereto) and~~ the identity of the Person making ~~any~~ such Company Takeover ~~Proposal or inquiry or proposal, (ii)~~ Proposal). The Company shall keep Parent reasonably informed in all material respects on a reasonably current basis of the material terms and status ~~and details~~ (including any change to the terms thereof) of any Company Takeover Proposal, and (iii) provide to Parent as soon as practicable after receipt or delivery thereof copies of all correspondence and other written and electronic material exchanged between the Company or any of the Company Subsidiaries and any Person that describes any of the material terms or conditions of any Company Takeover Proposal. (e) Nothing contained in this Section ~~5.02~~ 5.03 shall prohibit the Company from (i) ~~issuing a “stop-look-and-listen communication” pursuant to~~ complying with Rule ~~14d-9(f)~~ 14d-9 and Rule 14e-2 promulgated under the Exchange Act or taking and disclosing to its shareholders positions required by Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act, in each case after the commencement of a tender offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act), (ii) issuing a statement in connection with a Company Takeover Proposal that does not involve the commencement of a tender offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act), so long as the statement includes no more information than would be required for a “stop-look-and-listen communication” under Rule 14d-9(f) promulgated under the Exchange Act if such provision was applicable, or (iii) making any disclosure to the shareholders of the Company if, in the ~~good~~ good-faith judgment of the Company Board (after consultation with outside legal counsel) failure to so disclose would reasonably ~~be expected to~~ likely be inconsistent with its ~~fiduciary duties~~ obligations under applicable Law~~; provided, however, that in no event shall the Company or the Company Board or any committee thereof take, or agree or resolve to take, any action prohibited by Section 5.02(c)~~. (f) For purposes of this Agreement:

Appears in 1 contract

Samples: Merger Agreement (Empire District Electric Co)

No Solicitation by the Company; Company Board Recommendation. (a) The Company shall not, ~~and~~ shall cause its Affiliates not to, and shall use reasonable efforts to cause its and their respective officers, directors, ~~officers and employees and each of its and their respective investment bankers~~principals, partners, managers, members, attorneys, accountants, ~~attorneys and~~ agents, employees, consultants, financial advisors or other ~~advisors, agents or~~ authorized representatives (collectively, “Representatives”) not to, (i) directly or indirectly solicit, initiate or knowingly encourage, induce or facilitate any Company Takeover Proposal or any ~~inquiry, discussion~~ inquiry or proposal that ~~may~~ would reasonably be expected to lead to a Company Takeover Proposal, in each case, except for this Agreement and the transactions contemplated hereby, or (ii) directly or indirectly participate in any discussions or negotiations with any Person (except for Parent and Parent’s Affiliates and its and their respective Representatives) regarding, or furnish to any ~~Person~~ such Person, any nonpublic information with respect to, or cooperate in any way with any such Person ~~(whether or not a Person making a Company Takeover Proposal)~~ with respect to, any Company Takeover Proposal or any inquiry or proposal that ~~may~~ would reasonably be expected to lead to a Company Takeover Proposal or (iii) waive, terminate, modify, amend, release or assign any provisions of any confidentiality or standstill agreement (or similar agreement) to which it is a party or fail to enforce, to the fullest extent permitted under applicable Law, the provisions of any such agreement, including by obtaining an injunction to prevent any breach of such agreements and to enforce specifically the terms and provisions thereof in any court having jurisdictionProposal. The Company shall, and shall cause its Affiliates and its and their respective Representatives to, immediately cease and cause to be terminated all existing ~~solicitation,~~ discussions or negotiations with any Person ~~conducted heretofore~~ (except for Parent and Parent’s Affiliates and its and their respective Representatives) with respect to any ~~Company Takeover Proposal, or any inquiry or proposal that may reasonably be expected to lead to a~~ Company Takeover Proposal, request the prompt return or destruction of all confidential information previously furnished ~~in connection therewith~~ and immediately terminate all physical and electronic ~~dataroom~~ data room access previously granted to any such Person or its Representatives~~. (b)~~ . Notwithstanding anything to the ~~foregoing~~contrary herein, if at any time prior to obtaining the Company Shareholder Approval, the Company or any of its Representatives receives a bona fide oral or written Company Takeover Proposal, which Company Takeover Proposal did not result from any breach of this Section 5.02, (i) the Company and its Representatives may contact such Person making the Company Takeover Proposal or its Representatives to request that any bona fide Company Takeover Proposal made orally be made in writing and (ii) in response to the receipt of a bona fide written Company Takeover Proposal if made after the date of this Agreement that does not result from a breach (other than an immaterial breach) of this Section 5.03(a) by the Company and that the Company Board determines in good faith (after consultation with ~~its~~ outside legal counsel and a financial advisor) ~~that the failure to take the following actions would~~ constitutes or could reasonably be expected ~~to be inconsistent with its fiduciary duties under applicable Law, and that such Company Takeover Proposal constitutes or is reasonably likely~~ to lead to a Superior Company Proposal, the Company and its Representatives may (~~and may authorize and permit its Affiliates and its and their Representatives to), subject to compliance with Section 5.02(e), (A~~1) ~~enter into an Acceptable Confidentiality Agreement with the Person making the Company Takeover Proposal and~~ furnish information ~~pursuant to an Acceptable Confidentiality Agreement (including non-public information and data)~~ with respect to the Company and the Company Subsidiaries to the Person making such Company Takeover Proposal (and its Representatives) (~~provided~~ provided, that (i) all such information has previously been provided to Parent or is provided to Parent prior to or ~~substantially concurrent~~ concurrently with the ~~time it is provided~~ provision of such information to such Person), ) pursuant to a customary confidentiality agreement that does not restrict the Company’s ability to comply with its obligations under this Section 5.03 and (B2) participate in discussions regarding the terms of such Company Takeover ~~Proposal~~ Proposal, including terms of a Company Acquisition Agreement with respect thereto, and the negotiation of such terms ~~with, and only with,~~ with the Person making such Company Takeover Proposal (and such Person’s Representatives). Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section ~~5.02~~ 5.03(a) by any Representative of the Company or any of its ~~Affiliates~~ Affiliates, in each case, at the Company’s direction, shall constitute a breach of this Section ~~5.02~~ 5.03(a) by the Company. Notwithstanding anything to the contrary herein, to the extent the Company Board determines in good faith (after consultation with outside legal counsel) that it is required in order for the Company Board to comply with its fiduciary obligations, the Company may grant a waiver, amendment or release under any confidentiality or standstill agreement to the extent necessary to allow a confidential Company Takeover Proposal to be made to the Company or the Company Board so long as the Company Board promptly (and in any event, within one Business Day) notifies Parent thereof after granting any such waiver, amendment or release. (cb) Except as set forth ~~below~~in Section 5.03(a), Section 5.03(c) and Section 5.03(e), and except for the public disclosure of a Company Recommendation Change Notice, neither the Company Board nor any committee thereof shall (i) ~~(A) withdraw or fail to make when required by this Agreement (or~~ withdraw, change, qualify, withhold, modify in any manner adverse to Parent), or propose ~~or agree~~ publicly to ~~withdraw or fail to make when required by this Agreement (or~~ withdraw, change, qualify, withhold, modify in any manner adverse to Parent), the Company Board Recommendation, (ii) adopt, approve or recommend, or propose publicly to adopt, approve or recommend, any Company Takeover Proposal, (iii) fail to include in the Proxy Statement the Company Board Recommendation or (Biv) ~~adopt~~take any formal action or make any recommendation or public statement in connection with a tender offer or exchange offer (except for a recommendation against such offer or a customary “stop, ~~recommend or declare advisable, or propose or agree to adopt, recommend or declare advisable, any Company Takeover Proposal~~ look and listen” communication of the type contemplated by Rule 14d- 9(f) under the Exchange Act) (any action ~~described~~ in ~~this clause~~ the foregoing clauses (ii)–(iv) being referred to as a “Company Adverse Recommendation Change”). Except as set forth in Section 5.03(a), Section 5.03(c) and Section 5.03(e), neither the Company Board nor any committee thereof shall authorize, permit, approve or ~~(ii) adopt, recommend or declare advisable~~recommend, or propose publicly to authorize, permit, approve or ~~agree to adopt, recommend or declare advisable~~recommend, or allow the Company or any of its Affiliates to execute or enter into, any ~~confidentiality agreement (other than an Acceptable Confidentiality Agreement)~~ letter of intent, memorandum of understanding, agreement in principle, ~~merger agreement, acquisition agreement, option agreement, joint venture agreement, alliance agreement, partnership~~ agreement or ~~other similar agreement or arrangement (an “Acquisition Agreement”)~~ commitment constituting, or that ~~may~~ would reasonably be expected to lead to, a any Company Takeover Proposal. , or requiring, or that would reasonably be expected to cause, the Company to abandon or terminate this Agreement (a “Company Acquisition Agreement”). (c) Notwithstanding anything to the ~~foregoing~~contrary herein, at any time prior to obtaining the Company Shareholder Approval, the Company Board may ~~(I)~~ make a Company Adverse Recommendation Change if (i) a Company Intervening Event has occurred or (IIii) ~~cause~~ the Company ~~to enter into~~ has received a Superior Company Proposal that does not result from a breach (other than an ~~Acquisition Agreement constituting or that may reasonably be expected to lead to a~~ immaterial breach) of Section 5.03 by the Company ~~Takeover Proposal not obtained in violation of this Section 5.02 and terminate this Agreement pursuant to Section 8.01(c)(ii)~~and, in ~~either case~~ each case, if the Company Board determines in good faith (after consultation with outside legal counsel and a financial ~~advisor of nationally recognized reputation),~~ advisor) that ~~(x) in~~ the ~~case of clause (I), where the~~ failure to effect a Company Adverse Recommendation Change ~~is made~~ as a result of the occurrence of such Company Intervening Event or in response to ~~an Intervening Event~~the receipt of such Superior Company Proposal, or as the ~~consequences thereof~~case may be, ~~and the failure to take such action~~ would reasonably ~~be expected to~~ likely be inconsistent with the ~~directors’~~ Company Board’s fiduciary duties under applicable Law and (y) in the case of (A) clause (I) where such Company Adverse Recommendation Change is made in response to a Company Takeover Proposal, or (B) clause (II), such Company Takeover Proposal constitutes a Superior Company ProposalLaw; provided, however, that the Company ~~shall~~ Board may not ~~be entitled to~~ make a such Company Adverse Recommendation Change ~~or take any action set forth in clause (II)~~ unless (1) the Company Board has ~~given Parent at least five Business Days’~~ provided prior written notice to Parent (a “Company ~~Notice of~~ Recommendation ~~Change~~Change Notice”) (that it ~~being understood and agreed that any amendment~~ is prepared to ~~any material term of any Superior~~ effect a Company ~~Proposal shall require a new Company Notice of~~ Adverse Recommendation Change ~~and a new notice period~~ at least four (~~which shall be two~~ 4) Business Days ~~instead of five Business Days)) advising Parent that the Company Board intends~~ prior to ~~take~~ taking such ~~action (~~action, which notice shall specify the ~~identity of the party making~~ basis for such ~~Superior~~ Company ~~Proposal and the material terms thereof~~ Adverse Recommendation Change and, in the case of ~~an Intervening Event~~a Superior Proposal, ~~specifying~~ attaching the ~~details thereof)~~most current draft of any Company Acquisition Agreement with respect to such Superior Company Proposal or, if no draft exists, a summary of the material terms and conditions of such Superior Company Proposal (~~2) the~~ it being understood that such Company Recommendation Change Notice shall not in itself be deemed a Company Adverse Recommendation Change and that if Parent has ~~negotiated, and has caused its Representatives to negotiate, in good faith with Parent during such notice period, to the extent Parent wishes to negotiate, to enable Parent to propose~~ committed in writing ~~a binding offer~~ to ~~effect revisions~~ any changes to the terms of this Agreement ~~such that it would cause such Superior Company Proposal~~ and there has been any subsequent material revision or amendment to ~~no longer constitute~~ the terms of a Superior Company ~~Proposal or for~~ Proposal, a new notice to which the provisions of clauses (2), (3) and (4) of this Section 5.03(c) shall apply mutatis mutandis except that, in the case of such ~~Intervening Event~~ a new notice, all references to ~~no longer warrant~~ four (4) Business Days in this Section 5.03(c) shall be deemed to be two (2) Business Days), (2) during the four (4) Business Day period after delivery of the Company Recommendation Change Notice, the Company and its Representatives negotiate in good faith with Parent and its Representatives regarding any revisions to this Agreement that Parent proposes to make and (3) at the end of such four (4) Business Day period and taking into account any changes to the terms of this Agreement committed to in writing by Parent, the Company Board determines in good faith (after consultation with outside legal counsel and a financial advisor) that the failure to make such a Company Adverse Recommendation ~~Change~~Change would be inconsistent with its fiduciary duties under applicable Law, and ~~(3) following~~ that, in the ~~end~~ case of such notice period, the Company Board or any committee thereof shall have considered in good faith such binding offer or Intervening Event, and shall have determined that the Superior Company Proposal would continue to constitute a Superior Company Proposal if the revisions proposed in such binding offer were to be given effect or that such Intervening Event continues to warrant a Company Adverse Recommendation ~~Change; and provided~~Change with respect to a Company Takeover Proposal, further that any purported termination of this Agreement pursuant to this sentence shall be void and of no force and effect unless the termination is in accordance with Section 8.01 and, to the extent required under the terms of this Agreement, the such Company ~~pays or causes to be paid to Parent the applicable~~ Takeover Proposal still constitutes a Superior Company ~~Termination Fee in accordance with Section 6.06 prior to or concurrently with such termination so long as Parent has provided the Company with wire instructions for such payment~~Proposal. (d) ~~In addition to the obligations of the Company set forth in paragraphs (a) through (c) of this Section 5.02, the~~ The Company shall ~~(i)~~ promptly (and in any event ~~within 24~~ no later than the later of (i) twenty-four (24) hours ~~of receipt thereof by an officer~~ or ~~director of~~ (ii) 5:00 p.m. New York City time on the ~~Company~~next Business Day) advise Parent orally and in writing of any ~~Company Takeover Proposal or any inquiry or proposal that may reasonably be expected to lead to a~~ Company Takeover Proposal, the material terms and conditions of any such Company Takeover Proposal ~~or inquiry or proposal (including any changes thereto)~~ and the identity of the Person making any such Company Takeover ~~Proposal or inquiry or proposal, (ii)~~ Proposal. The Company shall keep Parent reasonably informed in all material respects on a reasonably current basis (and in any event no later than the later of (i) twenty-four (24) hours or (ii) 5:00 p.m. New York City time on the next Business Day) of the material terms and status ~~and details~~ (including any change to the terms thereof) of any Company Takeover Proposal, and (iii) provide to Parent as soon as practicable after receipt or delivery thereof copies of all correspondence and other written and electronic material exchanged between the Company or any of the Company Subsidiaries and any Person that describes any of the material terms or conditions of any Company Takeover Proposal. (e) Nothing contained in this Section ~~5.02~~ 5.03 shall prohibit the Company from (i) ~~issuing a “stop-look-and-listen communication” pursuant to~~ complying with Rule ~~14d-9(f)~~ 14d-9 and Rule 14e-2 promulgated under the Exchange Act or taking and disclosing to its shareholders positions required by Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act, in each case after the commencement of a tender offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act), (ii) issuing a statement in connection with a Company Takeover Proposal that does not involve the commencement of a tender offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act), so long as the statement includes no more information than would be required for a “stop-look-and-listen communication” under Rule 14d-9(f) promulgated under the Exchange Act if such provision was applicable, or (iii) making any disclosure to the shareholders of the Company if, in the ~~good~~ good-faith judgment of the Company Board (after consultation with outside legal counsel) failure to so disclose would ~~reasonably be expected to~~ be inconsistent with its ~~fiduciary duties~~ obligations under applicable Law~~; provided, however, that in no event shall the Company or the Company Board or any committee thereof take, or agree or resolve to take, any action prohibited by Section 5.02(c)~~. (f) For purposes of this Agreement:

Appears in 1 contract

Samples: Merger Agreement

No Solicitation by the Company; Company Board Recommendation. (a) The Company shall not, ~~and~~ shall cause its Affiliates and shall direct its ~~and their~~ Affiliates’ respective ~~directors, officers and employees and each of its and their respective investment bankers, accountants, attorneys and other advisors, agents or representatives (collectively, “Representatives”)~~ Representatives not to, (i) directly or indirectly solicit, initiate or knowingly encourage, ~~induce~~ or facilitate any Company Takeover Proposal or any ~~inquiry, discussion~~ inquiry or proposal that ~~may~~ would reasonably be expected to lead to a Company Takeover Proposal, in each case, except for this Agreement and the transactions contemplated by this Agreement, or (ii) ~~directly~~ enter into, engage in, continue or ~~indirectly~~ otherwise participate in any discussions or negotiations with any Person (except for the Company’s Affiliates and its and their respective Representatives or Parent and Parent’s Affiliates and its and their respective Representatives) regarding, or furnish to any ~~Person~~ such Person, any nonpublic information with respect ~~to, or cooperate in any way with any Person (whether or not a Person making a Company Takeover Proposal) with respect to,~~ to any Company Takeover Proposal or any inquiry or proposal that ~~may~~ would reasonably be expected to lead to a Company Takeover ~~Proposal~~ Proposal; provided, however, that (1) ministerial acts, such as answering unsolicited phone calls, shall not be deemed to “facilitate” for purposes of, or otherwise to constitute a breach of, this Section 6.02 and (~~iii~~2) ~~waive~~the Company, ~~terminate, modify, amend, release~~ its Affiliates and their respective Representatives shall be permitted to inform any such Person of the existence of this Section 6.02 or ~~assign~~ contact any ~~provisions of any confidentiality~~ such Person to ascertain facts or ~~standstill agreement (or similar agreement) to which it is a party or fail to enforce, to the fullest extent permitted under applicable Law, the provisions~~ clarify terms and conditions of any such ~~agreement, including by obtaining an injunction to prevent~~ Company Takeover Proposal or any ~~breach of~~ such ~~agreements and to enforce specifically the terms and provisions thereof in any court having jurisdiction~~inquiry or proposal. The Company shall, and shall cause its Affiliates and shall direct its and ~~their~~ its Affiliates’ respective Representatives to, immediately cease ~~and cause to be terminated~~ all existing ~~solicitation~~discussions, ~~discussions~~ communications or negotiations with any Person (except for the Company’s Affiliates and its and their respective Representatives or Parent and Parent’s Affiliates and its and their respective Representatives) conducted ~~heretofore~~ prior to the date of this Agreement with respect to any Company Takeover Proposal, ~~or any inquiry or proposal that may reasonably be expected to lead to a Company Takeover Proposal,~~ promptly request the prompt return or destruction of all confidential information previously furnished ~~in connection therewith~~ and immediately terminate all physical and electronic ~~dataroom~~ data room access previously granted to any such ~~Person~~ Person, its Affiliates or its Representatives~~. (b)~~ . Notwithstanding anything to the ~~foregoing~~contrary in this Agreement, if at any time prior to ~~obtaining~~ the time that the Company ~~Shareholder Approval~~Stockholder Approval is obtained, in response to the ~~Company or any~~ receipt of ~~its Representatives receives~~ a ~~bona fide oral or~~ written Company Takeover Proposal, which Company Takeover Proposal did not result from any breach of this Section 5.02, (i) the Company and its Representatives may contact such Person making the Company Takeover Proposal or its Representatives to request that any bona fide Company Takeover Proposal made ~~orally be made in writing~~ after the date of this Agreement which has not resulted from a violation of this Section 6.02 and ~~(ii) in response to a bona fide written Company Takeover Proposal if~~ that the Company Board determines in good faith (after consultation with ~~its~~ the Company’s outside legal counsel and a financial advisor) ~~that the failure to take the following actions would~~ constitutes or could reasonably be expected to ~~be inconsistent with its fiduciary duties under applicable Law, and that such Company Takeover Proposal constitutes or is reasonably likely to lead to~~ constitute a Superior Company Proposal, the Company ~~may (and may authorize and permit its Affiliates~~ and its ~~and their~~ Representatives ~~to)~~may, subject to compliance with this Section ~~5.02(e)~~6.02, (A) ~~enter into an Acceptable Confidentiality Agreement with the Person making the Company Takeover Proposal and~~ furnish information ~~pursuant to an Acceptable Confidentiality Agreement (including non-public information and data)~~ with respect to the Company ~~and the Company Subsidiaries~~ Entities to the Person making such Company Takeover Proposal (and ~~its~~ such Person’s Representatives) (pursuant to a customary confidentiality agreement with terms no less restrictive, in the aggregate, than those contained in the Confidentiality Agreement; provided that all such information has previously been provided to Parent or its Representatives or is provided to Parent or its Representatives prior to or ~~substantially concurrent with~~ promptly after the ~~time it is provided~~ provision of such information to such Person), and (B) participate in discussions regarding the terms of such Company Takeover ~~Proposal~~ Proposal, including terms of a Company Acquisition Agreement with respect thereto, and the negotiation of such terms ~~with,~~ and ~~only with,~~ such Company Acquisition Agreement with the Person making such Company Takeover Proposal (and such Person’s Representatives). ~~Without limiting~~ In addition to the ~~foregoing~~requirements set forth above, ~~it is agreed that~~ the Company Board shall not take any ~~violation~~ of the ~~restrictions set forth~~ actions referred to in ~~this Section 5.02 by any Representative~~ clauses (A) and (B) above unless the Company shall have first delivered to Parent written notice advising Parent that the Company intends to take such action, and the Company shall continue to advise Parent, on a reasonably current basis, after taking such action of the status and material terms of any discussions and negotiations with the applicable third party. The Company shall not, and shall cause each of its Subsidiaries not to, terminate, waive, amend or modify any provision of any existing standstill or confidentiality agreement to which it or any of its ~~Affiliates~~ Subsidiaries is a party, and the Company shall, and shall ~~constitute~~ cause its Subsidiaries to, enforce the provisions of any such agreement, in each case, with respect to the submission of any Company Takeover Proposal; provided, however, that the Company may grant a ~~breach of this Section 5.02 by~~ waiver of, and shall not be obligated to enforce, any such provision (I) to the ~~Company~~extent necessary to allow a Company Takeover Proposal to be made to the Company or the Company Board (or any committee thereof) and (II) if the Company Board has determined in good faith, after consultation with outside legal counsel, that the failure to grant such waiver would be inconsistent with its fiduciary duties under applicable Law. (cb) Except as set forth ~~below~~in Section 6.02(c), ~~neither~~ Section 6.02(d) and Section 6.02(f), and except for the public disclosure of a Recommendation Change Notice, the Company Board ~~nor any committee thereof~~ shall not (i) ~~(A) withdraw or fail to make when required by this Agreement (~~withdraw, change, qualify, withhold or modify in any manner adverse to Parent), or propose ~~or agree~~ publicly to ~~withdraw or fail to make when required by this Agreement (~~withdraw, change, qualify, withhold or modify in any manner adverse to Parent), the Company Board Recommendation, (ii) adopt, approve or recommend, or propose publicly to adopt, approve or recommend, any Company Takeover Proposal, (iii) fail to include in the Proxy Statement the Company Board Recommendation or (Biv) ~~adopt~~take any formal action or make any recommendation or public statement in connection with a tender offer or exchange offer (except for a recommendation against any such offer or a customary “stop, ~~recommend or declare advisable~~look and listen” communication of the type contemplated by Rule 14d-9(f) under the Exchange Act), or ~~propose~~ (v) formally resolve to effect or ~~agree~~ publicly announce an intention to ~~adopt, recommend or declare advisable,~~ effect any ~~Company Takeover Proposal~~ of the foregoing (any action ~~described~~ in ~~this clause~~ the foregoing clauses (ii)–(iv) being referred to as a “Company Adverse Recommendation Change”). Except as set forth in Section 6.02(a), Section 6.02(c) and Section 6.02(f), including any confidentiality agreement entered into in accordance with Section 6.02(a), the Company Board shall not authorize, permit, approve or ~~(ii) adopt, recommend or declare advisable~~recommend, or propose publicly to authorize, permit, approve or ~~agree to adopt, recommend or declare advisable~~recommend, or allow the Company or any of its Affiliates to execute or enter into, any ~~confidentiality agreement (other than an Acceptable Confidentiality Agreement)~~ letter of intent, memorandum of understanding, agreement in principle, ~~merger agreement, acquisition agreement, option agreement, joint venture agreement, alliance agreement, partnership~~ agreement or ~~other similar agreement or arrangement (an “Acquisition Agreement”)~~ commitment constituting, or that ~~may~~ would reasonably be expected to lead to, a any Company Takeover Proposal. , or requiring, or that would reasonably be expected to cause, the Company to abandon or terminate this Agreement (a “Company Acquisition Agreement”). (c) Notwithstanding anything to the ~~foregoing~~contrary in this Agreement, at any time prior to ~~obtaining~~ the time that the Company ~~Shareholder Approval~~Stockholder Approval is obtained, in response to the Company’s receipt of a Superior Company Proposal, the Company Board may ~~(I)~~ make a Company Adverse Recommendation Change or ~~(II) cause the Company to enter into an Acquisition Agreement constituting or that may reasonably be expected to lead to a Company Takeover Proposal not obtained in violation of this Section 5.02 and~~ terminate this Agreement pursuant to Section ~~8.01(c)(ii~~8.01(c)(i), in ~~either case~~ each case, if the Company Board determines in good faith (after consultation with outside legal counsel and a financial ~~advisor of nationally recognized reputation),~~ advisor) that ~~(x) in~~ the ~~case of clause (I), where the~~ failure to make a Company Adverse Recommendation Change ~~is made in response~~ or to ~~an Intervening Event~~terminate this Agreement pursuant to Section 8.01(c)(i), ~~or the consequences thereof~~as applicable, ~~and the failure to take such action~~ would ~~reasonably be expected to~~ be inconsistent with the ~~directors’~~ Company Board’s fiduciary duties under applicable Law and (y) in the case of (A) clause (I) where such Company Adverse Recommendation Change is made in response to a Company Takeover Proposal, or (B) clause (II), such Company Takeover Proposal constitutes a Superior Company ProposalLaw; provided, however, that the Company ~~shall~~ Board may not ~~be entitled~~ make such a Company Adverse Recommendation Change or so terminate this Agreement pursuant to Section 8.01(c)(i) unless (1) the Company Board has delivered to Parent prior written notice that the Company Board intends to make a Company Adverse Recommendation Change or ~~take any action set forth in clause (II~~to terminate this Agreement pursuant to Section 8.01(c)(i) ~~unless (1) the Company has given Parent at least five Business Days’ prior written notice~~ (a “~~Company~~ Recommendation Change Notice”), which Recommendation Change Notice ~~of Recommendation Change”~~shall, at the Company’s option, (A) ~~(it being understood and agreed that any amendment to any material term~~ attach the most current draft of any ~~Superior~~ proposed Company Proposal shall require a new Company Notice of Recommendation Change and a new notice period (which shall be two Business Days instead of five Business Days)) advising Parent that the Company Board intends Acquisition Agreement with respect to ~~take such action (which notice shall specify the identity of the party making~~ such Superior Company Proposal ~~and the material terms thereof and, in the case~~ or (B) include a summary of an Intervening Event, specifying the details thereof), (2) the Company has negotiated, and has caused its Representatives to negotiate, in good faith with Parent during such notice period, to the extent Parent wishes to negotiate, to enable Parent to propose in writing a binding offer to effect revisions to the terms of this Agreement such that it would cause such Superior Company Proposal to no longer constitute a Superior Company Proposal or for such Intervening Event to no longer warrant a Company Adverse Recommendation Change, and (3) following the end of such notice period, the Company Board or any committee thereof shall have considered in good faith such binding offer or Intervening Event, and shall have determined that the Superior Company Proposal would continue to constitute a Superior Company Proposal if the revisions proposed in such binding offer were to be given effect or that such Intervening Event continues to warrant a Company Adverse Recommendation Change; and provided, further that any purported termination of this Agreement pursuant to this sentence shall be void and of no force and effect unless the termination is in accordance with Section 8.01 and, to the extent required under the terms of this Agreement, the Company pays or causes to be paid to Parent the applicable Company Termination Fee in accordance with Section 6.06 prior to or concurrently with such termination so long as Parent has provided the Company with wire instructions for such payment. (d) In addition to the obligations of the Company set forth in paragraphs (a) through (c) of this Section 5.02, the Company shall (i) promptly (and in any event within 24 hours of receipt thereof by an officer or director of the Company) advise Parent orally and in writing of any Company Takeover Proposal or any inquiry or proposal that may reasonably be expected to lead to a Company Takeover Proposal, the material terms and conditions of ~~any~~ such Superior Company ~~Takeover Proposal or inquiry or proposal (~~Proposal, including ~~any changes thereto)~~ the amount and type of consideration offered, the identity of the Person or group of Persons making ~~any such~~ the Superior Company ~~Takeover Proposal or inquiry or proposal~~Proposal, the proposed transaction structure and proposed financing, if any, (ii2) ~~keep Parent informed in all material respects on a reasonably current basis~~ if requested by Parent, during the four (4) Business Day period after delivery of the ~~status~~ Recommendation Change Notice, the Company and ~~details (including~~ its Representatives shall negotiate in good faith with Parent and its Representatives regarding any ~~change~~ revisions to ~~the terms thereof) of any Company Takeover Proposal~~this Agreement proposed by Parent, and (~~iii~~3) ~~provide to Parent as soon as practicable after receipt or delivery thereof copies~~ no earlier than the end of all correspondence and other written and electronic material exchanged between the Company or any of the Company Subsidiaries and any Person that describes any of the material terms or conditions of any Company Takeover Proposal. such four (e4) Nothing contained in this Section 5.02 shall prohibit the Company from (i) issuing a “stop-look-and-listen communication” pursuant to Rule 14d-9(f) promulgated under the Exchange Act or taking and disclosing to its shareholders positions required by Rule 14d-9 or Rule 14e-2 promulgated under the Exchange ActBusiness Day period, in each case after the commencement of a tender offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act), (ii) issuing a statement in connection with a Company Takeover Proposal that does not involve the commencement of a tender offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act), so long as the statement includes no more information than would be required for a “stop-look-and-listen communication” under Rule 14d-9(f) promulgated under the Exchange Act if such provision was applicable, or (iii) making any disclosure to the shareholders of the Company if, in the good faith judgment of the Company Board (after consultation with outside ~~counsel~~legal counsel and a financial advisor), shall have determined in good faith, after considering the terms of any proposed revision to this Agreement proposed by Parent during such four (4) Business Day period, that such Company Takeover Proposal continues to constitute a Superior Company Proposal and that the failure to ~~so disclose~~ make a Company Adverse Recommendation Change or to terminate this Agreement pursuant to Section 8.01(c)(i) in connection therewith, would ~~reasonably be expected to~~ be inconsistent with its fiduciary duties under applicable Law; provided, however, that, if any revision to the financial terms or any other material revisions are made to any such Superior Company Proposal, the Company Board shall deliver a new notice to Parent as provided above, during which notice period the Company shall be required to comply with the requirements of this Section 6.02(c) anew, except that such new notice period shall be for two (2) Business Days. (d) Notwithstanding anything to the contrary in this Agreement, at any time prior to the time that the Company Stockholder Approval is obtained, in response to a Company Intervening Event, the Company Board may make a Company Adverse Recommendation Change if the Company Board determines in good faith (after consultation with outside legal counsel and a financial advisor) that the failure to make a Company Adverse Recommendation Change would be inconsistent with the Company Board’s fiduciary duties under applicable Law; provided, however, that the Company Board may not make such Company Adverse Recommendation Change unless (1) the Company Board has delivered to Parent a Recommendation Change Notice describing in reasonable detail such Company Intervening Event and the reasons for such Company Adverse Recommendation Change, (2) if requested by Parent, during the four (4) Business Day period after delivery of the Recommendation Change Notice, the Company and its Representatives negotiate in good faith with Parent and its Representatives regarding any revisions to this Agreement proposed by Parent, and (3) no earlier than the end of such four (4) Business Day period, the Company Board (after consultation with outside legal counsel and a financial advisor) shall have determined in good faith, after considering the terms of any revision to this Agreement proposed by Parent during such four (4) Business Day period, that the failure to make a Company Adverse Recommendation Change would be inconsistent with its fiduciary duties under applicable Law. (e) Reasonably promptly (and, in any event, within one Business Day (but in no event ~~shall~~ longer than forty-eight (48) hours)) following receipt by any executive officer of the Company or any executive officer of the Company being made aware of receipt by any of its Representatives of any Company Takeover Proposal or any inquiry, proposal or offer, including any request for non-public information, that constitutes or would reasonably be expected to lead to a Company Takeover Proposal, the Company shall notify Parent orally and in writing of any such Company Takeover Proposal, inquiry, proposal or offer, the material terms and conditions of any such Company Takeover Proposal, inquiry, proposal or offer (including drafts and final versions of definitive agreements, letters of intent, term sheets or commitment letters related thereto, including schedules and exhibits to such documents) and the identity of the Person making any such Company Takeover Proposal, inquiry, proposal or offer. The Company shall keep Parent reasonably informed on a reasonably current basis of the material terms and status (including any change to the material terms thereof) of any such Company Takeover Proposal inquiry, proposal or offer (and, in any event, within one Business Day (but in no event longer than forty-eight (48) hours)). The Company shall promptly (and, in any event, within twenty-four (24) hours) following a determination by the Company Board ~~or any committee thereof take~~that a Company Takeover Proposal is a Superior Company Proposal, ~~or agree or resolve to take, any action prohibited by Section 5.02(c)~~notify Parent of such determination. (f) Nothing in this Section 6.02 shall prohibit the Company from (i) complying with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act or (ii) making any disclosure to the Company Stockholders if, in the good-faith judgment of the Company Board (after consultation with outside legal counsel) failure to so disclose would be inconsistent with its obligations under applicable Law; provided that any Company Adverse Recommendation Change may only be made in accordance with Section 6.02(c) and Section 6.02(d). For the avoidance of doubt, a factually accurate public statement that describes the Company’s receipt of a Company Takeover Proposal and the operation of this Agreement with respect thereto shall not be deemed a Company Adverse Recommendation Change. (g) For purposes of this Agreement:

Appears in 1 contract

Samples: Merger Agreement (Schulman a Inc)

No Solicitation by the Company; Company Board Recommendation. (a) The Company shall not, and shall cause any Company Subsidiary or any of its ~~Affiliates and its and~~ or their respective ~~directors, officers and employees and each of its and their respective investment bankers, accountants, attorneys and other advisors, agents or representatives (collectively, “Representatives”)~~ Representatives not to, (i) directly or indirectly solicit, ~~initiate~~ initiate, propose or induce the making, submission or announcement of, or knowingly encourage, ~~induce~~ or facilitate any Company Takeover Proposal or any inquiry, ~~discussion~~ proposal or ~~proposal~~ offer that ~~may~~ would reasonably be expected to lead to a Company Takeover Proposal, in each case, except for this Agreement and the transactions contemplated by this Agreement, (ii) ~~directly~~ participate or ~~indirectly participate~~ engage in any discussions or negotiations with any ~~Person regarding~~third party regarding a Company Takeover Proposal, or furnish to any ~~Person~~ such third party, any nonpublic information relating to the Company Entities with respect ~~to, or cooperate in any way with any Person (whether or not a Person making a Company Takeover Proposal) with respect to,~~ to any Company Takeover Proposal or any ~~inquiry~~ inquiry, proposal or ~~proposal~~ offer that ~~may~~ would reasonably be expected to lead to a Company Takeover Proposal, or afford to any such third party access to the business, properties, assets, books, records or other nonpublic information, or to any personnel, of the Company Entities with the intent to induce the making, submission or announcement of a Company Takeover Proposal or (iii) ~~waive~~subject to Section 8.01(c)(i), ~~terminate~~enter into any Company Acquisition Agreement; provided, ~~modify~~however, ~~amend~~that (A) ministerial acts, ~~release~~ such as answering unsolicited phone calls, shall not be deemed to “facilitate” for purposes of, or ~~assign any provisions of any confidentiality or standstill agreement~~ otherwise to constitute a breach of, this Section 6.02(a) and (~~or similar agreement~~B) ~~to which it is a party or fail to enforce, to~~ the ~~fullest extent permitted under applicable Law~~Company, the ~~provisions~~ Company Subsidiaries and their respective Representatives shall be permitted to (1) inform any such third party of the terms of this Section 6.02 or (2) ascertain the facts or clarify the terms and conditions of any such ~~agreement~~Company Takeover Proposal or any such inquiry or proposal by contacting the third party making such inquiry, ~~including by obtaining an injunction to prevent any breach of~~ proposal or offer solely for such ~~agreements and to enforce specifically the terms and provisions thereof in any court having jurisdiction~~purpose. The Company shall, and shall cause ~~its Affiliates~~ the Company Subsidiaries and its and their respective Representatives to, immediately cease ~~and cause to be terminated~~ all existing ~~solicitation~~solicitations, discussions or negotiations with any ~~Person~~ third party conducted ~~heretofore~~ prior to the date of this Agreement with respect to any ~~Company Takeover Proposal, or any inquiry or proposal that may reasonably be expected to lead to a~~ Company Takeover Proposal, request the prompt return or destruction of all confidential information previously furnished ~~in connection therewith~~ and ~~immediately~~ promptly terminate all physical and electronic ~~dataroom~~ data room access previously granted to any such ~~Person~~ third party or its Representatives~~. (b)~~ . Notwithstanding anything to the ~~foregoing~~contrary in this Agreement, if at any time prior to ~~obtaining~~ the ~~Company Shareholder Approval~~Offer Closing, the Company or any of its Representatives receives a bona fide oral or written Company Takeover Proposal, which Company Takeover Proposal did not result from any breach of this Section 5.02, (i) the Company and its Representatives may contact such Person making the Company Takeover Proposal or its Representatives to request that any bona fide Company Takeover Proposal made orally be made in writing and (ii) in response to the receipt of a bona fide written Company Takeover Proposal if made after the date of this Agreement that did not result from a breach of this Section 6.02 and that the Company Board determines in good faith (after consultation with ~~its~~ the Company’s outside legal counsel and financial advisor) ~~that the failure to take the following actions would~~ constitutes or could reasonably be expected ~~to be inconsistent with its fiduciary duties under applicable Law, and that such Company Takeover Proposal constitutes or is reasonably likely~~ to lead to a Superior Company Proposal, the Company ~~may (and may authorize and permit its Affiliates~~ and its ~~and their~~ Representatives ~~to), subject to compliance with Section 5.02(e),~~ may (A) ~~enter into an Acceptable Confidentiality Agreement with the Person making the Company Takeover Proposal and~~ furnish information ~~pursuant to an Acceptable Confidentiality Agreement (including non-public information and data)~~ with respect to the Company ~~and the Company Subsidiaries~~ Entities to the ~~Person~~ third party making such Company Takeover Proposal (and ~~its~~ such third party’s Representatives) ~~(provided~~ pursuant to an Acceptable Confidentiality Agreement; provided, that all such information has previously been provided to Parent or its Representatives or is provided to Parent or its Representatives prior to or ~~substantially concurrent with~~ promptly after (and in any event within twenty-four (24) hours) the ~~time it is provided~~ provision of such information to such ~~Person)~~third party, and (B) participate in discussions regarding the terms of such Company Takeover ~~Proposal~~ Proposal, including terms of a Company Acquisition Agreement with respect thereto, and the negotiation of such terms ~~with,~~ and ~~only with,~~ such Company Acquisition Agreement with the ~~Person~~ third party making such Company Takeover Proposal (and such ~~Person~~third party’s Representatives). ~~Without limiting~~ Notwithstanding anything to the ~~foregoing, it is agreed that any violation of the restrictions set forth~~ contrary in this ~~Section 5.02 by~~ Agreement, (I) the Company may grant a waiver, amendment or release under any ~~Representative of~~ confidentiality agreement, standstill agreement or similar agreement solely to the extent necessary to allow a Company Takeover Proposal to be made to the Company or the Company Board (or any ~~of its Affiliates shall constitute a breach~~ committee thereof), and (II) the Parties agree that, by execution of this ~~Section 5.02 by~~ Agreement, the ~~Company~~Company shall be deemed to have waived, as of immediately prior to the execution and delivery of this Agreement, any provision in any such agreement solely to the extent necessary to allow the applicable counterparty to convey a Company Takeover Proposal to the Company or the Company Board (or any committee thereof). (cb) Except as set forth ~~below~~in Section 6.02(c), ~~neither~~ Section 6.02(d) and Section 6.02(f), the Company Board ~~nor any committee thereof~~ shall not: (i) ~~(A) withdraw or fail to make when required by this Agreement (~~withdraw, change, qualify, withhold or modify in any manner adverse to Parent), or propose ~~or agree~~ publicly to ~~withdraw or fail to make when required by this Agreement (~~withdraw, change, qualify, withhold or modify in any manner adverse to Parent), the Company Board ~~Recommendation or~~ Recommendation; (Bii) adopt, approve, endorse, recommend or otherwise declare advisable, or propose ~~or agree~~ publicly to adopt, approve, endorse, recommend or otherwise declare advisable, any Company Takeover ~~Proposal~~ Proposal; (iii) fail to include the Company Board Recommendation in the Schedule 14D-9; (iv) fail to publicly reaffirm the Company Board Recommendation within ten (10) Business Days after Parent so requests in writing following any public disclosure of a Company Takeover Proposal; or (v) take or fail to take any formal action or make or fail to make any recommendation or public statement in connection with a tender offer or exchange offer (except for a recommendation against any such offer or a customary “stop, look and listen” communication of the type contemplated by Rule 14d-9(f) under the Exchange Act) (any action ~~described~~ in ~~this clause~~ the foregoing clauses (i) through (v) being referred to as a “Company Adverse Recommendation Change”). Except as set forth in Section 6.02(c) and any Acceptable Confidentiality Agreement, the Company Board shall not authorize, permit, approve or ~~(ii) adopt, recommend or declare advisable~~recommend, or propose publicly to authorize, permit, approve or ~~agree to adopt, recommend or declare advisable~~recommend, or allow the Company or any ~~of its Affiliates~~ Company Subsidiary to execute or enter into, any ~~confidentiality agreement (other than an Acceptable Confidentiality Agreement)~~ letter of intent, memorandum of understanding, agreement in principle, ~~merger agreement, acquisition agreement, option agreement, joint venture agreement, alliance agreement, partnership~~ agreement or ~~other similar agreement or arrangement (an “Acquisition Agreement”)~~ commitment constituting, or that ~~may~~ would reasonably be expected to lead to, a any Company Takeover Proposal. , or requiring, or that would reasonably be expected to cause, the Company to abandon or terminate this Agreement (a “Company Acquisition Agreement”). (c) Notwithstanding anything to the ~~foregoing~~contrary in this Agreement, at any time prior to ~~obtaining~~ the Offer Acceptance Time, in response to the Company’s receipt of a Superior Company ~~Shareholder Approval~~Proposal from any third party, the Company Board may ~~(I)~~ make a Company Adverse Recommendation Change or ~~(II) cause the Company to enter into an Acquisition Agreement constituting or that may reasonably be expected to lead to a Company Takeover Proposal not obtained in violation of this Section 5.02 and~~ terminate this Agreement pursuant to Section ~~8.01(c)(ii~~8.01(c)(i), in ~~either case~~ each case, (x) if the Company Board determines in good faith (after consultation with the Company’s outside legal counsel and financial advisor) that the failure to make a ~~financial advisor of nationally recognized reputation), that (x) in the case of clause (I), where the~~ Company Adverse Recommendation Change ~~is made in response~~ or to ~~an Intervening Event~~terminate this Agreement pursuant to Section 8.01(c)(i), ~~or the consequences thereof~~as applicable, ~~and the failure to take such action~~ would ~~reasonably be expected to~~ be inconsistent with the ~~directors’~~ Company Board’s fiduciary duties under applicable Law and (y) such Superior Company Proposal did not result from a material breach of this Section 6.02; provided, however, that the Company Board may not make such a Company Adverse Recommendation Change or so terminate this Agreement pursuant to Section 8.01(c)(i) unless: (i) the Company Board has delivered to Parent prior written notice at least four- (4-) Business Days (or two- (2-) Business Days with respect to a “new written notice” delivered pursuant to this Section 6.02(c)) in advance that the ~~case of~~ Company Board is prepared to make a Company Adverse Recommendation Change or to terminate this Agreement pursuant to Section 8.01(c)(i) (a “Recommendation Change Notice”), which Recommendation Change Notice shall state (A) ~~clause~~ that the Company has received a bona fide Company Takeover Proposal that has not been withdrawn and that the Company Board (Ior a committee thereof) ~~where~~ has concluded in good faith (after consultation with the Company’s outside legal counsel and financial advisor) constitutes a Superior Company Proposal; (B) to the extent not previously provided pursuant to Section 6.02(e), the material terms of such Company Takeover Proposal, the identity of the third party making such Company Takeover Proposal and a copy of such Company Takeover Proposal made in writing and any other written terms and proposals provided (including financing commitments) to the Company and its Representatives; and (C) that the Company Board (or a committee thereof) intends to effect a Company Adverse Recommendation Change or terminate this Agreement pursuant to Section 8.01(c)(i) absent revisions to the terms and conditions of this Agreement, which notice will specify the basis for such Company Adverse Recommendation Change ~~is made in response~~ or termination; and (ii) if requested by Parent, during the four- (4-) Business Day period (or two- (2-) Business Day period with respect to a “new written notice” delivered pursuant to this Section 6.02(c)) after delivery of the Recommendation Change Notice, the Company ~~Takeover Proposal, or (B) clause (II),~~ and its Representatives negotiate in good faith with Parent and its Representatives regarding any revisions to this Agreement committed to in writing by Parent so that such Company Takeover Proposal ~~constitutes~~ would cease to constitute a Superior Company Proposal; provided, however, that, if any material revisions are made to any such Superior Company Proposal, the Company Board shall promptly (but in no event more than twenty-four (24) hours) provide a new written notice notifying Parent of such revisions in writing and comply with the requirements of this Section 6.02(c) with respect to such new written notice, it being understood that the two- (2-) Business Day period referenced in clause (ii) of this sentence shall apply to any such new written notices. (d) Notwithstanding anything to the contrary in this Agreement, at any time prior to the Offer Acceptance Time, in response to a Company ~~shall not be entitled~~ Intervening Event, the Company Board may make a Company Adverse Recommendation Change if the Company Board determines in good faith (after consultation with the Company’s outside legal counsel and financial advisor) that the failure to make a Company Adverse Recommendation Change or take any action set forth in clause (II) unless (1) the Company has given Parent at least five Business Days’ prior written notice (a “Company Notice of Recommendation Change”) (it being understood and agreed that any amendment to any material term of any Superior Company Proposal shall require a new Company Notice of Recommendation Change and a new notice period (which shall be two Business Days instead of five Business Days)) advising Parent that the Company Board intends to take such action (which notice shall specify the identity of the party making such Superior Company Proposal and the material terms thereof and, in the case of an Intervening Event, specifying the details thereof), (2) the Company has negotiated, and has caused its Representatives to negotiate, in good faith with Parent during such notice period, to the extent Parent wishes to negotiate, to enable Parent to propose in writing a binding offer to effect revisions to the terms of this Agreement such that it would cause such Superior Company Proposal to no longer constitute a Superior Company Proposal or for such Intervening Event to no longer warrant a Company Adverse Recommendation Change, and (3) following the end of such notice period, the Company Board or any committee thereof shall have considered in good faith such binding offer or Intervening Event, and shall have determined that the Superior Company Proposal would continue to constitute a Superior Company Proposal if the revisions proposed in such binding offer were to be given effect or that such Intervening Event continues to warrant a Company Adverse Recommendation Change; and provided, further that any purported termination of this Agreement pursuant to this sentence shall be void and of no force and effect unless the termination is in accordance with Section 8.01 and, to the extent required under the terms of this Agreement, the Company pays or causes to be paid to Parent the applicable Company Termination Fee in accordance with Section 6.06 prior to or concurrently with such termination so long as Parent has provided the Company with wire instructions for such payment. (d) In addition to the obligations of the Company set forth in paragraphs (a) through (c) of this Section 5.02, the Company shall (i) promptly (and in any event within 24 hours of receipt thereof by an officer or director of the Company) advise Parent orally and in writing of any Company Takeover Proposal or any inquiry or proposal that may reasonably be expected to lead to a Company Takeover Proposal, the material terms and conditions of any such Company Takeover Proposal or inquiry or proposal (including any changes thereto) and the identity of the Person making any such Company Takeover Proposal or inquiry or proposal, (ii) keep Parent informed in all material respects on a reasonably current basis of the status and details (including any change to the terms thereof) of any Company Takeover Proposal, and (iii) provide to Parent as soon as practicable after receipt or delivery thereof copies of all correspondence and other written and electronic material exchanged between the Company or any of the Company Subsidiaries and any Person that describes any of the material terms or conditions of any Company Takeover Proposal. (e) Nothing contained in this Section 5.02 shall prohibit the Company from (i) issuing a “stop-look-and-listen communication” pursuant to Rule 14d-9(f) promulgated under the Exchange Act or taking and disclosing to its shareholders positions required by Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act, in each case after the commencement of a tender offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act), (ii) issuing a statement in connection with a Company Takeover Proposal that does not involve the commencement of a tender offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act), so long as the statement includes no more information than would be required for a “stop-look-and-listen communication” under Rule 14d-9(f) promulgated under the Exchange Act if such provision was applicable, or (iii) making any disclosure to the shareholders of the Company if, in the good faith judgment of the Company Board (after consultation with outside counsel) failure to so disclose would reasonably be expected to be inconsistent with ~~its~~ the Company Board’s fiduciary duties under applicable Law; provided, however, that the Company Board may not make such Company Adverse Recommendation Change unless the Company Board has delivered to Parent a Recommendation Change Notice identifying such Company Intervening Event and, if requested by Parent, during the four- (4-) Business Day period after delivery of the Recommendation Change Notice, the Company and its Representatives negotiate in good faith with Parent and its Representatives regarding any revisions to this Agreement committed to in writing by Parent so that such Company Intervening Event no longer necessitates a Company Adverse Recommendation Change. (e) Reasonably promptly (but in no event more than twenty-four (24) hours) following receipt by the Company or, to the Knowledge of the Company, its Representatives of any Company Takeover Proposal from a third party, the Company shall notify Parent in writing of (i) the receipt of any Company Takeover Proposal; (ii) the identity of the third party making such Company Takeover Proposal; (iii) a copy of any such Company Takeover Proposal made in writing and any other written terms and proposals provided (including financing commitments) to the Company and its Representatives; and (iv) a written summary of material terms and conditions of any such Company Takeover Proposal not made in writing. The Company shall keep Parent reasonably informed in all material respects on a reasonably prompt basis of the material terms and status of discussions or negotiations with respect to, and supplementally provide any change to the material terms of, any such Company Takeover Proposal (including as required by the foregoing clauses (i) through (iv)) and any amendments thereto. (f) Nothing in this Section 6.02 shall prohibit the Company from (i) complying with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act or (ii) making any disclosure to the Company Stockholders if, in the good-faith judgment of the Company Board (after consultation with the Company’s outside legal counsel) failure to so disclose would be inconsistent with its obligations under applicable Law, it being understood that any such disclosure made by the Company Board (or a committee thereof) pursuant to this Section 6.02(f) shall not otherwise limit or affect the obligations of the Company or the Company Board (or ~~any~~ a committee ~~thereof take~~thereof) or the rights of Parent under this Section 6.02, it being understood that nothing in the foregoing will be deemed to permit the Company or ~~agree~~ the Company Board (or ~~resolve~~ a committee thereof) to ~~take~~effect a Company Adverse Recommendation Change other than in accordance with Section 6.02(c) or Section 6.02(d). For the avoidance of doubt, ~~any action prohibited by Section 5.02(c)~~a factually accurate public statement that describes the Company’s receipt of a Company Takeover Proposal and the operation of this Agreement with respect thereto shall not be deemed a Company Adverse Recommendation Change. (fg) For purposes of this Agreement:

Appears in 1 contract

Samples: Merger Agreement (RPX Corp)

No Solicitation by the Company; Company Board Recommendation. (a) ~~The~~ From the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 7.01, except as otherwise provided in this Section 5.02, the Company shall not, and shall cause the Company Subsidiaries not to, and shall direct and use its ~~Affiliates and~~ reasonable best efforts to cause its ~~and~~ or their respective ~~directors, officers and employees and each of its and their respective investment bankers, accountants, attorneys and other advisors, agents or representatives (collectively, “Representatives”)~~ Representatives not to, (i) directly or indirectly solicit, initiate or knowingly encourage, ~~induce~~ or facilitate any Company Takeover Proposal or any ~~inquiry, discussion~~ inquiry or proposal that ~~may~~ would reasonably be expected to lead to a Company Takeover Proposal, in each case, except for this Agreement and the transactions contemplated by this Agreement, (ii) participate in any discussions or negotiations with any Person (except for the Company Subsidiaries and its and their respective Representatives or Parent and Parent’s Affiliates and its and their respective Representatives) regarding, or furnish to any such Person, any nonpublic information with respect to any Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to lead to a Company Takeover Proposal, (ii) directly or indirectly participate in any discussions or negotiations with any Person regarding, or furnish to any Person any information with respect to, or cooperate in any way with any Person (whether or not a Person making a Company Takeover Proposal) with respect to, any Company Takeover Proposal or any inquiry or proposal that may reasonably be expected to lead to a Company Takeover Proposal or (iii) waive, terminate, ~~modify~~modify or release any Person (other than Parent, amend, release or assign any provisions of any confidentiality or standstill agreement (or similar agreement) to which it is a party or fail to enforce, to the fullest extent permitted under applicable Law, the provisions of any such agreement, including by obtaining an injunction to prevent any breach of such agreements and to enforce specifically the terms and provisions thereof in any court having jurisdiction. The Company shall, and shall cause its Affiliates and its Merger Sub and their respective ~~Representatives to~~Affiliates) from any provision of or grant any permission, ~~immediately cease and cause~~ waiver or request under any “standstill” or similar agreement or obligation (provided that the Company shall not be required to ~~be terminated all existing solicitation, discussions or negotiations with any Person conducted heretofore with respect to any Company Takeover Proposal~~take, or be prohibited from taking, any ~~inquiry~~ action otherwise prohibited or proposal that may reasonably be expected to lead to a Company Takeover Proposal, request the prompt return or destruction of all confidential information previously furnished in connection therewith and immediately terminate all physical and electronic dataroom access previously granted to any such Person or its Representatives. required under this subclause (biii) Notwithstanding the foregoing, if at any time prior to obtaining the Company Shareholder Approval, the Company or any of its Representatives receives a bona fide oral or written Company Takeover Proposal, which Company Takeover Proposal did not result from any breach of this Section 5.02, (i) the Company and its Representatives may contact such Person making the Company Takeover Proposal or its Representatives to request that any bona fide Company Takeover Proposal made orally be made in writing and (ii) in response to a bona fide written Company Takeover Proposal if the Company Board determines in good faith (after consultation with ~~its~~ the Company’s outside ~~counsel and financial advisor~~legal counsel) that ~~the failure to take the following actions~~ such action or inaction would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law) or (iv) subject to Section 7.01(c)(i), enter into any Company Acquisition Agreement; provided, however, that (A) solely ministerial acts, such as answering unsolicited phone calls, shall not be deemed to “facilitate” for purposes of, or otherwise to constitute a breach of, this Section 5.02(a) and (B) the Company and its Representatives shall be permitted to contact the Person who has made such Company Takeover Proposal solely to clarify the terms of such Company Takeover Proposal so that the Company Board may inform itself about such Company Takeover Proposal. The Company shall, and shall cause the Company Subsidiaries to, and shall direct, and use its reasonable best efforts to cause, its and their respective Representatives to, immediately cease all existing solicitations, discussions or negotiations with any Person (except for the Company Subsidiaries and its and their respective Representatives or Parent and Parent’s Affiliates and its and their respective Representatives) conducted prior to the date of this Agreement with respect to any Company Takeover Proposal, request in writing the prompt return or destruction of all confidential information previously furnished and immediately terminate all physical and electronic data room access previously granted to any such Person or its Representatives. Notwithstanding anything to the contrary in this Agreement, at any time prior to obtaining the Company Stockholder Approval, in response to the receipt of a bona fide written Company Takeover Proposal made after the date of this Agreement that the Company Board determines in good faith (after consultation with the Company’s financial advisors and outside legal counsel) that (x) such Company Takeover Proposal, inquiry or proposal either constitutes a Superior Company Proposal or would reasonably be expected to result in a Superior Company Proposal and (y) the failure to take the actions described in clauses (A) and (B) below would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law, and ~~that such~~ which Company Takeover ~~Proposal constitutes~~ Proposal, inquiry or ~~is reasonably likely to lead to~~ proposal was made after the date of this Agreement and did not otherwise result from a ~~Superior Company Proposal~~material breach of this Section 5.02, the Company ~~may (and may authorize and permit its Affiliates~~ and its ~~and their~~ Representatives ~~to), subject to compliance with Section 5.02(e),~~ may (A) ~~enter into an Acceptable Confidentiality Agreement with the Person making the Company Takeover Proposal and~~ furnish information ~~pursuant to an Acceptable Confidentiality Agreement (including non-public information and data)~~ with respect to the Company ~~and the Company Subsidiaries~~ Entities to the Person making such Company Takeover Proposal (and ~~its~~ such Person’s Representatives) (provided that all such information has previously been provided to Parent or is provided to Parent ~~prior to or~~ substantially ~~concurrent~~ concurrently with the time it is provided to such ~~Person~~Person(s)), if prior to so furnishing such information, the Company receives from the third party an executed confidentiality agreement that includes terms that are no less restrictive of such Person than the terms contained in the Confidentiality Agreement; and (B) participate in discussions regarding the terms of such Company Takeover ~~Proposal~~ Proposal, including terms of a Company Acquisition Agreement with respect thereto, and the negotiation of such terms ~~with,~~ and ~~only with,~~ such Company Acquisition Agreement with the Person making such Company Takeover Proposal (and such Person’s Representatives). Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 5.02 by any Representative of the Company or any of its Affiliates shall constitute a breach of this Section 5.02 by the Company. (cb) Except as set forth ~~below~~in Section 5.02(a), ~~neither~~ Section 5.02(c), Section 5.02(d) and Section 5.02(f), the Company Board ~~nor any committee thereof~~ shall not: (i) ~~(A) withdraw or fail to make when required by this Agreement (~~withdraw, change, qualify, withhold or modify in any manner adverse to ~~Parent)~~Parent or Merger Sub, or propose ~~or agree~~ publicly to ~~withdraw or fail to make when required by this Agreement (~~withdraw, change, qualify, withhold or modify in any manner adverse to ~~Parent)~~Parent or Merger Sub, or fail to make when required pursuant to this Agreement, the Company Board ~~Recommendation or~~ Recommendation; (Bii) adopt, approve, recommend or declare advisable, or propose ~~or agree~~ publicly to adopt, approve, recommend or declare advisable, any Company Takeover ~~Proposal~~ Proposal; (iii) fail to include the Company Board Recommendation in the Proxy Statement; or (iv) except as set forth in Section 5.02(a), Section 5.02(c) and Section 5.02(f), including any confidentiality agreement contemplated by Section 5.02(a), authorize, permit, approve, recommend or declare advisable, or propose publicly to authorize, permit, approve, recommend or declare advisable, or cause or allow the Company or any Company Subsidiary to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, agreement or commitment constituting, or that would reasonably be expected to lead to, any Company Takeover Proposal, or requiring, or that would reasonably be expected to cause, the Company to abandon or terminate this Agreement or delay in any material respects or fail to consummate the transactions contemplated hereby (each, a “Company Acquisition Agreement”) (any action ~~described~~ in ~~this clause~~ the foregoing clauses (i) through (iv) being referred to as a “Company Adverse Recommendation Change”). (c) ~~or (ii) adopt, recommend or declare advisable, or propose or agree~~ Notwithstanding anything to ~~adopt, recommend or declare advisable, or allow~~ the ~~Company or any of its Affiliates to execute or enter into, any confidentiality agreement (other than an Acceptable Confidentiality~~ contrary in this Agreement) letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, alliance agreement, partnership agreement or other similar agreement or arrangement (an “Acquisition Agreement”) constituting, or that may reasonably be expected to lead to, a Company Takeover Proposal. Notwithstanding the foregoing, at any time prior to ~~obtaining~~ the receipt of the Company ~~Shareholder~~ Stockholder Approval, in response to the Company’s receipt of a Superior Company Proposal, the Company Board may ~~(I)~~ make a Company Adverse Recommendation Change or ~~(II) cause the Company to enter into an Acquisition Agreement constituting or that may reasonably be expected to lead to a Company Takeover Proposal not obtained in violation of this Section 5.02 and~~ terminate this Agreement pursuant to Section ~~8.01(c)(ii~~7.01(c)(i), in ~~either case~~ each case, if the Company Board determines in good faith (after consultation with the Company’s outside legal counsel and financial advisor) that the failure to make a ~~financial advisor of nationally recognized reputation), that (x) in the case of clause (I), where the~~ Company Adverse Recommendation Change ~~is made in response~~ or to ~~an Intervening Event~~terminate this Agreement pursuant to Section 7.01(c)(i), ~~or the consequences thereof~~as applicable, ~~and the failure to take such action~~ would reasonably be expected to be inconsistent with the ~~directors’~~ Company Board’s fiduciary duties under applicable ~~Law and (y) in~~ Law; provided, however, that the ~~case of (A) clause (I) where~~ Company Board may not make such a Company Adverse Recommendation Change or so terminate this Agreement pursuant to Section 7.01(c)(i) unless: (i) the Company Board has delivered to Parent, at least (3) Business Days in advance, prior written notice that the Company Board is prepared to make a Company Adverse Recommendation Change or to terminate this Agreement pursuant to Section 7.01(c)(i) (a “Recommendation Change Notice”), which Recommendation Change Notice shall, (A) attach the most current draft of any proposed Company Acquisition Agreement with respect to such Superior Company Proposal and (B) include a summary of the material terms and conditions of such Superior Company Proposal; and (ii) if requested by Parent, during the three (3) Business Day period after delivery of the Recommendation Change Notice, the Company and its Representatives negotiate in good faith with Parent and its Representatives regarding any revisions to this Agreement committed to in writing by Parent and the Company represents that the Company Board shall take into account any such revisions; provided, however, that, if any material revisions are made to any such Superior Company Proposal, the Company shall notify Parent of such revisions in writing and, if requested by Parent, during the three (3) Business Day period after delivery of such notice, the Company and its Representatives shall negotiate in good faith with Parent and its Representatives regarding any revisions to this Agreement committed to in writing by Parent and the Company represents that the Company Board shall take into account any such revisions. (d) Notwithstanding anything to the contrary in this Agreement, and other than in connection with a Superior Company Proposal, at any time prior to receipt of the Company Stockholder Approval, in response to a Company ~~Takeover Proposal~~Intervening Event, or the Company Board may make a Company Adverse Recommendation Change if the Company Board determines in good faith (Bafter consultation with the Company’s outside legal counsel and financial advisor) ~~clause (II), such~~ that the failure to make a Company ~~Takeover Proposal constitutes a Superior~~ Adverse Recommendation Change would reasonably be expected to be inconsistent with the Company ~~Proposal~~Board’s fiduciary duties under applicable Law; provided, however, that the Company shall ~~not be entitled~~ have provided prior written notice to Parent, at least three (3) Business Days in advance, of the Company Board’s intention to make a such Company Adverse Recommendation Change ~~or take any action set forth in clause (II) unless (1)~~ and the reasons therefor; and provided, further, that the Company has given Parent at least five Business Days’ prior written notice (a “Company Notice of Recommendation Change”) (it being understood and agreed that any amendment to any material term of any Superior Company Proposal shall require a new Company Notice of Recommendation Change and a new notice period (which shall be two Business Days instead of five Business Days)) advising Parent represents that the Company Board ~~intends~~ shall take into account any changes to ~~take~~ the terms of this Agreement or other mitigating factors or structural changes proposed by Parent in response to such ~~action~~ prior written notice or otherwise, and during such three (~~which notice~~ 3) Business Day period the Company shall ~~specify~~ engage in good faith negotiations with Parent regarding any changes to the ~~identity~~ terms of this Agreement or other mitigating factors or structural changes proposed by Parent. Notwithstanding any Company Adverse Recommendation Change, unless this Agreement has been terminated in accordance with Section 7.01, the ~~party making~~ Company shall hold the Company Stockholders Meeting in accordance with Section 5.04 for purposes of obtaining the Company Stockholders Approval, and nothing contained herein shall be deemed to relieve the Company of such ~~Superior~~ obligation. (e) The Company shall (i) reasonably promptly (but in no event more than twenty-four (24) hours) following receipt of any Company Takeover Proposal, notify Parent in writing of such Company Takeover Proposal ~~and the material terms thereof~~ and, in the case of ~~an Intervening Event, specifying the details thereof), (2) the Company has negotiated, and has caused its Representatives to negotiate, in good faith with Parent during~~ any such notice period, to the extent Parent wishes to negotiate, to enable Parent to propose in writing a binding offer to effect revisions to the terms of this Agreement such that it would cause such Superior Company Proposal to no longer constitute a Superior Company Proposal or for such Intervening Event to no longer warrant a Company Adverse Recommendation Change, and (3) following the end of such notice period, the Company Board or any committee thereof shall have considered in good faith such binding offer or Intervening Event, and shall have determined that the Superior Company Proposal would continue to constitute a Superior Company Proposal if the revisions proposed in such binding offer were to be given effect or that such Intervening Event continues to warrant a Company Adverse Recommendation Change; and provided, further that any purported termination of this Agreement pursuant to this sentence shall be void and of no force and effect unless the termination is in accordance with Section 8.01 and, to the extent required under the terms of this Agreement, the Company pays or causes to be paid to Parent ~~the applicable Company Termination Fee in accordance with Section 6.06 prior~~ as to ~~or concurrently with such termination so long as Parent has provided the Company with wire instructions for such payment. (d) In addition to the obligations~~ receipt of the Company set forth in paragraphs (a) through (c) of this Section 5.02, the Company shall (i) promptly (and in any event within 24 hours of receipt thereof by an officer or director of the Company) advise Parent orally and in writing of any Company Takeover Proposal or any inquiry or proposal that may reasonably be expected to lead to a Company Takeover Proposal, set forth the material terms and conditions of ~~any~~ such Company Takeover Proposal ~~or inquiry or proposal (including any changes thereto)~~ and the identity of the Person making any such Company Takeover Proposal ~~or inquiry or proposal,~~ and (ii) thereafter promptly keep Parent fully informed ~~in all material respects~~ on a ~~reasonably~~ current basis of ~~the status and details (including~~ any material change to the terms ~~thereof)~~ and status of any such Company Takeover Proposal. Without limiting the generality of clause (ii) of the preceding sentence, ~~and (iii)~~ the Company shall provide to Parent as soon as reasonably practicable after receipt or delivery thereof (and in any event within twenty-four (24) hours of receipt or delivery) copies of ~~all correspondence and other~~ any written ~~and electronic material exchanged between~~ Company Takeover Proposal (including draft agreements or term sheets) received by the Company or any Company Subsidiary or any Representative of the Company or any Company Subsidiary from the Person making a Company Takeover Proposal (or such Person’s Representatives) and of all written non-public material provided by the Company or any Company Subsidiary to the Person making a Company Takeover Proposal (or to such Person’s Representatives) that was not previously provided to Parent and is related to such Company Takeover Proposal or is being provided pursuant to the confidentiality agreement executed by the Company and such Person. The Company shall not, and shall cause the Company Subsidiaries ~~and~~ not to, enter into any confidentiality or other agreement with any Person subsequent to the date of this Agreement that ~~describes any of~~ prohibits the ~~material terms or conditions of any~~ Company ~~Takeover Proposal~~from complying with its obligations under this Agreement, including providing such information to Parent. (ef) Nothing ~~contained~~ in this Section 5.02 shall prohibit the Company from (i) ~~issuing a “stop-look-and-listen communication” pursuant to Rule 14d-9(f) promulgated under the Exchange Act or taking and disclosing to its shareholders positions required by~~ complying with Rule 14d-9 or and Rule 14e-2 promulgated under the Exchange Act, ~~in each case after the commencement of a tender offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act), (ii)~~ or from issuing a statement in connection with a Company Takeover Proposal that does not involve the commencement of a tender offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act), so long as the statement includes no more information than would be required for a “stop~~-look-and-listen communication~~, look and listen” ~~under Rule 14d-9(f) promulgated under the Exchange Act if such provision was applicable~~statement pending disclosure of its position thereunder, or (~~iii~~ii) making any disclosure to the ~~shareholders of the~~ Company Stockholders if, in the ~~good~~ good-faith judgment of the Company Board (after consultation with the Company’s outside legal counsel) failure to so disclose would reasonably be expected to be inconsistent with its ~~fiduciary duties~~ obligations under applicable Law; provided, however, that ~~in no event shall~~ any disclosure of a position contemplated by Rule 14e-2(a) or Rule 14d-9 promulgated under the ~~Company~~ Exchange Act or any other disclosure that relates to the approval, recommendation or declaration of advisability by the Company Board with respect to a Company Takeover Proposal shall be deemed to be a Company Adverse Recommendation Change unless the Company, in connection with such disclosure, publicly states that the Company Board expressly rejects the applicable Company Takeover Proposal or ~~any committee thereof take, or agree or resolve to take, any action prohibited by Section 5.02(c)~~expressly reaffirms the Company Board Recommendation. (fg) For purposes of this Agreement:

Appears in 1 contract

Samples: Merger Agreement (Esterline Technologies Corp)

No Solicitation by the Company; Company Board Recommendation. (a) The Company shall not, shall cause the Company Subsidiaries not to, and shall use reasonable best efforts to cause its Affiliates and ~~its and their respective directors, officers and employees and each~~ any of its and their respective ~~investment bankers~~officers, directors, principals, partners, managers, members, attorneys, accountants, ~~attorneys and~~ agents, employees, consultants, financial advisors or other ~~advisors, agents or~~ authorized representatives (collectively, “Representatives”) not to, directly or indirectly (i) ~~directly or indirectly~~ solicit, initiate or knowingly encourage, induce or facilitate any Company Takeover Proposal or any ~~inquiry, discussion~~ inquiry or proposal that ~~may~~ would reasonably be expected to lead to a Company Takeover Proposal, in each case, except for this Agreement and the transactions contemplated hereby, or (ii) ~~directly~~ continue, enter into, maintain, participate or ~~indirectly participate~~ engage in any discussions or negotiations with any Person (except for the Company’s Affiliates and its and their respective Representatives or Parent and Parent’s Affiliates and its and their respective Representatives) regarding, or furnish to any such Person any nonpublic information ~~with respect to, or cooperate in any way with any Person (whether or not a Person making a Company Takeover Proposal)~~ with respect to, any Company Takeover Proposal or any inquiry or proposal that ~~may~~ would reasonably be expected to lead to a Company Takeover Proposal or (iii) waive, terminate, modify, amend, release or assign any provisions of any confidentiality or standstill agreement (or similar agreement) to which it is a party or fail to enforce, to the fullest extent permitted under applicable Law, the provisions of any such agreement, including by obtaining an injunction to prevent any breach of such agreements and to enforce specifically the terms and provisions thereof in any court having jurisdictionProposal. The Company shall, and shall cause its Affiliates and its and their respective Representatives to, immediately cease and cause to be terminated all existing ~~solicitation~~discussions, ~~discussions~~ solicitations or negotiations with or of any Person (except for Parent and Parent’s Affiliates and its and their respective Representatives) conducted heretofore with respect to any Company Takeover Proposal, or any inquiry or proposal that ~~may~~ would reasonably be expected to lead to a Company Takeover Proposal, request the prompt return or destruction of all confidential information previously furnished ~~in connection therewith~~ and ~~immediately~~ terminate all physical and electronic ~~dataroom~~ data room access previously granted to any such Person or its Representatives~~. (b)~~ . Notwithstanding anything to the ~~foregoing~~contrary herein, if at any time prior to obtaining the Company ~~Shareholder~~ Stockholder Approval, in response to the ~~Company or any~~ receipt of ~~its Representatives receives~~ a bona ~~fide oral or~~ fide, written Company Takeover ~~Proposal, which Company Takeover~~ Proposal ~~did~~ made after the date of this Agreement that does not result from ~~any~~ a material breach of this Section ~~5.02, (i~~5.02(a) ~~the Company~~ and ~~its Representatives may contact such Person making the Company Takeover Proposal or its Representatives to request~~ that ~~any bona fide Company Takeover Proposal made orally be made in writing and (ii) in response to a bona fide written Company Takeover Proposal if~~ the Company Board determines in good faith (after consultation with its outside legal counsel and financial ~~advisor~~advisors) ~~that the failure to take the following actions would~~ constitutes or could reasonably be expected ~~to be inconsistent with its fiduciary duties under applicable Law, and that such Company Takeover Proposal constitutes or is reasonably likely~~ to lead to a Superior Company Proposal, the Company ~~may (and may authorize and permit its Affiliates~~ and its ~~and their~~ Representatives ~~to), subject to compliance with Section 5.02(e),~~ may (A) ~~enter into an Acceptable Confidentiality Agreement with the Person making the Company Takeover Proposal and~~ furnish information ~~pursuant to an Acceptable Confidentiality Agreement (including non-public information and data)~~ with respect to the Company and the Company Subsidiaries to the Person making such Company Takeover Proposal (and its Representatives) (provided that all such information has previously been provided to Parent or is provided to Parent ~~prior to or~~ substantially ~~concurrent~~ concurrently with the ~~time it is provided~~ provision of such information to such Person)) pursuant to a confidentiality agreement containing confidentiality restrictions substantially not less favorable to the Company than the Confidentiality Agreement, and (B) participate in discussions regarding the terms of such Company Takeover ~~Proposal~~ Proposal, including terms of a Company Acquisition Agreement with respect thereto, and the negotiation of such terms ~~with, and only with,~~ with the Person making such Company Takeover Proposal (and such Person’s Representatives) but, in each case referred to in the foregoing clauses (A) and (B), if and only if (1) the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties to stockholders under applicable Law and (2) the Company shall have delivered to Parent prior written notice advising Parent that it intends to take the action(s) contemplated by clauses (A) and/or (B). ~~Without limiting~~ Notwithstanding anything to the ~~foregoing~~contrary herein, ~~it is agreed that~~ the Company may grant a waiver, amendment or release under any ~~violation of~~ confidentiality or standstill agreement solely to the ~~restrictions~~ extent necessary to allow a confidential Company Takeover Proposal to be made to the Company or the Company Board. (b) Except as set forth in this Section ~~5.02 by any Representative of the Company or any of its Affiliates shall constitute a breach of this Section 5.02 by the Company. (c) Except as set forth below~~5.02, neither the Company Board nor any committee thereof shall (i) ~~(A) withdraw or fail to make when required by this Agreement (~~withdraw, change, qualify, withhold or modify in any manner adverse to ~~Parent)~~Parent or to the prompt consummation of the Merger, or propose ~~or agree~~ publicly to ~~withdraw or fail to make when required by this Agreement (~~withdraw, change, qualify, withhold or modify in any manner adverse to ~~Parent)~~Parent or to the prompt consummation of the Merger, the Company Board ~~Recommendation or~~ Recommendation, (Bii) adopt, ~~recommend~~ approve or ~~declare advisable~~recommend, or propose ~~or agree~~ publicly to adopt, ~~recommend~~ approve or ~~declare advisable~~recommend, any Company Takeover Proposal, (iii) fail to include in the Proxy Statement the Company Board Recommendation, (iv) take any formal action or make any recommendation or public statement in connection with a tender offer or exchange offer that constitutes a Company Takeover Proposal (except for either a recommendation against such offer or a “stop, look and listen” communication of the type contemplated by Rule 14d-9(f) under the Exchange Act) or (v) resolve or agree to take any of the foregoing actions (any action ~~described~~ in ~~this clause~~ the foregoing clauses (ii)–(v) being referred to as a “Company Adverse Recommendation Change”) ). Except as set forth in this Section 5.02, neither the Company Board nor any committee thereof shall permit, authorize, approve or ~~(ii) adopt,~~ recommend ~~or declare advisable~~to the stockholders of the Company, or propose publicly to permit, authorize, approve or ~~agree~~ recommend to ~~adopt, recommend or declare advisable~~the stockholders of the Company, or allow the Company or any of its Affiliates to execute or enter into, any ~~confidentiality agreement (other than an Acceptable Confidentiality Agreement)~~ letter of intent, memorandum of understanding, agreement, agreement in principle, ~~merger agreement, acquisition agreement, option agreement, joint venture agreement, alliance agreement, partnership agreement~~ undertaking or ~~other similar agreement or arrangement (an “Acquisition Agreement”)~~ commitment constituting, or that ~~may~~ would reasonably be expected to lead to, a any Company Takeover ~~Proposal.~~ Proposal or requiring the Company to abandon or terminate this Agreement (a “Company Acquisition Agreement”). (c) Notwithstanding anything to the ~~foregoing~~contrary herein, at any time prior to obtaining the Company ~~Shareholder~~ Stockholder Approval, the Company Board may (I) make a Company Adverse Recommendation Change or (II) cause the Company to enter into an Acquisition Agreement constituting or that may reasonably be expected to lead to a Company Takeover Proposal not obtained in violation of this Section 5.02 and terminate this Agreement pursuant to Section ~~8.01(c)(ii)~~8.01(c)(i) if the Company receives a bona fide, ~~in either case if~~ written Company Takeover Proposal that does not result from a material breach of Section 5.02(a) and the Company Board determines in good faith (after consultation with its outside legal counsel and a financial ~~advisor~~ advisors and after taking into account any changes to the terms of ~~nationally recognized reputation), that~~ this Agreement proposed by Parent during the five (x5) Business Day period referred to in ~~the case of~~ clause (I), where the Company Adverse Recommendation Change is made in response to an Intervening Event, or the consequences thereof, and the failure to take such action would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law and (yiii) ~~in the case of (A~~below) ~~clause (I) where such Company Adverse Recommendation Change is made in response to a Company Takeover Proposal, or (B) clause (II),~~ that such Company Takeover Proposal constitutes a Superior Company Proposal; provided, however, that the Company ~~shall~~ Board may not ~~be entitled~~ terminate this Agreement pursuant to ~~make a Company Adverse Recommendation Change or take any action set forth in clause (II~~Section 8.01(c)(i) unless (1i) the Company Board has ~~given Parent at least~~ provided five (5) Business Days’ prior written notice to Parent that it is prepared to terminate this Agreement pursuant to Section 8.01(c)(i) in response to a Superior Company Proposal, which written notice shall include the material terms and conditions of such Superior Company Proposal, (~~a “~~ii) if requested by Parent, during the five (5) Business Day period after delivery of such written notice, the Company ~~Notice~~ and its Representatives negotiate in good faith with Parent and its Representatives regarding any revisions to this Agreement committed to in writing by Parent and (iii) at the end of ~~Recommendation Change”~~such five (5) Business Day period and taking into account any changes to the terms of this Agreement committed to in writing by Parent (it being understood and agreed that if there has been any subsequent amendment to any material term of ~~any~~ such Superior Company Proposal, the Company Board shall provide a new written notice and an additional three (3) Business Day period from the date of such written notice shall apply), the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the failure to terminate this Agreement pursuant to Section 8.01(c)(i) as a result of such Superior Company Proposal would be inconsistent with the Company Board’s fiduciary duties under applicable Law. In determining whether to terminate this Agreement pursuant to Section 8.01(c)(i), the Company Board shall ~~require~~ take into account any changes to the terms of this Agreement proposed by Parent in response to such a ~~new~~ written notice. (d) Notwithstanding anything to the contrary herein, at any time prior to obtaining the Company ~~Notice of~~ Stockholder Approval, the Company Board may make a Company Adverse Recommendation Change if (i) a Company Intervening Event has occurred or (ii) the Company has received a Superior Company Proposal that does not result from a material breach of Section 5.02(a) and, in each case, if the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors and after taking into account any changes to the terms of this Agreement proposed by Parent during the five (5) Business Day period referred to in clause (iii) below) that the failure to effect a ~~new notice period (which shall~~ Company Adverse Recommendation Change as a result of the occurrence of such Company Intervening Event or in response to the receipt of such Superior Company Proposal, as the case may be, would be ~~two Business Days instead of five Business Days)) advising Parent~~ inconsistent with the Company Board’s fiduciary duties under applicable Law; provided, however, that the Company Board ~~intends~~ may not make such Company Adverse Recommendation Change, unless (i) the Company Board has provided five (5) Business Days’ prior written notice to ~~take such action (which notice shall specify~~ Parent that it is prepared to effect a Company Adverse Recommendation Change in response to the ~~identity~~ occurrence of a Company Intervening Event or the ~~party making such~~ receipt of a Superior Company ~~Proposal and~~ Proposal, which written notice shall, in the ~~material terms thereof~~ case of a Company Adverse Recommendation Change as a result of a Company Intervening Event, describe such Company Intervening Event in reasonable detail and, in the case of ~~an Intervening Event~~a Company Adverse Recommendation Change in response to the receipt of a Superior Company Proposal, ~~specifying~~ include the ~~details thereof)~~material terms and conditions of such Superior Company Proposal, (2ii) if requested by Parent, during the five (5) Business Day period after delivery of such written notice, the Company ~~has negotiated,~~ and ~~has caused~~ its Representatives ~~to negotiate,~~ negotiate in good faith with Parent ~~during such notice period,~~ and its Representatives regarding revisions to ~~the extent Parent wishes~~ this Agreement committed to ~~negotiate, to enable Parent to propose~~ in writing ~~a binding offer to effect revisions~~ by Parent and (iii) at the end of such five (5) Business Day period and taking into account any changes to the terms of this Agreement ~~such~~ committed to in writing by Parent (it being understood and agreed that ~~it would cause~~ if there has been any subsequent amendment to any material term of such Superior Company ~~Proposal~~ Proposal, the Company Board shall provide a new written notice and an additional three (3) Business Day period from the date of such notice shall apply), the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that the failure to ~~no longer constitute~~ make such a ~~Superior~~ Company ~~Proposal or for such Intervening Event~~ Adverse Recommendation Change would be inconsistent with its fiduciary duties to ~~no longer warrant a~~ stockholders under applicable Law. Notwithstanding any Company Adverse Recommendation Change, and (3) following the end of such notice period, the Company Board or any committee thereof shall have considered in good faith such binding offer or Intervening Event, and shall have determined that the Superior Company Proposal would continue to constitute a Superior Company Proposal if the revisions proposed in such binding offer were to be given effect or that such Intervening Event continues to warrant a Company Adverse Recommendation Change; and provided, further that any purported termination of unless this Agreement ~~pursuant to this sentence shall be void and of no force and effect unless the termination~~ is terminated in accordance with ~~Section 8.01 and~~its terms, to the extent required under the terms of this Agreement, the Company pays or causes to be paid to Parent the applicable Company Termination Fee in accordance with Section 6.06 prior to or concurrently with such termination so long as Parent has provided the Company with wire instructions for such payment. (d) In addition to the obligations of the ~~Company set forth~~ Parties hereunder shall continue in ~~paragraphs~~ full force and effect. (ae) ~~through (c) of this Section 5.02, the~~ The Company shall ~~(i)~~ promptly (and in any event within ~~24 hours of receipt thereof by an officer or director of the Company~~twenty-four (24) hours) advise Parent orally and in writing of (i) any Company Takeover ~~Proposal~~ Proposal, any request outside the ordinary course of business for material non-public information relating to Company or any ~~inquiry~~ of its Subsidiaries or ~~proposal that may~~ for access to the business, properties, assets, books or records of Company or any of its Subsidiaries by any third party (other than by any Governmental Entity or in connection with obtaining the Required Statutory Approvals) which request could reasonably be expected to lead to a Company Takeover Proposal, the material terms and conditions of any such Company Takeover Proposal or ~~inquiry or proposal~~ request (including any changes thereto) and the identity of the Person making any such Company Takeover Proposal or ~~inquiry or proposal~~request, and (ii) any Company Intervening Event or any facts and circumstances that would reasonably be expected to lead to a Company Intervening Event. The Company shall keep Parent informed in all material respects on a reasonably current basis of the material terms and status ~~and details~~ (including any change to the material terms thereof) of any Company Takeover ~~Proposal~~Proposal or request and, ~~and (iii) provide to~~ in the case of a Company Intervening Event, keep Parent ~~as soon as practicable after receipt or delivery thereof copies of~~ informed in all ~~correspondence and other written and electronic~~ material ~~exchanged between the Company or any~~ respects on a current basis of the facts and circumstances related to such Company ~~Subsidiaries and any Person that describes any of the material terms or conditions of any Company Takeover Proposal~~Intervening Event. (ef) Nothing contained in this Section 5.02 shall prohibit the Company from (i) ~~issuing a “stop-look-and-listen communication” pursuant to~~ complying with Rule ~~14d-9(f)~~ 14d-9 and Rule 14e-2 promulgated under the Exchange Act or taking and disclosing to its shareholders positions required by Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act, in each case after the commencement of a tender offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act), (ii) issuing a statement in connection with a Company Takeover Proposal that does not involve the commencement of a tender offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act), so long as the statement includes no more information than would be required for a “stop-look-and-listen communication” under Rule 14d-9(f) promulgated under the Exchange Act if such provision was applicable, or (iii) making any disclosure to the ~~shareholders~~ stockholders of the Company if, in the ~~good~~ good-faith judgment of the Company Board (after consultation with outside legal counsel) failure to so disclose would reasonably be expected to be inconsistent with its ~~fiduciary duties~~ obligations under applicable Law; provided, however, that if any such disclosure or communication has the effect of withdrawing, qualifying or modifying the Company Board Recommendation in a manner adverse to Parent, such disclosure or communication shall constitute a Company Adverse Recommendation Change. The Company shall in no event ~~shall~~ be deemed to violate this Section 5.02 as a result of responding to any unsolicited proposal or inquiry solely by advising the ~~Company~~ Person making such proposal or inquiry of the ~~Company Board or any committee thereof take, or agree or resolve to take, any action prohibited by~~ terms of this Section ~~5.02(c)~~5.02. (fg) For purposes of this Agreement:

Appears in 1 contract

Samples: Merger Agreement (W R Grace & Co)

No Solicitation by the Company; Company Board Recommendation. (a) ~~The~~ Except as expressly permitted by Section 5.04(d), the Company ~~shall not~~shall, and shall cause ~~its Affiliates~~ each of the Company Subsidiaries, and its and their respective officers, directors, ~~officers~~ managers or employees, and ~~employees and each of~~ shall instruct its and their respective ~~investment bankers,~~ accountants, ~~attorneys and other~~ consultants, legal counsel, financial advisors, agents or and other representatives (collectively, “Representatives”~~) not~~ ), to, : (i) ~~directly~~ immediately cease any existing solicitations, discussions or ~~indirectly solicit, initiate or knowingly encourage, induce or facilitate~~ negotiations with any ~~Company Takeover Proposal or~~ Persons that may be ongoing with respect to any inquiry, ~~discussion~~ proposal, discussion, offer or ~~proposal~~ request that ~~may~~ constitutes or could reasonably be expected to lead to an Alternative Proposal (an “Inquiry”); (ii) as promptly as reasonably practicable (and in any event within two (2) Business Days) following the date hereof, request the prompt return or destruction (to the extent provided for by the applicable confidentiality agreement) of all confidential information previously furnished to any Person (other than Parent) that has, within the one (1)-year period prior to the date of this Agreement, made or indicated an intention to make an Alternative Proposal; (iii) subject to the other provisions of this Section 5.04, not, and not to publicly announce any intention to, directly or indirectly, (A) solicit, initiate, knowingly encourage or facilitate any Inquiry (it being understood and agreed that answering unsolicited phone calls shall not be deemed to “facilitate” for purposes of, or otherwise constitute a violation of, this Section 5.04(a)), (B) furnish non-public information to or afford access to the business, employees, officers, contracts, properties, assets, books and records of the Company ~~Takeover~~ and the Company Subsidiaries to any Person in connection with an Inquiry or an Alternative Proposal, (iiC) ~~directly~~ enter into, continue or ~~indirectly~~ otherwise participate in any discussions or negotiations with any Person ~~regarding~~with respect to an Inquiry or an Alternative Proposal, (D) grant any waiver, amendment or release under any standstill provision of any confidentiality or similar agreement to which the Company or any Company Subsidiary is a party, or ~~furnish~~ (E) take any action to ~~any Person any information with respect to, or cooperate in any way with~~ exempt any Person (~~whether~~ other than Parent and Merger Sub) from the restrictions on “business combinations” contained in any applicable business combination, control share acquisition, fair price, moratorium or ~~not a Person making a Company Takeover Proposal~~other takeover or anti-takeover statute or similar Law; and (iv) ~~with respect~~ until the earlier of the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 8.01, subject to the other provisions of this Section 5.04, not, directly or indirectly, (A) approve, agree to, accept, endorse, recommend or submit to a vote of its shareholders any Alternative Proposal, (B) withdraw, qualify or modify, or propose publicly to withdraw, qualify or modify, in a manner adverse to Parent and Merger Sub, the Company ~~Takeover~~ Recommendation, or make any public statement, filing or release inconsistent with the Company Recommendation (including, for the avoidance of doubt, recommending against the Merger or approving, endorsing or recommending any Alternative Proposal), (C) fail to publicly recommend against any Alternative Proposal or fail to publicly reaffirm the Company Recommendation, in each case within five (5) Business Days after Parent so requests in writing, (D) fail to recommend against any ~~inquiry~~ Alternative Proposal subject to Regulation 14D under the Exchange Act in a Solicitation/Recommendation Statement on Schedule 14D-9 within ten (10) Business Days after the commencement of such Alternative Proposal, (E) fail to include the recommendation of the Company Board in favor of approval and adoption of this Agreement and the Merger in the Proxy Statement/Prospectus (any of the foregoing clauses (A) through (E) being an “Adverse Recommendation Change”), or ~~proposal~~ (F) enter into any letter of intent or agreement in principle or any agreement providing for any Alternative Proposal or that ~~may~~ could reasonably be expected to lead to an Alternative Proposal or that contradicts this Agreement or requires the Company to abandon this Agreement (except for Acceptable Confidentiality Agreements). (b) Notwithstanding anything to the contrary in Section 5.04(a), if the Company or any of its Subsidiaries or any of its or their respective Representatives receives a written Alternative Proposal by any Person or Group at any time prior to the Company Stockholders Meeting that was not solicited in material breach of Section 5.04(a), the Company and its Representatives may, prior to the Company Stockholders Meeting, take the actions set forth in subsections (i) and/or (ii) of this Section 5.04(b) if the Company Board (or any committee thereof) has determined, in its good faith judgment (after consultation with the Company’s financial advisors and outside legal counsel), that such Alternative Proposal constitutes or would reasonably be expected to lead to a ~~Company Takeover~~ Superior Proposal or (iii) waive, terminate, modify, amend, release or assign any provisions of any confidentiality or standstill agreement (or similar agreement) to which it is a party or fail to enforce, to the fullest extent permitted under applicable Law, the provisions of any such agreement, including by obtaining an injunction to prevent any breach of such agreements and to enforce specifically the terms and provisions thereof in any court having jurisdiction. The Company shall, and shall cause its Affiliates and its and their respective Representatives to, immediately cease and cause to be terminated all existing solicitation, discussions or negotiations with any Person conducted heretofore with respect to any Company Takeover Proposal, or any inquiry or proposal provided that may reasonably be expected to lead to a Company Takeover Proposal, request the prompt return or destruction of all confidential information previously furnished in connection therewith and immediately terminate all physical and electronic dataroom access previously granted to any such Person or its Representatives. (b) Notwithstanding the foregoing, if at any time prior to obtaining the Company Shareholder Approval, the Company or any of its Representatives receives a bona fide oral or written Company Takeover Proposal, which Company Takeover Proposal did not result from any breach of this Section 5.02, (i) the Company and its Representatives may contact such Person ~~making~~ or Group prior to such conclusion solely to clarify the terms and conditions thereof to determine whether such Alternative Proposal constitutes or would reasonably be expected to lead to a Superior Proposal) and that the failure to take such action would be inconsistent with the directors’ exercise of their fiduciary duties under applicable Law: (i) furnish non-public information to and afford access to the business, employees, officers, contracts, properties, assets, books and records of the Company ~~Takeover Proposal~~ and the Company Subsidiaries to any Person in response to such Alternative Proposal, pursuant to the prior execution of (and the Company and/or Company Subsidiaries may enter into) an Acceptable Confidentiality Agreement (provided that the Company has previously furnished, made available or ~~its Representatives~~ provided access to ~~request that~~ Parent to any ~~bona fide Company Takeover Proposal made orally be made~~ such non-public information or substantially concurrently (and in ~~writing~~ any event within twenty-four (24) hours thereafter) does so); and (ii) enter into and maintain discussions or negotiations with any Person regarding such Alternative Proposal. (c) Reasonably promptly (but in ~~response~~ no event more than twenty-four (24) hours) following the Company’s receipt of any Alternative Proposal or any Inquiry or request for non-public information relating to the Company or any Company Subsidiary by any Person who has made or could reasonably be expected to make any Alternative Proposal from and after the date of this Agreement, the Company shall advise Parent in writing of (i) the receipt of such Alternative Proposal, Inquiry or request, (ii) the identity of the Person making any such Alternative Proposal, Inquiry or request, and (iii) the terms and conditions of such Alternative Proposal or potential Alternative Proposal or the nature of the information requested, and the Company shall as reasonably promptly as practicable provide to Parent: (A) a ~~bona fide~~ copy of such Alternative Proposal or potential Alternative Proposal, if in writing, or a written summary of the material terms of such Alternative Proposal, if oral, and (B) copies of all written requests, proposals, correspondence or offer, including proposed agreements received by the Company, any of the Company ~~Takeover~~ Subsidiaries or any of their respective Representatives. In addition, the Company shall keep Parent reasonably informed on a reasonably current basis, or upon Parent’s reasonable request, (x) of the status and material terms of (including amendments or revisions or proposed amendments or revisions to) each Alternative Proposal or potential Alternative Proposal, and (y) as to the nature of any information requested of the Company or any Company Subsidiary with respect thereto. (d) Notwithstanding anything herein to the contrary, at any time prior to (but not after) the Company Stockholders Meeting, the Company Board may, if the Company has received an Alternative Proposal from any Person or Group that is not withdrawn and the Company Board concludes in good faith constitutes a Superior Proposal (after taking into account the terms of any revised offer by Parent pursuant to this Section 5.04(d)), (i) make an Adverse Recommendation Change, or (ii) terminate this Agreement pursuant to Section 8.01(d) to enter into a definitive written agreement providing for such Superior Proposal simultaneously with the termination of this Agreement, in each case only if (A) if the Company Board ~~determines~~ (or any committee thereof) has determined in good faith (after consultation with its financial and outside ~~counsel and financial advisor)~~ legal advisors), that the failure to take ~~the following actions~~ such action would ~~reasonably be expected to~~ be inconsistent with ~~its~~ the directors’ exercise of their fiduciary duties under applicable Law, and that such Company Takeover Proposal constitutes or is reasonably likely to lead to a Superior Company Proposal, the Company may (and may authorize and permit its Affiliates and its and their Representatives to), subject to compliance with Section 5.02(e), (A) enter into an Acceptable Confidentiality Agreement with the Person making the Company Takeover Proposal and furnish information pursuant to an Acceptable Confidentiality Agreement (including non-public information and data) with respect to the Company and the Company Subsidiaries to the Person making such Company Takeover Proposal (and its Representatives) (provided that all such information has previously been provided to Parent or is provided to Parent prior to or substantially concurrent with the time it is provided to such Person), and (B) participate in discussions regarding the terms of such Company Takeover Proposal and the negotiation of such terms with, and only with, the Person making such Company Takeover Proposal (and such Person’s Representatives). Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 5.02 by any Representative of the Company or any of its Affiliates shall constitute a breach of this Section 5.02 by the Company. (c) Except as set forth below, neither the Company Board ~~nor~~ (or any committee ~~thereof shall (i~~thereof) (A) withdraw or fail to make when required by this Agreement (or modify in any manner adverse to Parent), or propose or agree to withdraw or fail to make when required by this Agreement (or modify in any manner adverse to Parent), the Company Board Recommendation or (B) adopt, recommend or declare advisable, or propose or agree to adopt, recommend or declare advisable, any Company Takeover Proposal (any action described in this clause (i) being referred to as a “Company Adverse Recommendation Change”) or (ii) adopt, recommend or declare advisable, or propose or agree to adopt, recommend or declare advisable, or allow the Company or any of its Affiliates to execute or enter into, any confidentiality agreement (other than an Acceptable Confidentiality Agreement) letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, alliance agreement, partnership agreement or other similar agreement or arrangement (an “Acquisition Agreement”) constituting, or that may reasonably be expected to lead to, a Company Takeover Proposal. Notwithstanding the foregoing, at any time prior to obtaining the Company Shareholder Approval, the Company Board may (I) make a Company Adverse Recommendation Change or (II) cause the Company to enter into an Acquisition Agreement constituting or that may reasonably be expected to lead to a Company Takeover Proposal not obtained in violation of this Section 5.02 and terminate this Agreement pursuant to Section 8.01(c)(ii), in either case if the Company Board determines has determined in good faith (after consultation with its financial and outside ~~counsel and a financial advisor of nationally recognized reputation),~~ legal advisors) that ~~(x) in the case of clause (I), where the Company Adverse Recommendation Change is made in response to an Intervening Event, or the consequences thereof, and the failure to take~~ such action would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law and (y) in the case of (A) clause (I) where such Company Adverse Recommendation Change is made in response to a Company Takeover Proposal, or (B) clause (II), such Company Takeover Alternative Proposal constitutes a Superior Proposal, and (C) the Company has complied in all material respects with this Section 5.04 with respect to such Alternative Proposal; provided, however, that ~~the Company shall not be entitled to make a Company~~ (1) no Adverse Recommendation Change or take any action set forth in clause (II) unless (1) the Company has given Parent at least five Business Days’ prior written notice (a “Company Notice of Recommendation Change”) (it being understood may be made, and agreed that any amendment to any material term of any Superior Company Proposal shall require a new Company Notice of Recommendation Change and a new notice period (which shall be two Business Days instead of five Business Days)) advising Parent that the Company Board intends to take such action (which notice shall specify the identity of the party making such Superior Company Proposal and the material terms thereof and, in the case of an Intervening Event, specifying the details thereof), (2) the Company has negotiated, and has caused its Representatives to negotiate, in good faith with Parent during such notice period, to the extent Parent wishes to negotiate, to enable Parent to propose in writing a binding offer to effect revisions to the terms of this Agreement such that it would cause such Superior Company Proposal to no longer constitute a Superior Company Proposal or for such Intervening Event to no longer warrant a Company Adverse Recommendation Change, and (3) following the end of such notice period, the Company Board or any committee thereof shall have considered in good faith such binding offer or Intervening Event, and shall have determined that the Superior Company Proposal would continue to constitute a Superior Company Proposal if the revisions proposed in such binding offer were to be given effect or that such Intervening Event continues to warrant a Company Adverse Recommendation Change; and provided, further that any purported termination of this Agreement pursuant to this ~~sentence shall~~ Section 5.04(d) and Section 8.01(d) may be ~~void~~ effected, in each case until after the fifth Business Day (the “Notice Period”) following Parent’s receipt of a written notice from the Company advising Parent that the Company has received an Alternative Proposal that is not withdrawn and ~~of no force and effect unless~~ that the ~~termination is~~ Company Board (or any committee thereof) has concluded in ~~accordance with Section 8.01~~ good faith constitutes a Superior Proposal and, absent any revision to the ~~extent required under the~~ terms and conditions of this Agreement, the Company ~~pays~~ Board intends to make an Adverse Recommendation Change on account of such Alternative Proposal or ~~causes~~ terminate this Agreement pursuant to be paid to Parent the applicable Company Termination Fee in accordance with Section 6.06 prior to or concurrently with such termination so long as Parent has provided the Company with wire instructions for such payment. (d) In addition to the obligations of the Company set forth in paragraphs (a) through (c) of this Section ~~5.02~~5.04(d) and Section 8.01(d) (a “Notice of Superior Proposal”) and specifying the reasons therefor, including the Company shall (i) promptly (and in any event within 24 hours of receipt thereof by an officer or director of the Company) advise Parent orally and in writing of any Company Takeover Proposal or any inquiry or proposal that may reasonably be expected to lead to a Company Takeover Proposal, the material terms and conditions of any such ~~Company Takeover~~ Superior Proposal ~~or inquiry or proposal~~ (including ~~any changes thereto~~copies of all relevant documents in the Company’s possession relating to such Superior Proposal) and the identity of the ~~Person~~ party making the Superior Proposal (in each case to the extent not previously provided by the Company to Parent). During the Notice Period, the Company shall, and shall cause its Representatives to negotiate with Parent and its Representatives in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that the Alternative Proposal would cease to constitute a Superior Proposal. Any material amendment to the financial terms or any other material amendment of such Superior Proposal shall require a new Notice of Superior Proposal and the Company ~~Takeover~~ shall be required to comply again with the requirements of this Section 5.04(d), including the Notice Period (it being understood that the “Notice Period” in respect of such new Notice of Superior Proposal will be three (3) Business Days). In determining whether an Alternative Proposal constitutes a Superior Proposal, the Company Board (or ~~inquiry or proposal, (ii~~committee thereof) ~~keep Parent informed in all material respects on a reasonably current basis of the status and details (including~~ shall take into account any ~~change~~ changes to the terms ~~thereof) of any Company Takeover Proposal,~~ and (iii) provide to Parent as soon as practicable after receipt or delivery thereof copies of all correspondence and other written and electronic material exchanged between the Company or any of the Company Subsidiaries and any Person that describes any of the material terms or conditions of ~~any Company Takeover~~ this Agreement proposed by Parent in response to a Notice of Superior Proposal. (e) Nothing contained ~~in this Section 5.02~~ herein shall prohibit the Company from (i) issuing a “stop-look-and-listen communication” pursuant to Rule 14d-9(f) promulgated under the Exchange Act or taking and disclosing to its shareholders positions required by Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act, in each case after the commencement of a tender offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act), (ii) issuing a statement in connection with a Company Takeover Proposal that does not involve the commencement of a tender offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act), so long as the statement includes no more information than would be required for a “stop-look-and-listen communication” under Rule 14d-9(f) promulgated under the Exchange Act if such provision was applicable, or (iii) making any disclosure to the shareholders of the Company if, in the good faith judgment of the Company Board (after consultation with outside counsel) failure to so disclose would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law; provided, however, that in no event shall prevent the Company or the Company Board (or any committee ~~thereof take~~thereof) from issuing a “stop, look and listen” communication pursuant to Rule 14d-9(f) under the Exchange Act or ~~agree~~ complying with Rule 14d-9 and Rule 14e-2 under the Exchange Act with respect to an Alternative Proposal (it being understood that such a “stop, look and listen” statement by the Company Board to the Company’s stockholders shall not be deemed to be an Adverse Recommendation Change) or ~~resolve~~ from making any disclosure to ~~take~~the Company’s stockholders if the Company Board (or any committee thereof), ~~any action prohibited by Section 5.02(c)~~after consultation with outside legal counsel, concludes that its failure to do so would be inconsistent with the directors’ exercise of their fiduciary duties under applicable Law. For the avoidance of doubt, a factually accurate public statement that describes the Company’s receipt of an Alternative Proposal and the operation of this Agreement with respect thereto shall not be deemed an Adverse Recommendation Change. (f) For purposes of this Agreement:

Appears in 1 contract

Samples: Merger Agreement (Helix Technologies, Inc.)

No Solicitation by the Company; Company Board Recommendation. (a) ~~The~~ Subject to Section 5.04(b), Section 5.04(c), Section 5.04(d) and Section 5.04(e), during the period from the date of this Agreement until the earlier of the Effective Time and the termination of this Agreement in accordance with Article VIII, the Company shall not, and shall ~~cause~~ not authorize or permit its Affiliates and its and their respective directors, officers and employees and each of its and their respective investment bankers, accountants, attorneys and other advisors, agents or representatives (collectively, “Representatives”) not Subsidiaries to, and shall not permit its or their Representatives to, directly or indirectly: (i) ~~directly or indirectly solicit~~initiate, ~~initiate or~~ knowingly encourage, ~~induce~~ knowingly facilitate or ~~facilitate any~~ solicit (including in each case by way of furnishing material non-public information of the Company ~~Takeover Proposal~~ or any ~~inquiry~~of its Subsidiaries to any Person) any inquiries with respect to, ~~discussion~~ or the making, submission, announcement or implementation of, any proposal or offer (written or oral) that ~~may~~ constitutes, or would reasonably be expected to lead ~~to a Company Takeover~~ to, an Alternative Proposal, (ii) ~~directly or indirectly~~ initiate, knowingly encourage, participate in or solicit any discussions or negotiations with any Person ~~regarding, or furnish to any Person any information with respect to, or cooperate in any way with any Person~~ (whether or not a Person making a Company Takeover Proposal) with respect to, any Company Takeover Proposal or any inquiry or proposal that may reasonably be expected to lead to a Company Takeover Proposal or (iii) waive, terminate, modify, amend, release or assign any provisions of any confidentiality or standstill agreement (or similar agreement) to which it is a party or fail to enforce, to the fullest extent permitted under applicable Law, the provisions of any such agreement, including by obtaining an injunction to prevent any breach of such agreements and to enforce specifically the terms and provisions thereof in any court having jurisdiction. The Company shall, and shall cause its Affiliates and its and their respective Representatives to, immediately cease and cause to be terminated all existing solicitation, discussions or negotiations ~~with~~ are initiated by the Company, any ~~Person conducted heretofore with respect to any Company Takeover Proposal~~of its Representatives or a third party), or any inquiry or proposal that may reasonably be expected to lead to a Company Takeover Proposal, request the prompt return or destruction of all confidential information previously furnished in connection therewith and immediately terminate all physical and electronic dataroom access previously granted to any such Person or its Representatives. (b) Notwithstanding the foregoing, if at any time prior to obtaining the Company Shareholder Approval, the Company other than Parent or any of its ~~Representatives receives a bona fide oral~~ Representatives, regarding or ~~written Company Takeover~~ in furtherance of such inquiries or relating to an Alternative Proposal, ~~which Company Takeover Proposal did not result from~~ (iii) provide any breach of this Section 5.02, (i) the Company and its Representatives may contact such Person making the Company Takeover Proposal or its Representatives to request that any bona fide Company Takeover Proposal made orally be made in writing and (ii) in response to a bona fide written Company Takeover Proposal if the Company Board determines in good faith (after consultation with its outside counsel and financial advisor) that the failure to take the following actions would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, and that such Company Takeover Proposal constitutes or is reasonably likely to lead to a Superior Company Proposal, the Company may (and may authorize and permit its Affiliates and its and their Representatives to), subject to compliance with Section 5.02(e), (A) enter into an Acceptable Confidentiality Agreement with the Person making the Company Takeover Proposal and furnish information pursuant to an Acceptable Confidentiality Agreement (including material non-public information and data) with respect to the Company and the Company Subsidiaries to the Person making such Company Takeover Proposal (and its Representatives) (provided that all such information has previously been provided to Parent information, documentation or is provided to Parent prior to or substantially concurrent with the time it is provided to such Person), and (B) participate in discussions regarding the terms of such Company Takeover Proposal and the negotiation of such terms with, and only with, the Person making such Company Takeover Proposal (and such Person’s Representatives). Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 5.02 by any Representative data of the Company or any of its ~~Affiliates shall constitute a breach~~ Subsidiaries to any Person, other than Parent or any of ~~this Section 5.02 by the Company.~~ its Representatives, relating to an Alternative Proposal, (civ) ~~Except as set forth below~~otherwise cooperate with any effort or attempt to make, ~~neither the Company Board nor~~ implement or accept any ~~committee thereof shall~~ Alternative Proposal, (iv) ~~(A) withdraw or fail~~ take any action to make ~~when required by this Agreement~~ the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or ~~modify in any manner adverse to Parent~~a third party becoming an “interested shareholder” under, Section 302A.673 of the MBCA), or ~~propose~~ any restrictive provision of any applicable anti-takeover provision in the Company Charter or ~~agree~~ Company Bylaws inapplicable to ~~withdraw or fail~~ any transactions contemplated by an Alternative Proposal (and, to ~~make when required by this Agreement (or modify in any manner adverse to Parent)~~the extent permitted thereunder, the Company ~~Board Recommendation or (B) adopt, recommend or declare advisable, or propose or agree~~ shall promptly take all steps necessary to ~~adopt, recommend or declare advisable,~~ terminate any ~~Company Takeover Proposal (~~waiver that may have been heretofore granted to any action described in this clause (i) being referred to as a “Company Adverse Recommendation Change”) or (ii) adopt, recommend or declare advisable, or propose or agree to adopt, recommend or declare advisable, or allow the Company Person other than Parent or any of its Affiliates ~~to execute or~~ under any such provisions), (vi) enter ~~into,~~ into any ~~confidentiality agreement (other than an Acceptable Confidentiality Agreement)~~ letter of intent, memorandum of understanding, agreement in principle, ~~merger~~ acquisition agreement, ~~acquisition~~ merger agreement, option agreement, joint venture agreement, ~~alliance agreement,~~ partnership agreement or other ~~similar~~ agreement constituting or ~~arrangement~~ related to, or which is intended to or is reasonably likely to lead to, any Alternative Proposal (other than an Acceptable Confidentiality Agreement as set forth in the provisions of Section 5.04(c)) (each, an “Acquisition Agreement”~~) constituting~~), or ~~that may reasonably~~ (vii) adopt or approve any Alternative Proposal, or propose the approval or adoption of any Alternative Proposal, or resolve or agree to take any such action. The Company shall immediately cease, and cause its Subsidiaries and direct its and their Representatives to terminate, any cooperation with or assistance or participation in any inquiries or proposals of any Persons made prior to the date hereof, and any discussions or negotiations with any Persons conducted theretofore by the Company, its Subsidiaries or any of its or their Representatives, in each case, with respect to any Alternative Proposal, and request and instruct to be ~~expected~~ returned or destroyed all non-public information provided by or on behalf of the Company or any of its Subsidiaries to ~~lead to, a Company Takeover~~ such Person relating to an Alternative Proposal. Notwithstanding the foregoing, nothing in this Agreement will prohibit or restrict the Company from, at any time, releasing any Person from any ‘standstill’ provision in favor of the Company to which a Person may be subject solely to the extent to allow the applicable Person to make a confidential Alternative Proposal to the Company Board. (b) From and after the date of this Agreement, the Company shall advise Parent orally and in writing of (i) the receipt by the Company or any of its Subsidiaries, or any of its or their respective Representatives, of any bona fide inquiries, proposals or offers, requests for information or requests for discussions or negotiations regarding any Alternative Proposal, specifying the material terms and conditions thereof and the identity of the Person making such Alternative Proposal, and (ii) any material modifications to the financial or other material terms and conditions of such Alternative Proposal, in each case as promptly as practical (and in any event within 48 hours) of receipt thereof by the Company or any of its Representatives. The Company shall not, and shall cause its Subsidiaries not to, enter into any Contract with any Person subsequent to the date of this Agreement which prohibits the Company from providing such information to Parent and, to the extent the Company is permitted by this Section 5.04 to engage in discussions or negotiations relating to any Alternative Proposal, shall otherwise keep Parent reasonably informed on a timely basis of the status of any such discussions or negotiations. (c) If at any time following the date of this Agreement and prior to obtaining the Company Shareholder Approval (i) the Company has received a written Alternative Proposal from a third party that the Company Board believes in good faith to be bona fide, (ii) such Alternative Proposal did not result from a breach of this Section 5.04 and (iii) the Company Board determines in good faith, after consultation with the Company’s financial advisors and outside legal counsel, that such Alternative Proposal constitutes or could reasonably be expected to lead to a Superior Proposal and that not taking such action would reasonably be expected to be inconsistent with the fiduciary duties of the Company Board to the Company’s shareholders under applicable Law, then the Company may (1) furnish information with respect to the Company and its Subsidiaries to the Person making such Alternative Proposal and (2) engage and participate in discussions or negotiations with the Person making such Alternative Proposal regarding such Alternative Proposal; provided, however, that the Company (x) will not, and will not permit its Subsidiaries to, and will not permit its Representatives to, disclose any material non-public information to such Person without first entering or having entered into an Acceptable Confidentiality Agreement with such Person and (y) will concurrently provide to Parent any non-public information concerning the Company or its Subsidiaries provided or made available to such other Person which was not previously provided or made available to Parent. (d) Except as expressly permitted in this Section 5.04(d), neither the Company Board nor any committee thereof shall (i)(A) withhold, withdraw or modify or qualify, or propose publicly to withhold, withdraw or modify or qualify, in a manner adverse to Parent, the approval, determination of advisability, or recommendation by such Company Board or committee thereof of this Agreement, the Merger, and the other Transactions contemplated hereby, (B) make any other public statement in connection with the Company Shareholders Meeting by or on behalf of such Company Board or committee thereof that would reasonably be expected to have the same effect or (C) approve, determine to be advisable, or recommend, or propose publicly to approve, determine to be advisable, or recommend, to the shareholders of the Company an Alternative Proposal (any action described in this clause being referred to as an “Adverse Recommendation Change”), or (ii) authorize the Company or any of its Subsidiaries to enter into any letter of intent, merger, acquisition or similar agreement that is intended or could reasonably be expected to result in, any Alternative Proposal (other than an Acceptable Confidentiality Agreement). Notwithstanding the foregoing, provided the Company shall not have breached in any material respect its obligations under this Section 5.04, (i) in response to an Intervening Event or (ii) if the Company receives an Alternative Proposal which the Company Board determines in good faith, after consultation with outside legal counsel and financial advisors, constitutes a Superior Proposal (after taking into account all of the adjustments to the terms of this Agreement which may be offered by Parent in accordance with subparagraph (II) below of this Section 5.04(d)), then, in each case, the Company Board may at any time prior to obtaining the Company Shareholder Approval, the Company Board may (I) make a Company Adverse Recommendation Change or (II) cause the Company to enter into an Acquisition Agreement constituting or that may reasonably be expected to lead to a Company Takeover Proposal not obtained in violation of this Section 5.02 and terminate this Agreement pursuant to Section 8.01(c)(ii), in either case if ~~the Company Board~~ it determines in good ~~faith (~~faith, after consultation with the Company’s outside ~~counsel and a financial advisor of nationally recognized reputation)~~legal counsel, that ~~(x) in the case of clause (I), where the Company Adverse Recommendation Change is made in response to an Intervening Event, or the consequences thereof, and the failure to take~~ not taking such action would reasonably be expected to be inconsistent with the ~~directors’~~ fiduciary duties of the Company Board to the Company’s shareholders under applicable ~~Law and~~ Law, (y1) effect an Adverse Recommendation Change or (2) only in the case of ~~(A)~~ the immediately preceding clause (Iii) ~~where such Company Adverse Recommendation Change is made in response to a Company Takeover Proposal, or (B) clause (II~~of this Section 5.04(d), approve or recommend such ~~Company Takeover~~ Superior Proposal ~~constitutes~~ and/or terminate this Agreement to enter into a definitive agreement with respect to such Superior ~~Company Proposal~~Proposal pursuant to Section 8.01(c)(ii); provided, however, that the Company shall not terminate this Agreement pursuant to the foregoing clause (2) unless at or concurrently with, and as a condition to, such termination the Company pays, or causes to be ~~entitled~~ paid, to Parent the Termination Fee in full and otherwise complies with the provisions of Section 8.03; and provided, further, that the Company Board shall not make ~~a Company~~ an Adverse Recommendation Change ~~or take any action set forth in~~ pursuant to the foregoing clause (II1), approve or recommend any Superior Proposal or terminate this Agreement pursuant to the foregoing clause (2), (A) ~~unless~~ if, in the case of clause (2), such Superior Proposal resulted from a breach by the Company of this Section 5.04 and (B) unless, in the case of clauses (1) and (2): (I) the Company ~~has given Parent~~ Board shall have first provided at least ~~five~~ three (3) Business Days’ prior written notice (a “~~Company~~ Notice of Adverse Recommendation Change”) ~~(it being understood and agreed that any amendment~~ to any material term of any Superior Company Proposal shall require a new Company Notice of Recommendation Change and a new notice period (which shall be two Business Days instead of five Business Days)) advising Parent that ~~the Company Board intends~~ it is prepared to take ~~such~~ the applicable action (in response to a Intervening Event or a Superior Proposal, as applicable, which notice shall ~~specify the identity of the party making~~ describe such Intervening Event or Superior ~~Company Proposal and the material terms thereof~~ Proposal, as applicable, in reasonable detail, and, in the case of a Superior Proposal, be accompanied by the most current version of all relevant material written agreements or proposals relating to the transaction that constitutes such Superior Proposal (it being agreed that the Notice of Adverse Recommendation Change and any amendment or update to such Notice of Adverse Recommendation Change and the determination to so deliver such Notice of Adverse Recommendation Change, or update or amend public disclosures with respect thereto, shall not constitute an ~~Intervening Event~~Adverse Recommendation Change for purposes of this Agreement); and (II) Parent does not make, ~~specifying the details thereof),~~ within such three (23) ~~the Company has negotiated, and has caused its Representatives to negotiate, in good faith with Parent during such notice~~ Business Day period, ~~to the extent Parent wishes to negotiate~~a binding, ~~to enable Parent to propose in writing a binding~~ written, irrevocable offer to ~~effect revisions to~~ modify the terms of this Agreement such that it would cause such Superior Company Proposal to no longer constitute a Superior Company Proposal or for such Intervening Event to no longer warrant a Company Adverse Recommendation Change, and (3) following the end of such notice period, the Company Board or any committee thereof shall have considered in good faith such binding offer or Intervening Event, and shall have determined that the Superior Company Proposal would continue to constitute a Superior Company Proposal if the revisions proposed in such binding offer were to be given effect or so that such ~~Intervening Event continues to warrant a Company Adverse Recommendation Change; and provided~~terms, ~~further that any purported termination of this Agreement pursuant to this sentence shall be void and of no force and effect unless the termination is in accordance with Section 8.01 and~~as so modified, to the extent required under the terms of this Agreement, the Company pays or causes to be paid to Parent the applicable Company Termination Fee in accordance with Section 6.06 prior to or concurrently with such termination so long as Parent has provided the Company with wire instructions for such payment. (d) In addition to the obligations of the Company set forth in paragraphs (a) through (c) of this Section 5.02, the Company shall (i) promptly (and in any event within 24 hours of receipt thereof by an officer or director of the Company) advise Parent orally and in writing of any Company Takeover Proposal or any inquiry or proposal that may reasonably be expected to lead to a Company Takeover Proposal, the material terms and conditions of any such Company Takeover Proposal or inquiry or proposal (including any changes thereto) and the identity of the Person making any such Company Takeover Proposal or inquiry or proposal, (ii) keep Parent informed in all material respects on a reasonably current basis of the status and details (including any change to the terms thereof) of any Company Takeover Proposal, and (iii) provide to Parent as soon as practicable after receipt or delivery thereof copies of all correspondence and other written and electronic material exchanged between the Company or any of the Company Subsidiaries and any Person that describes any of the material terms or conditions of any Company Takeover Proposal. (e) Nothing contained in this Section 5.02 shall prohibit the Company from (i) issuing a “stop-look-and-listen communication” pursuant to Rule 14d-9(f) promulgated under the Exchange Act or taking and disclosing to its shareholders positions required by Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act, in each case after the commencement of a tender offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act), (ii) issuing a statement in connection with a Company Takeover Proposal that does not involve the commencement of a tender offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act), so long as the statement includes no more information than would be required for a “stop-look-and-listen communication” under Rule 14d-9(f) promulgated under the Exchange Act if such provision was applicable, or (iii) making any disclosure to the shareholders of the Company ifwould, in the good faith judgment of the Company Board (after consultation with the Company’s outside legal counsel and financial advisors), cause the Alternative Proposal previously constituting a Superior Proposal to no longer constitute a Superior Proposal or that would obviate the need to make an Adverse Recommendation Change in the event of a Intervening Event, as applicable, in each case, taking into consideration any risk of non-consummation and all legal, financial, regulatory and other aspects of each such proposal. The Company agrees that, during the three (3) Business Day period prior to its effecting an Adverse Recommendation Change or taking another action permitted by clause (2) above, if requested by Parent, the Company and its Representatives shall negotiate in good faith with Parent and its Representatives regarding any revisions to the terms of the transactions contemplated hereunder such that the Alternative Proposal in question would no longer constitute a Superior Proposal or that would obviate the need to make an Adverse Recommendation Change in the event of a Intervening Event. Each successive modification to the price or any other material term of any Alternative Proposal shall constitute a new Alternative Proposal for purposes of this Section 5.04(d) and shall require a new Notice of Adverse Recommendation Change under Section 5.04(d)(I) above, if applicable. (e) Nothing contained in this Agreement shall prohibit the Company or the Company Board (or a duly authorized committee thereof) from (i) taking and disclosing to the Company shareholders of the Company a position contemplated by Rule 14e-2(a) under the Exchange Act or making a statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9 under the Exchange Act, Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or issuing a “stop, look and listen” disclosure or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act with respect to an Alternative Proposal or (ii) making any disclosure to the shareholders of the Company (other than an Adverse Recommendation Change, which may be made only in accordance with Section 5.04(d)) if the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its outside legal counsel) , that the failure to ~~so disclose~~ make such disclosure would be reasonably ~~be expected~~ likely to be inconsistent with ~~its fiduciary duties~~ applicable Law, (iii) informing any Person of the existence of the provisions contained in this Section 5.04 or (iv) making any “stop, look and listen” communication to the shareholders of the Company pursuant to Rule 14d-9(f) under the Exchange Act (or any similar communication to the shareholders of the Company). No disclosures under this Section 5.04(e) shall be, in themselves, a breach of this Section 5.04 or a basis for Parent to terminate this Agreement pursuant to Article VIII if such disclosure is required under applicable ~~Law~~Law or required under the rules and regulations of any applicable stock exchange; provided, however, that ~~in no event shall~~ any disclosure of a position contemplated by Rule 14d-9 or Rule 14e-2(a) promulgated under the ~~Company~~ Exchange Act, other than a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act or an express rejection of any applicable Alternative Proposal together with an express reaffirmation of the Company Board ~~or any committee thereof take~~Recommendation, ~~or agree or resolve~~ shall be deemed to ~~take, any action prohibited by Section 5.02(c)~~be an Adverse Recommendation Change. (f) ~~For purposes~~ In the event that the Company makes an Adverse Recommendation Change, it shall promptly make a public announcement of such change and such announcement and shall set forth the material reasons for such change. Notwithstanding any Adverse Recommendation Change, unless this Agreement is terminated in accordance with its terms, the obligations of the parties hereunder shall continue in full force and effect. (g) As used in this Agreement, the following terms shall have the meanings ascribed to them below:

Appears in 1 contract

Samples: Merger Agreement (Mocon Inc)

No Solicitation by the Company; Company Board Recommendation. (a) The Company shall not, and shall ~~cause~~ not authorize any of its Affiliates ~~and its and their respective directors, officers and employees and each~~ or any of its and their respective ~~investment bankers~~officers, directors, principals, partners, managers, members, attorneys, accountants, ~~attorneys and~~ agents, employees, consultants, financial advisors or other ~~advisors, agents or~~ authorized representatives (collectively, “Representatives”) ~~not~~ to, (i) directly or indirectly solicit, initiate or knowingly encourage, induce or facilitate any Company Takeover Proposal or any ~~inquiry, discussion~~ inquiry or proposal that ~~may~~ would reasonably be expected to lead to a Company Takeover Proposal, in each case, except for this Agreement and the transactions contemplated hereby, or (ii) directly or indirectly participate in any discussions or negotiations with any Person (except for the Company’s Affiliates and its and their respective Representatives or Parent and Parent’s Affiliates and its and their respective Representatives) regarding, or furnish to any ~~Person~~ such Person, any nonpublic information with respect to, or cooperate in any way with any such Person ~~(whether or not a Person making a Company Takeover Proposal)~~ with respect to, any Company Takeover Proposal or any inquiry or proposal that ~~may~~ would reasonably be expected to lead to a Company Takeover Proposal or (iii) waive, terminate, modify, amend, release or assign any provisions of any confidentiality or standstill agreement (or similar agreement) to which it is a party or fail to enforce, to the fullest extent permitted under applicable Law, the provisions of any such agreement, including by obtaining an injunction to prevent any breach of such agreements and to enforce specifically the terms and provisions thereof in any court having jurisdictionProposal. The Company shall, and shall cause its Affiliates and its and their respective Representatives to, immediately cease and cause to be terminated all existing ~~solicitation,~~ discussions or negotiations with any Person (except for the Company’s Affiliates and its and their respective Representatives or Parent and Parent’s Affiliates and its and their respective Representatives) conducted heretofore with respect to any ~~Company Takeover Proposal, or any inquiry or proposal that may reasonably be expected to lead to a~~ Company Takeover Proposal, request the prompt return or destruction of all confidential information previously furnished ~~in connection therewith~~ and immediately terminate all physical and electronic ~~dataroom~~ data room access previously granted to any such Person or its Representatives~~. (b)~~ . Notwithstanding anything to the ~~foregoing~~contrary herein, if at any time prior to obtaining the Company Shareholder Approval, the Company or any of its Representatives receives a bona fide oral or written Company Takeover Proposal, which Company Takeover Proposal did not result from any breach of this Section 5.02, (i) the Company and its Representatives may contact such Person making the Company Takeover Proposal or its Representatives to request that any bona fide Company Takeover Proposal made orally be made in writing and (ii) in response to the receipt of a bona fide written Company Takeover Proposal if made after the date of this Agreement that does not result from a breach (other than an immaterial breach) of this Section 5.03(a) by the Company and that the Company Board determines in good faith (after consultation with ~~its~~ outside legal counsel and a financial advisor) ~~that the failure to take the following actions would~~ constitutes or could reasonably be expected ~~to be inconsistent with its fiduciary duties under applicable Law, and that such Company Takeover Proposal constitutes or is reasonably likely~~ to lead to a Superior Company Proposal, the Company and its Representatives may (~~and may authorize and permit its Affiliates and its and their Representatives to), subject to compliance with Section 5.02(e), (A~~1) ~~enter into an Acceptable Confidentiality Agreement with the Person making the Company Takeover Proposal and~~ furnish information ~~pursuant to an Acceptable Confidentiality Agreement (including non-public information and data)~~ with respect to the Company and the Company Subsidiaries to the Person making such Company Takeover Proposal (and its Representatives) (provided that all such information has previously been provided to Parent or is provided to Parent prior to or substantially ~~concurrent~~ concurrently with the ~~time it is provided~~ provision of such information to such Person), ) pursuant to a customary confidentiality agreement and (B2) participate in discussions regarding the terms of such Company Takeover ~~Proposal~~ Proposal, including terms of a Company Acquisition Agreement with respect thereto, and the negotiation of such terms ~~with, and only with,~~ with the Person making such Company Takeover Proposal (and such Person’s Representatives). Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section ~~5.02~~ 5.03(a) by any Representative of the Company or any of its ~~Affiliates~~ Affiliates, in each case, at the Company’s direction, shall constitute a breach of this Section ~~5.02~~ 5.03(a) by the Company. Notwithstanding anything to the contrary herein, the Company may grant a waiver, amendment or release under any confidentiality or standstill agreement to the extent necessary to allow a confidential Company Takeover Proposal to be made to the Company or the Company Board so long as the Company promptly notifies Parent thereof after granting any such waiver, amendment or release. (cb) Except as set forth ~~below~~in Section 5.03(a), Section 5.03(c) and Section 5.03(e), and except for the public disclosure of a Recommendation Change Notice, neither the Company Board nor any committee thereof shall (i) ~~(A) withdraw or fail to make when required by this Agreement (~~withdraw, change, qualify, withhold or modify in any manner adverse to Parent), or propose ~~or agree~~ publicly to ~~withdraw or fail to make when required by this Agreement (~~withdraw, change, qualify, withhold or modify in any manner adverse to Parent), the Company Board Recommendation, (ii) adopt, approve or recommend, or propose publicly to adopt, approve or recommend, any Company Takeover Proposal, (iii) fail to include in the Proxy Statement the Company Board Recommendation or (Biv) ~~adopt~~take any formal action or make any recommendation or public statement in connection with a tender offer or exchange offer (except for a recommendation against such offer or a customary “stop, ~~recommend or declare advisable, or propose or agree to adopt, recommend or declare advisable, any Company Takeover Proposal~~ look and listen” communication of the type contemplated by Rule 14d-9(f) under the Exchange Act) (any action ~~described~~ in ~~this clause~~ the foregoing clauses (ii)–(iv) being referred to as a “Company Adverse Recommendation Change”). Except as set forth in Section 5.03(a), Section 5.03(c) and Section 5.03(e), neither the Company Board nor any committee thereof shall authorize, permit, approve or ~~(ii) adopt, recommend or declare advisable~~recommend, or propose publicly to authorize, permit, approve or ~~agree to adopt, recommend or declare advisable~~recommend, or allow the Company or any of its Affiliates to execute or enter into, any ~~confidentiality agreement (other than an Acceptable Confidentiality Agreement)~~ letter of intent, memorandum of understanding, agreement in principle, ~~merger agreement, acquisition agreement, option agreement, joint venture agreement, alliance agreement, partnership~~ agreement or ~~other similar agreement or arrangement (an “Acquisition Agreement”)~~ commitment constituting, or that ~~may~~ would reasonably be expected to lead to, a any Company Takeover Proposal. , or requiring, or that would reasonably be expected to cause, the Company to abandon or terminate this Agreement (a “Company Acquisition Agreement”). (c) Notwithstanding anything to the ~~foregoing~~contrary herein, at any time prior to obtaining the Company Shareholder Approval, the Company Board may ~~(I)~~ make a Company Adverse Recommendation Change if (i) a Company Intervening Event has occurred or (IIii) ~~cause~~ the Company ~~to enter into~~ has received a Superior Company Proposal that does not result from a breach (other than an ~~Acquisition Agreement constituting or that may reasonably be expected to lead to a~~ immaterial breach) of Section 5.03(a) by the Company ~~Takeover Proposal not obtained in violation of this Section 5.02 and terminate this Agreement pursuant to Section 8.01(c)(ii)~~and, in ~~either case~~ each case, if the Company Board determines in good faith (after consultation with outside legal counsel and a financial ~~advisor of nationally recognized reputation),~~ advisor) that ~~(x) in~~ the ~~case of clause (I), where the~~ failure to effect a Company Adverse Recommendation Change ~~is made~~ as a result of the occurrence of such Company Intervening Event or in response to ~~an Intervening Event~~the receipt of such Superior Company Proposal, or as the ~~consequences thereof~~case may be, ~~and the failure to take such action~~ would reasonably ~~be expected to~~ likely be inconsistent with the ~~directors’~~ Company Board’s fiduciary duties under applicable Law and (y) in the case of (A) clause (I) where such Company Adverse Recommendation Change is made in response to a Company Takeover Proposal, or (B) clause (II), such Company Takeover Proposal constitutes a Superior Company ProposalLaw; provided, however, that the Company ~~shall~~ Board may not ~~be entitled to~~ make a such Company Adverse Recommendation Change ~~or take any action set forth in clause (II)~~ unless (1) the Company Board has ~~given Parent at least five Business Days’~~ provided prior written notice to Parent (a “~~Company Notice of~~ Recommendation ~~Change~~Change Notice”) that it is prepared to effect a Company Adverse Recommendation Change in response to the occurrence of a Company Intervening Event or the receipt of a Superior Company Proposal, which notice shall, in the case of a Company Adverse Recommendation Change in response to the receipt of a Superior Company Proposal, at the Company’s option, either attach the most current draft of any Company Acquisition Agreement with respect to such Superior Company Proposal or include a summary of the material terms and conditions of such Superior Company Proposal, (2) if requested by Parent, during the three (3) Business Day period after delivery of the Recommendation Change Notice, the Company and its Representatives negotiate in good faith with Parent and its Representatives regarding any revisions to this Agreement committed to in writing by Parent and (3) at the end of such three (3) Business Day period and taking into account any changes to the terms of this Agreement committed to in writing by Parent (it being understood and agreed that if Parent has committed in writing to any changes to the terms of this Agreement and there has been any subsequent amendment to any material term of ~~any~~ such Superior Company ~~Proposal shall require a new Company Notice of Recommendation Change and a new notice period (which shall be two Business Days instead of five Business Days)) advising Parent that~~ Proposal, the Company Board ~~intends to take~~ shall provide a new Recommendation Change Notice and an additional three (3) Business Day period from the date of such ~~action (which~~ notice shall ~~specify the identity of the party making such Superior Company Proposal and the material terms thereof and, in the case of an Intervening Event, specifying the details thereof~~apply), ~~(2)~~ the Company ~~has negotiated, and has caused its Representatives to negotiate,~~ Board determines in good faith (after consultation with ~~Parent during~~ outside legal counsel and a financial advisor) that the failure to make such notice period, to the extent Parent wishes to negotiate, to enable Parent to propose in writing a binding offer to effect revisions to the terms of this Agreement such that it would cause such Superior Company Proposal to no longer constitute a Superior Company Proposal or for such Intervening Event to no longer warrant a Company Adverse Recommendation Change, and (3) following the end of such notice period, the Company Board or any committee thereof shall have considered in good faith such binding offer or Intervening Event, and shall have determined that the Superior Company Proposal Change would ~~continue to constitute a Superior Company Proposal if the revisions proposed in such binding offer were to~~ reasonably likely be given effect or that such Intervening Event continues to warrant a Company Adverse Recommendation Change; and provided, further that any purported termination of this Agreement pursuant to this sentence shall be void and of no force and effect unless the termination is in accordance inconsistent with ~~Section 8.01 and, to the extent required~~ its fiduciary duties under ~~the terms of this Agreement, the Company pays or causes to be paid to Parent the~~ applicable ~~Company Termination Fee in accordance with Section 6.06 prior to or concurrently with such termination so long as Parent has provided the Company with wire instructions for such payment~~Law. (d) ~~In addition to the obligations of the Company set forth in paragraphs (a) through (c) of this Section 5.02, the~~ The Company shall ~~(i)~~ promptly (and in any event ~~within 24~~ no later than the later of (i) twenty-four (24) hours ~~of receipt thereof by an officer~~ or ~~director of~~ (ii) 5 p.m. New York City time on the ~~Company~~next Business Day) advise Parent orally and in writing of any ~~Company Takeover Proposal or any inquiry or proposal that may reasonably be expected to lead to a~~ Company Takeover Proposal, the material terms and conditions of any such Company Takeover Proposal ~~or inquiry or proposal (including any changes thereto)~~ and the identity of the Person making any such Company Takeover ~~Proposal or inquiry or proposal, (ii)~~ Proposal. The Company shall keep Parent reasonably informed in all material respects on a reasonably current basis of the material terms and status ~~and details~~ (including any change to the terms thereof) of any Company Takeover Proposal, and (iii) provide to Parent as soon as practicable after receipt or delivery thereof copies of all correspondence and other written and electronic material exchanged between the Company or any of the Company Subsidiaries and any Person that describes any of the material terms or conditions of any Company Takeover Proposal. (e) Nothing contained in this Section ~~5.02~~ 5.03 shall prohibit the Company from (i) ~~issuing a “stop-look-and-listen communication” pursuant to~~ complying with Rule ~~14d-9(f)~~ 14d-9 and Rule 14e-2 promulgated under the Exchange Act or taking and disclosing to its shareholders positions required by Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act, in each case after the commencement of a tender offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act), (ii) issuing a statement in connection with a Company Takeover Proposal that does not involve the commencement of a tender offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act), so long as the statement includes no more information than would be required for a “stop-look-and-listen communication” under Rule 14d-9(f) promulgated under the Exchange Act if such provision was applicable, or (iii) making any disclosure to the shareholders of the Company if, in the ~~good~~ good-faith judgment of the Company Board (after consultation with outside legal counsel) failure to so disclose would reasonably ~~be expected to~~ likely be inconsistent with its ~~fiduciary duties~~ obligations under applicable Law~~; provided, however, that in no event shall the Company or the Company Board or any committee thereof take, or agree or resolve to take, any action prohibited by Section 5.02(c)~~. (f) For purposes of this Agreement:

Appears in 1 contract

Samples: Merger Agreement (Teco Energy Inc)

No Solicitation by the Company; Company Board Recommendation. (a) ~~The~~ Except as permitted by Section 5.04(b) or Section 5.04(e), from the date hereof, the Company ~~shall not~~shall, and shall cause ~~its Affiliates~~ each of the Company Subsidiaries, and its and their ~~respective~~ officers, directors, ~~officers~~ managers or employees, and ~~employees and each of~~ shall instruct its ~~and their respective investment bankers,~~ accountants, ~~attorneys~~ consultants, legal counsel, financial advisors and agents and other ~~advisors, agents or~~ representatives (collectively, “Representatives”~~) not~~ ), to, : (i) immediately cease any existing solicitations, discussions or negotiations with any Persons that may be ongoing with respect to any Alternative Proposal or any proposal that would reasonably be expected to result in an Alternative Proposal; and (ii) until the earlier of the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 8.01, subject to the other provisions of this Section 5.04, not, and not to publicly announce any intention to, directly or ~~indirectly~~ indirectly, (A) solicit, ~~initiate or~~ initiate, knowingly ~~encourage, induce~~ encourage or facilitate any inquiry, discussion, offer or request that constitutes, or would reasonably be expected to lead to, an Alternative Proposal (an “Inquiry”) (it being understood and agreed that ministerial acts that are not otherwise prohibited by this Section 5.04 (such as answering unsolicited phone calls) shall not be deemed to “facilitate” for purposes of, or otherwise constitute a violation of, this Section 5.04), (B) furnish non-public information regarding the Company ~~Takeover~~ and the Company Subsidiaries, afford access to the Company or the Company Subsidiaries to or host any meeting (including by telephone or videoconference) with any Person in connection with an Inquiry or an Alternative Proposal, (C) enter into, continue or maintain discussions or negotiations with any Person with respect to an Inquiry or an Alternative Proposal, (D) otherwise cooperate with or assist or participate in or facilitate any discussions or negotiations (other than informing Persons of the provisions set forth in this Section 5.04 or contacting any person making an Alternative Proposal to ascertain facts or clarify terms and conditions for the sole purpose of the Company Board reasonably informing itself about such Alternative Proposal) regarding, or furnish or cause to be furnished to any Person or “Group” any non-public information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or would reasonably be expected to result in, an Alternative Proposal, (E) approve, agree to, accept, endorse or recommend any Alternative Proposal, (F) submit to a vote of its shareholders, approve, endorse or recommend any Alternative Proposal, (G) effect any Adverse Recommendation Change or (H) enter into any letter of intent or agreement in principle or any ~~inquiry~~agreement providing for any Alternative Proposal (except for Acceptable Confidentiality Agreements). (b) Notwithstanding anything to the contrary in Section 5.04(a), ~~discussion~~ if the Company or ~~proposal~~ any Company Subsidiary or any of its or their respective Representatives receives an Alternative Proposal by any Person or “Group” (as such term is defined in Section 13(d) under the Exchange Act) at any time prior to the Company Shareholders Meeting, the Company and its Representatives may, prior to (but not after) the Company Shareholders Meeting, take the actions set forth in clauses (i), (ii) and/or (iii) of this Section 5.04(b) if the Company Board (or any committee thereof) has determined, in its good faith judgment (after consultation with the Company’s financial advisors and outside legal counsel), that ~~may~~ such Alternative Proposal constitutes or would reasonably be expected to lead to a Company Takeover Proposal, (ii) directly or indirectly participate in any discussions or negotiations with any Person regarding, or furnish to any Person any information with respect to, or cooperate in any way with any Person (whether or not a Person making a Company Takeover Proposal) with respect to, any Company Takeover Superior Proposal or any inquiry or proposal that may reasonably be expected to lead to a Company Takeover Proposal or (iii) waive, terminate, modify, amend, release or assign any provisions of any confidentiality or standstill agreement (or similar agreement) to which it is a party or fail to enforce, to the fullest extent permitted under applicable Law, the provisions of any such agreement, including by obtaining an injunction to prevent any breach of such agreements and to enforce specifically the terms and provisions thereof in any court having jurisdiction. The Company shall, and shall cause its Affiliates and its and their respective Representatives to, immediately cease and cause to be terminated all existing solicitation, discussions or negotiations with any Person conducted heretofore with respect to any Company Takeover Proposal, or any inquiry or proposal that may reasonably be expected to lead to a Company Takeover Proposal, request the prompt return or destruction of all confidential information previously furnished in connection therewith and immediately terminate all physical and electronic dataroom access previously granted to any such Person or its Representatives. (b) Notwithstanding the foregoing, if at any time prior to obtaining the Company Shareholder Approval, the Company or any of its Representatives receives a bona fide oral or written Company Takeover Proposal, which Company Takeover Proposal did not result from any breach of this Section 5.02, (i) the Company and its Representatives may contact such Person making the Company Takeover Proposal or its Representatives to request that any bona fide Company Takeover Proposal made orally be made in writing and (ii) in response to a bona fide written Company Takeover Proposal if the Company Board determines in good faith (after consultation with its outside counsel and financial advisor) that the failure to take the following actions would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, and that such Company Takeover Proposal constitutes or is reasonably likely to lead to a Superior Company Proposal, the Company may (and may authorize and permit its Affiliates and its and their Representatives to), subject to compliance with Section 5.02(e), (A) enter into an Acceptable Confidentiality Agreement with the Person making the Company Takeover Proposal and furnish information pursuant to an Acceptable Confidentiality Agreement (including non-public information and data) with respect to the Company and the Company Subsidiaries to the Person making such Company Takeover Proposal (and its Representatives) (provided that all such information has previously been provided to Parent or is provided to Parent prior to or substantially concurrent with the time it is provided to such Person), and (B) participate in discussions regarding the terms of such Company Takeover Proposal and the negotiation of such terms with, and only with, the Person making such Company Takeover Proposal (and such Person’s Representatives). Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 5.02 by any Representative of the Company or any of its Affiliates shall constitute a breach of this Section 5.02 by the Company. (c) Except as set forth below, neither the Company Board nor any committee thereof shall (i) (A) withdraw or fail to make when required by this Agreement (or modify in any manner adverse to Parent), or propose or agree to withdraw or fail to make when required by this Agreement (or modify in any manner adverse to Parent), the Company Board Recommendation or (B) adopt, recommend or declare advisable, or propose or agree to adopt, recommend or declare advisable, any Company Takeover Proposal (any action described in this clause (i) being referred to as a “Company Adverse Recommendation Change”) or (ii) adopt, recommend or declare advisable, or propose or agree to adopt, recommend or declare advisable, or allow the Company or any of its Affiliates to execute or enter into, any confidentiality agreement (other than an Acceptable Confidentiality Agreement) letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, alliance agreement, partnership agreement or other similar agreement or arrangement (an “Acquisition Agreement”) constituting, or that may reasonably be expected to lead to, a Company Takeover Proposal. Notwithstanding the foregoing, at any time prior to obtaining the Company Shareholder Approval, the Company Board may (I) make a Company Adverse Recommendation Change or (II) cause the Company to enter into an Acquisition Agreement constituting or that may reasonably be expected to lead to a Company Takeover Proposal not obtained in violation of this Section 5.02 and terminate this Agreement pursuant to Section 8.01(c)(ii), in either case if the Company Board determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation), that (x) in the case of clause (I), where the Company Adverse Recommendation Change is made in response to an Intervening Event, or the consequences thereof, and the failure to take such action would reasonably be expected to be inconsistent with the directors’ exercise of their fiduciary duties under applicable ~~Law~~ Law: (i) furnish non-public information to and afford access to the business, employees, officers, contracts, properties, assets, books and records of the Company and the Company Subsidiaries to any Person in response to such Alternative Proposal, pursuant to the prior execution of (and the Company and/or Company Subsidiaries may enter into) an Acceptable Confidentiality Agreement; (ii) enter into and maintain discussions or negotiations with any Person with respect to an Inquiry or an Alternative Proposal; and (yiii) engage in the activities otherwise described in this Section 5.04 with respect to any Person, subject in the case of ~~(A)~~ this clause (Iiii) ~~where~~ to the terms and conditions set forth in this Section 5.04(b). (c) Reasonably promptly (but in no event more than 48 hours) following receipt (to the Knowledge of the Company) of any Alternative Proposal or any Inquiry, the Company shall advise Parent in writing of the receipt of such Alternative Proposal or Inquiry, and the terms and conditions of such Alternative Proposal or Inquiry (including, in each case, the identity of the Person or Group making any such Alternative Proposal or Inquiry), and the Company shall as reasonably promptly as practicable provide to Parent (i) a copy of such Alternative Proposal or Inquiry, if in writing; or (ii) a summary of the material terms of such Alternative Proposal or Inquiry, if oral. The Company agrees that it shall reasonably promptly provide to Parent any non-public information concerning the Company or any of its Subsidiaries that may be provided (pursuant to Section 5.04(b)) to any other Person or Group in connection with any such Alternative Proposal that has not previously been provided to Parent. In addition, the Company shall keep Parent reasonably informed on a prompt basis of any material developments regarding the Alternative Proposal or any material change to the terms or status of the Alternative Proposal or Inquiry (in each case in a manner that is not unduly disruptive of the Company’s ability to conduct good faith discussions in accordance with this Section 5.04 with the party making such Alternative Proposal and its Representatives). (d) Notwithstanding anything herein to the contrary, at any time prior to the Company Shareholders Meeting, the Company Board may (i) withdraw, qualify or modify, or propose publicly to withdraw, qualify or modify, in a manner adverse to Parent, the Company Recommendation or take any action, or make any public statement, filing or release inconsistent with the Company Recommendation (including, for the avoidance of doubt, recommending against the Merger) in response to an Intervening Event or a Superior Proposal (any of the foregoing being an “Adverse Recommendation Change”) and (ii) if the Company has received a Superior Proposal (after taking into account the terms of any revised offer by Parent pursuant to this Section 5.04(d)), terminate this Agreement pursuant to Section 8.01(d) to enter into a definitive written agreement providing for such Superior Proposal simultaneously with the termination of this Agreement (so long as such Superior Proposal did not result from a material breach of this Section 5.04), in the case of clauses (i) and (ii), if the Company Board has determined in good faith, after consultation with outside legal counsel, that the failure to take such action would reasonably be expected to be inconsistent with the directors’ exercise of their fiduciary duties under applicable Law; provided that the Company Board may not make an Adverse Recommendation Change ~~is made~~ or, in ~~response to~~ the case of a ~~Company Takeover~~ Superior Proposal, ~~or (B) clause (II~~terminate this Agreement pursuant to Section 8.01(d), unless: (i) the Company has provided prior written notice to Parent at least three Business Days in advance (the “Notice Period”) of taking such ~~Company Takeover Proposal constitutes~~ action, which notice shall advise Parent in reasonable detail of the circumstances giving rise to the Adverse Recommendation Change, and, in the case of a Superior ~~Company~~ Proposal~~; provided, however~~, that the Company Board has received a Superior Proposal and shall ~~not be entitled to make~~ include a ~~Company Adverse Recommendation Change or take any action set forth in clause (II) unless (1) the Company has given Parent at least five Business Days’ prior written notice (a “Company Notice~~ copy of Recommendation Change”) (it being understood and agreed that any amendment to any material term of any Superior Company Proposal shall require a new Company Notice of Recommendation Change and a new notice period (which shall be two Business Days instead of five Business Days)) advising Parent that the Company Board intends to take such action (which notice shall specify the identity of the party making such Superior ~~Company~~ Proposal ~~and~~ (or, where no such copy is available, a description of the material terms ~~thereof and,~~ and conditions of such Superior Proposal) and in the case of an Intervening Event, ~~specifying~~ the ~~details thereof)~~material facts and circumstances relating to such Intervening Event; (ii) during the Notice Period, ~~(2)~~ the Company has ~~negotiated, and has caused its Representatives to negotiate,~~ negotiated with Parent in good faith ~~with Parent during such notice period,~~ (to the extent Parent ~~wishes~~ desires to so negotiate, ) to ~~enable Parent to propose~~ make such adjustments in ~~writing a binding offer to effect revisions to~~ the terms and conditions of this Agreement ~~such that it would cause~~ so that, in the case of a Superior Proposal, such Superior Proposal ceases to constitute (in the judgment of the Company ~~Proposal~~ Board) a Superior Proposal, or in cases not involving a Superior Proposal, the failure to make such Adverse Recommendation Change (in the judgment of the Company Board after consultation with the Company’s financial advisors and outside legal counsel) would no longer ~~constitute~~ be inconsistent with the directors’ exercise of their fiduciary duties under applicable Law; and (iii) following the Notice Period, the Company Board has determined in good faith, after considering the results of such negotiations and giving effect to any proposals, amendments or modifications made or agreed to by Parent, if any, and after consultation with the Company’s financial advisors and outside legal counsel, that, in the case of a Superior ~~Company~~ Proposal, such Superior Proposal remains a Superior Proposal or, in cases not involving a Superior Proposal, that the failure to make such Adverse Recommendation Change continues to be inconsistent with the directors’ exercise of their fiduciary duties under applicable Law. If during the Notice Period any material revisions (it being understood that a change in price per share shall be a material revision) are made to the Superior Proposal or ~~for such Intervening Event~~ any material change to ~~no longer warrant a Company~~ the facts and circumstances relating to the Adverse Recommendation Change, and (3) following the end of such notice period, the Company Board or any committee thereof shall have considered in good faith such binding offer or Intervening Event, and shall have determined that the Superior Company Proposal would continue to constitute a Superior Company Proposal if the revisions proposed in such binding offer were to be given effect or that such Intervening Event continues to warrant a Company Adverse Recommendation Change; and provided, further that any purported termination of this Agreement pursuant to this sentence shall be void and of no force and effect unless the termination is in accordance with Section 8.01 and, to the extent required under the terms of this Agreement, the Company pays or causes to be paid to Parent the applicable Company Termination Fee in accordance with Section 6.06 prior to or concurrently with such termination so long as Parent has provided the Company with wire instructions for such payment. (d) In addition to the obligations of the Company set forth in paragraphs (a) through (c) of this Section 5.02, the Company shall (ideliver a new written notice to Parent and shall comply with the requirements of Section 5.04(c) ~~promptly (~~with respect to such new written notice and ~~in any event within 24 hours~~ of ~~receipt thereof by an officer or director~~ Section 5.04(d); provided, however, that for purposes of this sentence, references to the ~~Company) advise Parent orally and in writing of any Company Takeover Proposal or any inquiry or proposal that may reasonably~~ three Business Day period above shall be ~~expected~~ deemed to ~~lead~~ be references to a Company Takeover Proposal, the material terms and conditions of any such Company Takeover Proposal or inquiry or proposal (including any changes thereto) and the identity of the Person making any such Company Takeover Proposal or inquiry or proposal, (ii) keep Parent informed in all material respects on a reasonably current basis of the status and details (including any change to the terms thereof) of any Company Takeover Proposal, and (iii) provide to Parent as soon as practicable after receipt or delivery thereof copies of all correspondence and other written and electronic material exchanged between the Company or any of the Company Subsidiaries and any Person that describes any of the material terms or conditions of any Company Takeover Proposaltwo Business Day period. (e) ~~Nothing~~ Except as expressly permitted by Section 5.04(d), the Company Board shall not, and shall not publicly propose to: (i) (A) withhold, withdraw, qualify or modify or amend, in each case, in a manner adverse to Parent or Merger Sub, the Company Recommendation; (B) authorize, approve, adopt or recommend, or otherwise declare advisable, any Acquisition Proposal; (C) take any action, or make any recommendation or public statement in connection with any Acquisition Proposal that is a tender offer or exchange offer other than an unequivocal recommendation against such offer; provided that nothing contained in this ~~Section 5.02~~ Agreement shall ~~prohibit~~ prevent the Company or the Company Board from ~~(i)~~ issuing a “stop~~-look-and-listen communication~~, look and listen” communication pursuant to Rule 14d-9(f) ~~promulgated~~ under the Exchange Act in which the Company Board expressly reaffirms the Company Recommendation, or ~~taking and disclosing to its shareholders positions required by~~ complying with Rule 14d-9 or and Rule 14e-2 promulgated under the Exchange Act, in each case after the commencement of a tender offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act), (ii) issuing a statement in connection with a Company Takeover Proposal that does not involve the commencement of a tender offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act), so long as the statement includes no more information than would be required for a “stop-look-and-listen communication” under Rule 14d-9(f) promulgated under the Exchange Act ~~if such provision was applicable,~~ with respect to an Alternative Proposal or ~~(iii)~~ from making any disclosure to the Company’s shareholders ~~of the Company if, in the good faith judgment of~~ if the Company Board (after consultation with outside legal counsel) concludes that its failure to do so ~~disclose~~ would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law; provided, ~~however~~further, that any such communication or disclosure shall include an express reaffirmation of the Company Recommendation and that, if such disclosure does not reaffirm the Company Recommendation or has the effect of withdrawing or adversely modifying the Company Recommendation, such disclosure shall be deemed to be an Adverse Recommendation Change and Parent shall have the right to terminate this Agreement as set forth in ~~no event shall~~ Section 8.01(f) hereto, or (D) or fail to reaffirm the Company Recommendation within five (5) Business Days after receiving a request to do so from Parent; or (ii) cause or permit the Company or any of the Company ~~Board~~ Subsidiaries to enter into any Acquisition Agreement or ~~any committee thereof take,~~ otherwise resolve or agree ~~or resolve~~ to ~~take~~do so. For the avoidance of doubt, a factually accurate public statement that describes the Company’s receipt of an Alternative Proposal and the operation of this Agreement with respect thereto shall not be deemed an Adverse Recommendation Change; provided that the Company shall include an express reaffirmation of the Company Recommendation in any ~~action prohibited by Section 5.02(c)~~such statement. (f) For purposes of this Agreement:

Appears in 1 contract

Samples: Merger Agreement (KAMAN Corp)

No Solicitation by the Company; Company Board Recommendation. (a) ~~The~~ During the No-Shop Period, the Company shall not, and shall ~~cause~~ instruct its ~~Affiliates~~ affiliates and its and their respective ~~directors, officers and employees and each of its and their respective investment bankers, accountants, attorneys and other advisors, agents or representatives (collectively, “Representatives”)~~ Representatives not to, (i) directly or indirectly solicit, ~~initiate~~ initiate, or knowingly ~~encourage, induce~~ facilitate or ~~facilitate~~ encourage any Company ~~Takeover~~ Alternative Transaction Proposal or any ~~inquiry, discussion~~ inquiry or proposal that ~~may~~ would reasonably be expected to lead to a Company ~~Takeover Proposal,~~ Alternative Transaction Proposal or (ii) directly or indirectly participate in any discussions or negotiations with any ~~Person~~ person regarding, or furnish to any ~~Person~~ person any non-public information with respect to, or knowingly cooperate in any way with any ~~Person (whether~~ person in connection with soliciting, initiating, facilitating or ~~not a Person making a Company Takeover Proposal) with respect to~~encouraging, any Company ~~Takeover~~ Alternative Transaction Proposal or the submission or making of any inquiry or proposal that ~~may~~ would reasonably be expected to lead to a Company Takeover Proposal or (iii) waive, terminate, modify, amend, release or assign any provisions of any confidentiality or standstill agreement (or similar agreement) to which it is a party or fail to enforce, to Alternative Transaction Proposal. During the ~~fullest extent permitted under applicable Law~~No-Shop Period, the provisions of any such agreement, including by obtaining an injunction to prevent any breach of such agreements and to enforce specifically the terms and provisions thereof in any court having jurisdiction. The Company shall, and shall ~~cause~~ instruct its ~~Affiliates~~ affiliates and its and their respective Representatives to, immediately cease and cause to be terminated all existing ~~solicitation,~~ discussions or negotiations with any ~~Person~~ person conducted heretofore with respect to any Company ~~Takeover~~ Alternative Transaction Proposal, or any inquiry or proposal that ~~may~~ would reasonably be expected to lead to a Company ~~Takeover~~ Alternative Transaction Proposal, request the prompt return or destruction of all confidential information previously furnished ~~in connection therewith~~ and immediately terminate all physical and electronic dataroom access previously granted to any such ~~Person~~ person or its ~~Representatives. (b)~~ Representatives that was provided by or on behalf of the Company in connection with any Company Alternative Transaction Proposal or any inquiry or proposal that would reasonably be expected to lead to a Company Alternative Transaction Proposal. Notwithstanding the ~~foregoing~~foregoing or any other provision of this Agreement to the contrary, if at any time prior to obtaining the Company ~~Shareholder Approval,~~ Stockholder Approval the Company or any of its Representatives receives a ~~bona fide oral or written~~ Company ~~Takeover Proposal, which Company Takeover~~ Alternative Transaction Proposal that did not result from any breach of this Section ~~5.02~~5.5(a), (i) the Company and its Representatives may contact ~~such Person~~ the person or group making the Company ~~Takeover~~ Alternative Transaction Proposal solely to clarify the terms and conditions thereof or ~~its Representatives~~ to request that any ~~bona fide~~ Company ~~Takeover~~ Alternative Transaction Proposal made orally be made in writing and (ii) ~~in response to a bona fide written Company Takeover Proposal~~ if the Company Board determines in good faith (after consultation with its outside counsel and financial ~~advisor~~advisors) that ~~the failure to take the following actions~~ such Company Alternative Transaction Proposal constitutes or would reasonably be expected ~~to be inconsistent with its fiduciary duties under applicable Law, and that such Company Takeover Proposal constitutes or is reasonably likely~~ to lead to a Superior Company Proposal, then the Company ~~may (~~and ~~may authorize and permit~~ any of its ~~Affiliates and its and their~~ Representatives ~~to)~~may, subject to compliance with Section ~~5.02(e~~5.5(c), (Ax) ~~enter into an Acceptable Confidentiality Agreement with the Person making the Company Takeover Proposal and~~ furnish information ~~pursuant to an Acceptable Confidentiality Agreement (including non-public information and data)~~ with respect to the Company and ~~the Company~~ its Subsidiaries to the ~~Person~~ person or group making such Company ~~Takeover~~ Alternative Transaction Proposal (and its or their Representatives) (provided that all such information has previously been provided to Parent or is provided to Parent prior to or substantially concurrent with the time it is provided to such ~~Person)~~person) pursuant to a customary confidentiality agreement not less restrictive of such person than the Confidentiality Agreement is to Parent, including with respect to any standstill or similar provisions contained therein, and (By) participate in discussions regarding the terms of such Company ~~Takeover~~ Alternative Transaction Proposal and the negotiation of such terms ~~with, and only with,~~ with the ~~Person~~ person or group making such Company ~~Takeover~~ Alternative Transaction Proposal (and such ~~Person~~person’s or group’s Representatives). Without limiting the foregoing, ~~it is agreed~~ the Company and Parent agree that any violation of the restrictions set forth in this Section ~~5.02 by any Representative of~~ 5.5(a) applicable to the Company or by any of its ~~Affiliates~~ Representatives, to the extent acting on its behalf or at its direction, shall constitute a breach of this Section ~~5.02~~ 5.5(a) by the Company. (cb) Except as set forth below, neither the Company Board nor any committee thereof shall (i) (A) withdraw ~~or fail to make when required by this Agreement~~ (or modify in any manner adverse to Parent), or propose ~~or agree~~ publicly to withdraw ~~or fail to make when required by this Agreement~~ (or modify in any manner adverse to Parent), the approval, recommendation or declaration of advisability by the Company Board ~~Recommendation~~ or any such committee thereof with respect to this Agreement and the transactions contemplated hereby or (B) ~~adopt~~approve, recommend or declare advisable, or propose ~~or agree~~ publicly to ~~adopt~~approve, recommend or declare advisable, any Company ~~Takeover~~ Alternative Transaction Proposal (any action ~~described~~ in this clause (i) being referred to as a “Company Adverse Recommendation Change”) or (ii) ~~adopt, recommend or declare advisable, or propose or agree to adopt, recommend or declare advisable, or~~ allow the Company or any of its ~~Affiliates~~ Subsidiaries to execute or enter into, any ~~confidentiality~~ binding agreement in connection with any Company Alternative Transaction Proposal (other than ~~an Acceptable Confidentiality Agreement) letter of intent, memorandum of understanding,~~ a confidentiality agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, alliance agreement, partnership agreement or other similar agreement or arrangement (an “Acquisition Agreement”) constituting, or that may reasonably be expected expressly permitted pursuant to ~~lead to, a Company Takeover Proposal~~Section 5.5(a)). Notwithstanding the ~~foregoing~~foregoing or any other provision of this Agreement to the contrary, at any time prior to obtaining the Company ~~Shareholder~~ Stockholder Approval, the Company Board may ~~(I)~~ make a Company Adverse Recommendation Change or (IIand, in the case of clause (1) ~~cause the Company to enter into an Acquisition Agreement constituting or that may reasonably be expected to lead to a Company Takeover Proposal not obtained in violation~~ of this ~~Section 5.02 and~~ sentence, terminate this Agreement pursuant to Section ~~8.01(c)(ii~~7.1(g)) (1) if the Company Board determines hereunder that a Company Alternative Transaction Proposal constitutes a Superior Company Proposal or (2) in response to any event, fact, circumstance, development or occurrence that is material to the Company and its Subsidiaries, taken as a whole, that was not known to, or reasonably foreseeable by, the Company Board as of the date of this Agreement, which event, fact, circumstance, development or occurrence becomes known to the Company Board prior to obtaining the Company Stockholder Approval and does not involve or relate to a Company Alternative Transaction Proposal, in either ~~case if~~ case, the Company Board determines in good faith (after consultation with its outside counsel and a financial ~~advisor of nationally recognized reputation),~~ advisors) that ~~(x) in the case of clause (I), where the Company Adverse Recommendation Change is made in response to an Intervening Event, or the consequences thereof, and~~ the failure to ~~take such action~~ do so would be reasonably ~~be expected~~ likely to be inconsistent with ~~the directors’~~ its fiduciary duties under applicable Law and (y) in the case of (A) clause (I) where such Company Adverse Recommendation Change is made in response to a Company Takeover Proposal, or (B) clause (II), such Company Takeover Proposal constitutes a Superior Company ProposalLaw; provided, however, that the Company shall not be entitled to exercise its right to make a Company Adverse Recommendation Change ~~or take any action set forth~~ or, in ~~clause~~ the case of a Company Alternative Transaction Proposal which constitutes a Superior Company Proposal, terminate this Agreement pursuant to Section 7.1(g) unless, in either case, (~~II) unless (1~~A) the Company has given Parent at least ~~five~~ three (3) Business Days’ prior written notice (a “Company Notice of ~~Recommendation~~ Change”) that the Company Board intends to take such action and specifying the reasons therefor, including, in the case of a Superior Company Proposal, the material terms of any Superior Company Proposal that is the basis of the proposed action by the Company Board, including the identity of the person making such Superior Company Proposal and a copy of the agreement or proposal with respect to such Superior Company Proposal (it being understood and agreed that ~~any~~ a material amendment to any material term of ~~any~~ such Superior Company Proposal shall require a new Company Notice of ~~Recommendation~~ Change and a new ~~notice period~~ two (~~which shall be two~~ 2) Business Days instead of five Business Days)) advising Parent that the Company Board intends to take such action (which notice shall specify the identity of the party making such Superior Company Proposal and the material terms thereof and, in the case of an Intervening Event, specifying the details thereofDay period), (B) during such three (3) Business Day or two (2) Business Day period, as applicable, the Company has negotiated, and has caused its Representatives to negotiate, with Parent in good ~~faith with Parent during such notice period~~faith, to the extent Parent ~~wishes~~ desires to negotiate, to enable Parent to propose in writing a binding offer to ~~effect revisions to~~ make such adjustments in the terms and conditions of this Agreement so that, if applicable, such ~~that it would cause such Superior~~ Company Alternative Transaction Proposal ceases to ~~no longer~~ constitute a Superior Company Proposal ~~or for such Intervening Event to no longer warrant~~ or, in connection with a Company Adverse Recommendation ~~Change~~Change not involving or relating to a Company Alternative Transaction Proposal, would cause the Company Board no longer to believe that the failure to make a Company Adverse Recommendation Change would be reasonably likely to be inconsistent with its fiduciary duties under applicable Law, and (3C) ~~following~~ at the end of such ~~notice~~ three (3) Business Day or two (2) Business Day period, as applicable, the Company Board ~~or any committee thereof~~ shall have considered in good faith such binding offer ~~or Intervening Event,~~ and shall have determined that the Superior Company Proposal ~~would continue~~ continues to constitute a Superior Company Proposal or, other than in the case of a Company Alternative Transaction Proposal, that it would continue to be reasonably likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law if the ~~revisions proposed in such binding offer were~~ Company Board failed to ~~be given effect or that such Intervening Event continues to warrant~~ make a Company Adverse Recommendation Change~~; and provided, further that any purported termination of~~ . Subject to the Company’s right to terminate this Agreement pursuant to ~~this sentence shall be void and of no force and effect unless the termination is in accordance with~~ Section ~~8.01 and~~7.1(g), ~~to the extent required under the terms of this Agreement~~notwithstanding any Company Adverse Recommendation Change, the Company ~~pays or causes~~ shall cause the adoption of this Agreement and the approval of the Combination to be ~~paid~~ submitted to ~~Parent~~ a vote of the ~~applicable Company Termination Fee in accordance with Section 6.06 prior to or concurrently with such termination so long as Parent has provided~~ Company’s stockholders at the Company ~~with wire instructions for such payment~~Stockholders’ Meeting. (dc) In addition to the obligations of the Company set forth in ~~paragraphs (a~~Sections 5.5(a) ~~through (c) of this Section 5.02~~and 5.5(b), at any time prior to obtaining the Company Stockholder Approval, the Company shall ~~(i)~~ promptly (and in any event within ~~24 hours of receipt thereof by an officer or director~~ one (1) Business Day after knowledge of the ~~Company~~Company of the receipt thereof) advise Parent ~~orally and~~ in writing of its receipt of any Company ~~Takeover Proposal or any inquiry or proposal that may reasonably be expected to lead to a Company Takeover~~ Alternative Transaction Proposal, the material terms and conditions of any such Company ~~Takeover~~ Alternative Transaction Proposal ~~or inquiry or proposal~~ (including ~~any changes thereto)~~ a copy thereof, if made in writing), and the identity of the ~~Person~~ person or group making such Company Alternative Transaction Proposal. The Company shall keep Parent informed on a reasonably prompt basis of any material developments with respect to any such Company ~~Takeover~~ Alternative Transaction Proposal ~~or inquiry or proposal, (ii) keep Parent informed in all material respects on a reasonably current basis of the status and details~~ (including any ~~change~~ material changes to the terms thereof) ~~of any~~ (and the Company ~~Takeover Proposal, and (iii) provide to Parent~~ shall as ~~soon~~ promptly as practicable after ~~receipt or delivery thereof copies of all correspondence and other written and electronic material exchanged between the Company or any~~ knowledge of the Company ~~Subsidiaries and any Person that describes any~~ of the ~~material terms or conditions~~ receipt thereof provide Parent with copies of any material written materials relating to such Company ~~Takeover Proposal~~Alternative Transaction Proposal or any material changes to the terms thereof). (ed) Nothing contained in this Section ~~5.02~~ 5.5 shall prohibit the Company from (ix) ~~issuing~~ taking and disclosing to its stockholders a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or making “stop-look-and-~~listen communication~~listen” ~~pursuant to~~ communications of the nature contemplated by Rule ~~14d-9(f) promulgated under~~ 14d-9 of the Exchange Act or ~~taking and disclosing to its shareholders positions required by Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act, in each case after the commencement of a tender offer~~ (within the meaning of Rule 14d-2 promulgated under the Exchange Act), (ii) issuing a statement in connection with a Company Takeover Proposal that does not involve the commencement of a tender offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act), so long as the statement includes no more information than would be required for a “stop-look-and-listen communication” under Rule 14d-9(f) promulgated under the Exchange Act if such provision was applicable, or (iiiy) making any disclosure to the ~~shareholders~~ stockholders of the Company if, in the good faith judgment of the Company Board (after consultation with its outside counsel) failure to so disclose would ~~reasonably be expected to~~ be inconsistent with its ~~fiduciary duties~~ obligations under applicable Law; provided, however, that any such disclosure that addresses or relates to the approval, recommendation or declaration of advisability of the Company Board with respect to this Agreement, the Combination or a Company Alternative Transaction Proposal shall be deemed to be a Company Adverse Recommendation Change unless the Company Board in ~~no event~~ connection with such communication publicly states that its recommendation with respect to this Agreement and the Combination has not changed; provided, further, that this Section 5.5(d) shall not be deemed to permit the Company or the Company Board or any committee thereof ~~take, or agree or resolve~~ to ~~take, any action prohibited by~~ effect a Company Adverse Recommendation Change except in accordance with Section ~~5.02(c~~5.5(b). (fe) For purposes of this Agreement:

Appears in 1 contract

Samples: Merger Agreement (EarthLink Holdings Corp.)

Common use of No Solicitation by the Company; Company Board Recommendation Clause in Contracts