No Solicitation by the Company; Company Recommendation. (a) Except as otherwise provided in this Agreement, 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 not, nor shall it authorize or permit any of its Affiliates or any of its or their respective directors, officers or employees or any of their respective investment bankers, accountants, attorneys or other advisors, agents or representatives (collectively, “Representatives”) to, (i) directly or indirectly solicit or initiate, or knowingly encourage, induce or facilitate, any Company Takeover Proposal or any inquiry or proposal that may reasonably be expected to lead to a Company Takeover 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. The Company shall, and shall cause its Affiliates and its and their respective Representatives to, immediately cease and cause to be terminated all existing 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 any such Person or its Representatives and immediately terminate all physical and electronic data room access previously granted to any such Person or its Representatives. Notwithstanding the foregoing, at any time prior to obtaining the Company Stockholder Approval, in response to a bona fide written Company Takeover Proposal that the Company Board determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) constitutes or is reasonably expected to result in a Superior Company Proposal, and which Company Takeover Proposal did not result from a breach of this Section 5.02(a) or the Letter Agreement, the Company, and its Representatives at the request of the Company may, subject to compliance with Section 5.02(c), (x) furnish information 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 (y) participate in discussions regarding the terms of such Company Takeover Proposal and the negotiation of such terms with, and only with, the Person or Persons making such Company Takeover Proposal (and such Person’s or Persons’ Representatives and financing sources). Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 5.02(a) by any Affiliates of the Company or any of its or their Representatives shall constitute a breach of this Section 5.02(a) by the Company. (b) Except as set forth in this Section 5.02, neither the Company Board nor any committee thereof shall (i) (A) withdraw (or modify in any manner adverse to Parent), or propose publicly to withdraw (or modify in any manner adverse to Parent), the Company Recommendation or (B) approve, recommend or declare advisable, or propose publicly to approve, recommend or declare advisable, any Company Takeover Proposal (any action in this clause (i) being referred to as a “Company Adverse Recommendation Change”) or (ii) adopt, or propose publicly to adopt, or allow the Company or any of its Affiliates to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, alliance agreement, partnership agreement or other agreement or arrangement (other than a confidentiality agreement referred to in Section 5.02(a)) relating to any Company Takeover Proposal. Notwithstanding the foregoing, at any time prior to obtaining the Company Stockholder Approval, the Company Board may (1) make a Company Adverse Recommendation Change or terminate this Agreement in accordance with Section 8.01(h), in each case following receipt of a Company Takeover Proposal after the execution of this Agreement that did not result from a breach of Section 5.02(a) or the Letter Agreement and that the Company Board determines in good faith, after consultation with outside counsel and a financial advisor of nationally recognized reputation, constitutes a Superior Company Proposal or (2) make a Company Adverse Recommendation Change in response to a Company Intervening Event, in each case referred to in the foregoing clauses (1) and (2), only if the Company Board determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) that the failure to do so would be inconsistent with its fiduciary duties under applicable Law; provided, however, that the Company shall not be entitled to exercise its rights to make a Company Adverse Recommendation Change or terminate this Agreement in accordance with Section 8.01(h) unless (i) the Company delivers to Parent a written notice (a “Company Notice”) 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 any Superior Company Proposal that is the basis of the proposed action by the Company Board and (ii) on or after the Applicable Time on the fourth Business Day following the day on which Parent received the Company Notice (it being understood that for purposes of calculating such four Business Days, the first Business Day shall be the first Business Day after the date of such receipt), the Company reaffirms in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) that (A) such Company Takeover Proposal continues to constitute a Superior Company Proposal or such Company Intervening Event remains in effect and (B) the failure to make a Company Adverse Recommendation Change as a result thereof would be inconsistent with its fiduciary duties under applicable Law (it being understood and agreed that any amendment to any material term of such Superior Company Proposal shall require a new Company Notice and a new three Business Day period (it being understood that any such three Business Day period shall be calculated in the same manner as the initial four Business Day period)). In determining whether to make a Company Adverse Recommendation Change or terminate this Agreement in accordance with Section 8.01(h), the Company Board shall take into account any changes to the terms of this Agreement proposed by Parent in response to a Company Notice or otherwise, and if requested by Parent, the Company shall engage in good faith negotiations with Parent regarding any changes to the terms of this Agreement proposed by Parent. The Company shall provide Parent with written information describing any Company Intervening Event that would reasonably be expected to entitle the Company to make a Company Adverse Recommendation Change pursuant to this Section 5.02 in reasonable detail promptly after becoming aware of it, and shall keep Parent reasonably informed of material developments with respect to such Company Intervening Event. (c) In addition to the obligations of the Company set forth in paragraphs (a) and (b) of this Section 5.02, the Company shall promptly, and in any event within 24 hours of the Company obtaining Knowledge of the receipt thereof, advise Parent 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 (including any changes thereto) and the identity of the Person making any such Company Takeover Proposal. The Company shall (i) keep Parent informed in all material respects and on a reasonably current basis of the status and details (including any material change to the terms thereof) of any Company Takeover Proposal and (ii) provide to Parent as soon as practicable after receipt or delivery thereof all drafts of agreements relating to any Company Takeover Proposal and any written proposals containing any material terms of a Company Takeover Proposal or a counterproposal to a Company Takeover Proposal, in each case exchanged between any of the Company or any of its Subsidiaries or any of their Representatives, on the one hand, and the Person making any such Company Takeover Proposal or any of its Affiliates or any of their Representatives, on the other hand. If Parent requests, the information required to be provided in clause (i) above shall be provided on a daily basis pursuant to a phone call between senior representatives of outside counsel or financial advisors of the parties to be held at mutually agreeable times; provided, however, that such phone calls need not be longer than 30 minutes on any given day; and provided further that nothing in this sentence shall in any way expand or otherwise change the Company’s obligations contained in clause (i) above. (d) Nothing contained in this Section 5.02 shall prohibit the Company from complying with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act; 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(b). (e) For purposes of this Agreement:
Appears in 3 contracts
Samples: Merger Agreement (Martin Marietta Materials Inc), Merger Agreement (Martin Marietta Materials Inc), Merger Agreement (Texas Industries Inc)
No Solicitation by the Company; Company Recommendation. (a) Except as otherwise provided in permitted by this AgreementSection 6.02, from the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with its termsTime, the Company shall not, nor and shall it authorize or permit any of cause its controlled Affiliates or any of and its or and their respective directorsdirectors and officers not to, officers and shall use its reasonable best efforts to cause its other Representatives not to, directly or employees or any of their respective investment bankers, accountants, attorneys or other advisors, agents or representatives (collectively, “Representatives”) toindirectly, (i) directly or indirectly solicit or initiate, or knowingly encourage, induce or facilitate, any Company Takeover Proposal inquiry, proposal or any inquiry offer that constitutes or proposal that may reasonably be expected to lead to a Company Takeover Proposal, or (ii) directly furnish to any Person (other than Parent, Merger Sub or indirectly their respective Representatives) any non-public information relating to the Company or any of its Subsidiaries, or afford to any Person (other than Parent, Merger Sub or their respective Representatives) access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries, in any such case with the intent of encouraging, inducing, facilitating or assisting the making, submission or announcement of any inquiry, proposal or offer that constitutes or may reasonably be expected to lead to a Company Takeover Proposal, (iii) participate or engage 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 inquiry, proposal or any inquiry offer that constitutes or proposal that may reasonably be expected to lead to a Company Takeover ProposalProposal or (iv) resolve or agree to do any of the foregoing. The Company shall, and shall cause its controlled Affiliates and its and their respective directors and officers to, and shall use its reasonable best efforts to cause its other Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Person conducted heretofore with respect to any Company Takeover Proposal inquiry, proposal or any inquiry offer that constitutes 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 to any such Person or its Representatives and immediately terminate all physical and electronic data room access previously granted to any such Person or its Representatives. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 6.02(a) by any controlled Affiliates of the Company or any of its or their Representatives shall constitute a breach of this Section 6.02(a) by the Company.
(b) Notwithstanding the foregoing, at any time prior to obtaining receipt of the Company Stockholder Approval, in response to a bona fide written Company Takeover Proposal that the Company Board determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) constitutes or is reasonably expected to result in a Superior Company Proposal, and which Company Takeover Proposal did not result from a breach of this Section 5.02(a) or the Letter Agreement6.02, the Company, and its Representatives at the request of the Company Company, may, subject to compliance with Section 5.02(c6.02(e), (xA) furnish information 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), ) (an “Acceptable Company Confidentiality Agreement”) and (yB) participate in discussions regarding the terms of such Company Takeover Proposal and the negotiation of such terms with, and only with, the Person or Persons making such Company Takeover Proposal (and such Person’s or Persons’ Representatives and financing sources). Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 5.02(a) by any Affiliates of the Company or any of its or their Representatives shall constitute a breach of this Section 5.02(a) by the Company.
(bc) Except as set forth in this Section 5.026.02, neither the Company Board nor any committee thereof shall (i) (A) withdraw (or modify or qualify in any manner adverse to Parent), or propose publicly to withdraw (or modify or qualify in any manner adverse to Parent), the Company Recommendation Recommendation, (B) if any Company Takeover Proposal structured as a tender or exchange offer is commenced, fail to recommend against acceptance of such tender or exchange offer by the Company’s stockholders within ten Business Days of commencement thereof pursuant to Rule 14d-2 of the Exchange Act or (BC) approve, recommend or declare advisable, or propose publicly to approve, recommend or declare advisable, any Company Takeover Proposal (any action in this clause (i) being referred to as a “Company Adverse Recommendation Change”) or (ii) adopt, or propose publicly to adopt, or allow the Company or any of its controlled Affiliates to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, alliance agreement, partnership agreement or other agreement or arrangement (other than a confidentiality agreement referred to in Section 5.02(a)an Acceptable Company Confidentiality Agreement) relating related to any Company Takeover Proposal. .
(d) Notwithstanding the foregoing, at any time prior to obtaining receipt of the Company Stockholder Approval, the Company Board may (1) make a Company Adverse Recommendation Change or terminate this Agreement in accordance with Section 8.01(h), in each case (i) following receipt of a Company Takeover Proposal after the execution of this Agreement that did not result from a breach of Section 5.02(a6.02(a) or the Letter Agreement and that the Company Board determines in good faith, after consultation with outside counsel and a financial advisor of nationally recognized reputation, constitutes a Superior Company Proposal or (2ii) make a Company Adverse Recommendation Change in response to a Company Intervening Event, in each case referred to in the foregoing clauses (1i) and (2ii), only if the Company Board determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputationcounsel) that the failure to do so would be inconsistent with its fiduciary duties under applicable Law; provided, however, that the Company shall not be entitled to exercise its rights to make a Company Adverse Recommendation Change or terminate this Agreement in accordance with Section 8.01(h) unless (iA) the Company delivers to Parent a written notice (a “Company NoticeNotice of Recommendation Change”) at least four Business Days prior to taking such action 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 identity of any the Person making the Superior Company Proposal that is the basis of the proposed action by the Company Board and the terms and conditions thereof (iiand copies of all definitive documentation and other relevant proposed transaction documentation received from such Person or such Person’s Affiliates or Representatives in respect thereof), (B) on or after the Applicable Time Company has negotiated, and has used its reasonable best efforts to cause 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 such bona fide adjustments to the terms and conditions of this Agreement as would obviate the basis for a Company Adverse Recommendation Change and (C) on the fourth Business Day following the day on which receipt by Parent received of the Company Notice (it being understood that for purposes of calculating such four Business Days, the first Business Day shall be the first Business Day after the date of such receipt)Recommendation Change, the Company reaffirms in good faith that (1) after consultation with outside counsel and a financial advisor of nationally recognized reputation) that (A) , such Company Takeover Proposal continues to constitute a Superior Company Proposal or such Company Intervening Event remains in effect and (B2) after consultation with outside counsel, the failure to make a Company Adverse Recommendation Change as a result thereof would be inconsistent with its fiduciary duties under applicable Law (it being understood and agreed that any amendment to any material term of such Superior Company Proposal shall require a new Company Notice of Recommendation Change and a new three Business Day period (it being understood that any such three Business Day period shall be calculated in the same manner as the initial four Business Day period)). In determining whether to make a Company Adverse Recommendation Change or terminate this Agreement in accordance with Section 8.01(h)Change, the Company Board shall take into account any changes to the terms of this Agreement proposed by Parent in response to a Company Notice of Recommendation Change or otherwise. Notwithstanding anything to the contrary contained in this Agreement, and if requested by Parent, neither the Company Board nor any committee thereof shall engage in good faith negotiations with Parent regarding any changes to the terms of this Agreement proposed by Parent. The Company shall provide Parent with written information describing any Company Intervening Event that would reasonably be expected to entitle the Company entitled to make a Company Adverse Recommendation Change pursuant to this Section 5.02 6.02(d) with respect to a Company Intervening Event unless the Company has provided Parent with written information describing such Company Intervening Event in reasonable detail promptly after becoming aware of it, and the Company shall keep Parent reasonably informed of material developments with respect to such Company Intervening Event.
(ce) In addition to the obligations of the Company set forth in paragraphs (a) and (bc) of this Section 5.026.02, the Company shall promptly, and in any event within 24 hours of the Company obtaining Knowledge knowledge of the receipt thereof, advise Parent in writing of any Company Takeover Proposal inquiry, proposal or any inquiry offer that constitutes 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 (including any changes theretoand copies of all definitive documentation and other relevant proposed transaction documentation received from such Person or such Person’s Affiliates or Representatives in respect thereof) and the identity of the Person making any such Company Takeover Proposal. The Company shall (i) keep Parent informed in all material respects and on a reasonably current basis of the status and details (including any material change to the terms thereof) of any Company Takeover Proposal and (ii) provide to Parent as soon as practicable after receipt or delivery thereof all drafts of agreements relating to any Company Takeover Proposal and any written proposals containing any material terms of a Company Takeover Proposal or a counterproposal to a Company Takeover Proposal, in each case exchanged between any of the Company or any of its Subsidiaries or any of its or their Representatives, on the one hand, and the Person making any such Company Takeover Proposal or any of its Affiliates or any of its or their Representatives, on the other hand. If Parent requests, the information required to be provided in clause (i) above shall be provided on a daily basis pursuant to a phone call between senior representatives of outside counsel or financial advisors of the parties to be held at mutually agreeable times; provided, however, that such phone calls need not be longer than 30 minutes on any given day; and provided further that nothing in this sentence shall in any way expand or otherwise change the Company’s obligations contained in clause (i) above.
(df) Nothing contained in this Section 5.02 6.02 shall prohibit the Company from complying with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act or making a customary “stop, look and listen” communication to the Company’s stockholders pursuant to Rule 14d-9(f) promulgated under the Exchange Act; 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(b6.02(c).
(eg) For purposes of this Agreement:
Appears in 2 contracts
Samples: Merger Agreement (IsoPlexis Corp), Merger Agreement (Berkeley Lights, Inc.)
No Solicitation by the Company; Company Recommendation. (a) Except as otherwise provided in this Agreement, 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, nor shall will it authorize or permit any of its Affiliates Subsidiaries or any of its or their respective directors, officers or employees or any of their respective investment bankers, accountants, attorneys or other advisors, agents or representatives (collectively, “Representatives”) to, directly or indirectly (i) directly or indirectly solicit or initiate, or knowingly encourage, induce induce, facilitate or facilitatecooperate with, any Company Takeover Proposal or any inquiry or proposal that may would reasonably be expected to lead to a Company Takeover Proposal, or (ii) directly or indirectly participate in any substantive discussions or negotiations with any Person regarding, or furnish to any Person any non-public information relating to the Company or the Company Subsidiaries 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. The Company shallwill, and shall will cause its Affiliates the Company Subsidiaries and direct its and their respective Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Person conducted heretofore prior to the execution of this Agreement 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 to any such Person or its Representatives and immediately terminate all physical and electronic data room access previously granted to any such Person or its Representatives. Notwithstanding the foregoing, at any time prior to obtaining the Company Stockholder Approval, in response to a bona fide written Company Takeover Proposal that the Company Board determines in good faith (after consultation with its outside counsel and a financial advisor of nationally recognized reputationadvisor) is bona fide and constitutes or is reasonably expected to result in or lead to a Superior Company Proposal, and which Company Takeover Proposal did not result from a breach of this Section 5.02(a) or the Letter Agreement), the Company, and the Company Subsidiaries and its and their respective Representatives at the request of the Company may, subject to compliance with Section 5.02(c)) in all material respects, (x) provide access to its and the Company Subsidiaries’ properties, books and records and furnish information with respect to the Company and the Company Subsidiaries to the Person making such Company Takeover Proposal (and its Representatives) (provided the Company provides to Parent any material non-public information concerning the Company that all is provided to such Person (and its Representatives) to the extent such information has not 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 an Acceptable Confidentiality Agreement with such Person (provided that the Company promptly provides to Parent a customary confidentiality agreement not less restrictive copy of such Person than the Acceptable Confidentiality Agreement (other than with respect to “standstill” provisionsAgreement), and (y) participate in discussions regarding the terms of such Company Takeover Proposal and the negotiation of such terms with, and only with, the Person or Persons making such Company Takeover Proposal (and such Person’s or Persons’ Representatives and financing sources). Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 5.02(a) by any Affiliates of the Company or any of its or their Representatives shall constitute a breach of this Section 5.02(a) by the Company.
(b) Except as set forth in this Section 5.02, neither the Company Board nor any committee thereof shall will (i) (A) withhold or withdraw (or modify in any manner adverse to Parent), or propose publicly to withhold or withdraw (or modify in any manner adverse to Parent), the Company Recommendation or (B) approve, recommend or declare advisable, or propose publicly to approve, recommend or declare advisable, any Company Takeover Proposal (any action in this clause (i) being referred to as a “Company Adverse Recommendation Change”) or (ii) adopt, or propose publicly to adopt, or allow the Company or any of its Affiliates the Company Subsidiaries to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, alliance agreement, partnership agreement or other agreement similar Contract or arrangement providing for any Company Takeover Proposal (other than a confidentiality agreement referred an Acceptable Confidentiality Agreement pursuant to in Section 5.02(a)) relating to any Company Takeover Proposal). Notwithstanding the foregoingforegoing or anything else to the contrary in this Agreement, at any time prior to obtaining the Company Stockholder Approval, the Company Board may (1I) make a Company Adverse Recommendation Change or terminate this Agreement in accordance with Section 8.01(h8.01(g), in each case following receipt of a Company Takeover Proposal after the execution of this Agreement that did not result from a breach of Section 5.02(a) or the Letter Agreement and that the Company Board determines in good faith, after consultation with its outside counsel and a financial advisor of nationally recognized reputationadvisor, constitutes would, if consummated, constitute a Superior Company Proposal after giving effect to all of the adjustments to the terms of this Agreement that have been offered in writing by Parent in accordance with this Section 5.02(b) or (2II) make a Company Adverse Recommendation Change in response to a Company Intervening Event, in each case referred to in the foregoing clauses (1I) and (2II), only if the Company Board determines in good faith (after consultation with its outside counsel and a financial advisor of nationally recognized reputationadvisor) that the failure to do so would be inconsistent with its fiduciary duties under applicable Law; provided, however, that the Company shall will not be entitled to exercise its rights to make a Company Adverse Recommendation Change or terminate this Agreement in accordance with Section 8.01(h8.01(g) unless (ix) the Company delivers to Parent a written notice (a “Company Notice”) advising Parent that the Company Board intends to take such action and specifying the reasons therefor, including including, in the case of a Company Intervening Event, summarizing such Company Intervening Event and, in the case of a Superior Company Proposal, (A) the identity of the party making such Superior Proposal, (B) the material terms and conditions of any the Superior Company Proposal that is the basis of the proposed action by the Company Board and (iiC) on a copy of the most current version of any proposed definitive agreement(s) with respect to such Superior Proposal and (y) at or after the Applicable Time 5:00 p.m., New York City time, on the fourth Business Day following the day on which Parent received the Company delivered the Company Notice (it being understood that for purposes of calculating such four Business Days, the first Business Day shall will be the first Business Day after the date of such receiptdelivery), the Company reaffirms in good faith (after consultation with its outside counsel and a financial advisor of nationally recognized reputationadvisor) that (A) such Company Takeover Proposal continues to constitute a Superior Company Proposal or such Company Intervening Event remains in effect effect, as the case may be, and (B) the failure to make a Company Adverse Recommendation Change as a result thereof would be inconsistent with its fiduciary duties under applicable Law (it being understood and agreed that any change in the financial terms or any other material amendment to any material term the terms and conditions of such Superior Company Proposal shall will require a new Company Notice and a new three two Business Day period (it being understood that any such three two Business Day period shall will be calculated in the same manner as the initial four Business Day period)). In determining whether to make a Company Adverse Recommendation Change or terminate this Agreement in accordance with Section 8.01(h8.01(g), the Company Board shall will take into account any changes to the terms of this Agreement proposed in writing by Parent by 5:00 p.m., New York City time, on the last Business Day of the applicable four Business Day period or two Business Day period, as applicable, in response to a Company Notice or otherwiseNotice, and if requested by Parent, the Company shall will, and will cause its Representatives to, engage in good faith negotiations with Parent regarding any changes and its Representatives to make such adjustments in the terms and conditions of this Agreement proposed by Parentso that such Company Takeover Proposal would cease to constitute a Superior Proposal. The Company shall provide Parent with written information describing any Company Intervening Event that would reasonably be expected to entitle the Company to make a Company Adverse Recommendation Change pursuant to this Section 5.02 in reasonable detail promptly after becoming aware of it, and shall will keep Parent reasonably informed of material developments with respect to such any Company Intervening Event.
(c) In addition to the obligations of the Company set forth in paragraphs (a) and (b) of this Section 5.02, the Company shall will promptly, and in any event within 24 hours of the Company obtaining Knowledge of the receipt thereof, advise Parent in writing of any Company Takeover Proposal or any inquiry or proposal that may would reasonably be expected to lead to a Company Takeover Proposal, the material terms and conditions of any such Company Takeover Proposal (including any changes thereto) and the identity of the Person making any such Company Takeover Proposal. The Company shall will (i) keep Parent reasonably informed in all material respects and on a reasonably current basis of the status and details developments (including any material change to the terms thereof) of any Company Takeover Proposal and (ii) provide to Parent as soon as practicable within 24 hours after receipt or delivery thereof all drafts of agreements relating to any Company Takeover Proposal and any written proposals containing any material terms of a Company Takeover Proposal or a counterproposal to a Company Takeover ProposalProposal (which copies may, at the Company’s election, be redacted to exclude, if applicable, fee and market flex provisions as may be contained in any financing-related commitment letters), in each case exchanged between any of the Company or any of its the Company Subsidiaries or any of their Representatives, on the one hand, and the Person making any such Company Takeover Proposal or any of its Affiliates or any of their Representatives, on the other hand. If Parent requests, the information required to be provided in clause (i) above shall be provided on a daily basis pursuant to a phone call between senior representatives of outside counsel or financial advisors of the parties to be held at mutually agreeable times; provided, however, that such phone calls need not be longer than 30 minutes on any given day; and provided further that nothing in this sentence shall in any way expand or otherwise change the Company’s obligations contained in clause (i) above.
(d) Nothing contained in this Section 5.02 shall will prohibit the Company from (i) complying with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange ActAct (including making any “stop-look-and-listen” communication to the Company’s stockholders pursuant to Rule 14d-9(f)) or (ii) making any disclosure to the Company’s stockholders if the Company Board determines in good faith, after consultation with its outside counsel, that the failure to make such disclosure would be inconsistent with its fiduciary duties or applicable Law; provided, however, that (x) in no event shall will the Company or the Company Board or any committee thereof take, or agree or resolve to take, any action prohibited by Section 5.02(b) and (y) any public disclosure made by or on behalf of the Company that refers to a Company Takeover Proposal will be deemed to be a Company Adverse Recommendation Change (including for purposes of Section 8.01(e)) unless the Company Board expressly reaffirms the Company Recommendation in such disclosure.
(e) For purposes of this Agreement:
Appears in 1 contract
No Solicitation by the Company; Company Recommendation. (a) Except as otherwise provided in this Agreement, from the date of this Agreement until the Effective Acceptance Time or, if earlier, the termination of this Agreement in accordance with its terms, the Company shall not, nor shall it authorize or permit any of its Affiliates or any of its or and their respective directors, officers or employees or any of their respective investment bankers, accountants, attorneys or other advisors, agents or representatives (collectively, “Representatives”) to, (i) directly or indirectly solicit or initiate, or knowingly encourage, induce or facilitate, facilitate any Company Takeover Proposal or any inquiry or proposal that may reasonably be expected to lead to a Company Takeover 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 ProposalProposal or (iii) waive, terminate, modify or fail to enforce any provision of any confidentiality or “standstill” or similar obligation of any Person with respect to the Company or any Company Subsidiary; provided, however, that, without limiting the Company’s obligations under this Section 5.02, the Company may take the actions referred in this clause (iii) to the extent necessary to permit a Company Takeover Proposal to be made to the extent the Company Board determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) that the failure to take such action with respect to such Company Takeover Proposal would reasonably be likely to be inconsistent with the exercise by the Company Board of its fiduciary duties under applicable Law (and the Company shall inform Parent, in writing, of its intent to take such actions in accordance with the foregoing no less than three Business Days prior to taking such action). The Company (A) shall, and shall cause its Affiliates and its and their respective Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Person conducted heretofore with respect to any Company Takeover Proposal 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 any such Person or its Representatives and immediately terminate all physical and electronic data room access previously granted to any such Person or its RepresentativesRepresentatives and (B) shall immediately take all steps necessary to terminate any approval under any confidentiality or “standstill” or similar provision that may have been heretofore given by it or any Company Subsidiary under any such provisions authorizing any Person to make a Company Takeover Proposal. Notwithstanding the foregoing, at any time prior to obtaining the Company Stockholder ApprovalAcceptance Time , in response to a bona fide written Company Takeover Proposal that the Company Board determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) constitutes or is reasonably expected to result in a Superior Company Proposal, and which Company Takeover Proposal was not solicited after the date of this Agreement and was made after the date of this Agreement and did not otherwise result from a breach of this Section 5.02(a) or the Letter Agreement), the Company, and its Representatives at the request of the Company may, subject to compliance with Section 5.02(c), (x) furnish information 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)Agreement, and (y) participate in discussions regarding the terms of such Company Takeover Proposal and the negotiation of such terms with, and only with, the Person or Persons making such Company Takeover Proposal (and such Person’s or Persons’ Representatives Representatives); provided, however, the Company may only take the actions described in clause (x) and financing sources)(y) of this sentence if the Company Board determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) that the failure to take such action with respect to such Company Takeover Proposal would reasonably be likely to be inconsistent with the exercise by the Company Board of its fiduciary duties under applicable Law. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 5.02(a) by any Affiliates Representative of the Company or any of its or their Representatives Affiliates shall constitute a breach of this Section 5.02(a) by the Company.
(b) Except as set forth in this Section 5.02below, neither the Company Board nor any committee thereof shall (i) (A) withdraw (or modify in any manner adverse to Parent), or propose publicly to withdraw (or modify in any manner adverse to Parent), the Company Recommendation or (B) approve, recommend or declare advisable, or propose publicly to approve, recommend or declare advisable, any Company Takeover Proposal (any action in this clause (i) being referred to as a “Company Adverse Recommendation Change”) or (ii) adoptapprove, recommend or declare advisable, or propose publicly to adoptapprove, recommend or declare advisable, or allow the Company or any of its Affiliates to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, alliance agreement, partnership agreement or other agreement or arrangement (other than a confidentiality agreement referred to in Section 5.02(a)) relating constituting or related to, or that is intended to or would reasonably be expected to lead to, any Company 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 Pending Offer or 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. Notwithstanding the foregoing, at any time prior to obtaining the Company Stockholder ApprovalAcceptance Time, the Company Board may (1) make a Company Adverse Recommendation Change or terminate this Agreement in accordance with Section 8.01(h), in each case (x) following receipt of a Company Takeover Proposal after the execution of this Agreement that did not result from a breach of Section 5.02(a) or the Letter Agreement and that the Company Board determines in good faith, after consultation with outside counsel and a financial advisor of nationally recognized reputation, reputation constitutes a Superior Company Proposal or (2y) make a Company Adverse Recommendation Change solely in response to any material event, development, circumstance, occurrence or change in circumstances or facts with respect to the Company, not related to a Company Takeover Proposal, and that first occurred following the execution of this Agreement that was neither known to the Company Board nor reasonably foreseeable as of the date of this Agreement (a “Company Intervening Event”), in each case referred to in the foregoing clauses (1x) and (2y), only if the Company Board determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) that the failure to do so would be inconsistent with its fiduciary duties under applicable Law; provided, however, that the Company shall not be entitled to exercise its rights right to make a Company Adverse Recommendation Change or terminate this Agreement in accordance with Section 8.01(h) unless (i) the Company delivers to Parent a written notice (a “Company NoticeNotice of Recommendation Change”) 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 any Superior Company Proposal that is the basis of the proposed action by the Company Board and (ii) on or after the Applicable Time on the fourth fifth Business Day following the day on which receipt by Parent received of the Company Notice (it being understood that for purposes of calculating such four Business Days, the first Business Day shall be the first Business Day after the date of such receipt)Recommendation Change, the Company reaffirms in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) that (A) such Company Takeover Proposal continues to constitute a Superior Company Proposal or such Company Intervening Event remains in effect and (B) the failure to make a Company Adverse Recommendation Change as a result thereof would be inconsistent is required in order for the Company Board to comply with its fiduciary duties obligations under applicable Law (it being understood and agreed that any amendment to any material term of such Superior Company Proposal shall require a new Company Notice of Recommendation Change and a new three Business Day period (it being understood that any such three Business Day period shall be calculated in the same manner as the initial four Business five Business-Day period)). In determining whether to make a Company Adverse Recommendation Change or terminate this Agreement in accordance with Section 8.01(h)Change, the Company Board shall take into account any changes to the terms of the Pending Offer or this Agreement proposed by Parent in response to a Company Notice of Recommendation Change or otherwise, and if requested by Parent, the Company shall engage in good faith negotiations with Parent regarding any changes to the terms of the Pending Offer or this Agreement proposed by Parent. The Company shall provide Parent with written information describing any Company Intervening Event that would reasonably be expected Notwithstanding anything to entitle the contrary contained in this Agreement, neither the Company Board nor any committee thereof shall be entitled to make a Company Adverse Recommendation Change pursuant to this Section 5.02 5.02(b) with respect to a Company Intervening Event, unless the Company has provided Parent with written information describing such Company Intervening Event in reasonable detail promptly after becoming aware of it, and shall keep keeps Parent reasonably informed of material developments with respect to such Company Intervening Event.
(c) In addition to the obligations of the Company set forth in paragraphs (a) and (b) of this Section 5.02, the Company shall promptly, and in any event within 24 hours of the Company obtaining Knowledge of the receipt thereof, advise Parent 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 (including any changes thereto) and the identity of the Person person making any such Company Takeover Proposal. The Company shall (i) keep Parent informed in all material respects and on a reasonably current basis of the status and details (including any material change to the terms thereof) of any Company Takeover Proposal Proposal, and (ii) provide to Parent as soon as practicable after receipt or delivery thereof copies of all correspondence and other written material (including drafts of agreements relating to any Company Takeover Proposal and any written proposals containing any material terms of a Company Takeover Proposal or a counterproposal to a Company Takeover Proposal, in each case agreements) exchanged between any of the Company or any of its Subsidiaries or any of their RepresentativesSubsidiaries, on the one hand, and the Person making any such Company Takeover Proposal or any of its Affiliates or any of their RepresentativesProposal, on the other hand. If Parent requests, the information required to be provided in clause (i) above shall be provided on a daily basis pursuant to a phone call between senior representatives of outside counsel or financial advisors that describes any of the parties to be held at mutually agreeable times; provided, however, that such phone calls need not be longer than 30 minutes on terms or conditions of any given day; and provided further that nothing in this sentence shall in any way expand or otherwise change the Company’s obligations contained in clause (i) aboveCompany Takeover Proposal.
(d) Nothing contained in this Section 5.02 shall prohibit the Company from complying with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act; 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(b).
(e) For purposes of this Agreement:
Appears in 1 contract
No Solicitation by the Company; Company Recommendation. (a) Except as otherwise provided in expressly permitted by this Section 6.03, the Company shall, and shall cause each of the Company Subsidiaries and its and the Company Subsidiaries’ officers and directors (and shall instruct and use its reasonable best efforts to cause its and their respective employees, consultants, legal counsel, financial advisors and agents and other representatives (such officers, directors employees, consultants, legal counsel, financial advisors and agents and other representatives, collectively, “Representatives”)), to: (i) following execution of this Agreement, from immediately cease any existing solicitations, knowing encouragement, knowing facilitation, discussions or negotiations with any Persons that may be ongoing with respect to any inquiry, indication of interest, proposal, discussion, offer or request that constitutes or could reasonably be expected to lead to, or result in, an Alternative Proposal (an “Inquiry”) and immediately terminate any such Person’s access to any physical or electronic data rooms ; (ii) (A) 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 this Agreement all confidential information previously furnished to any Person (other than Parent or its Representatives) that has, made or indicated an intention to make an Inquiry and (B) until the earlier of the Effective Time oror the date, if earlierany, the termination of on which this Agreement is terminated pursuant to Section 9.01, enforce the provisions of any existing confidentiality or non-disclosure agreement entered into with respect to any Inquiry (except with respect to immaterial breaches thereof); provided that the Company shall be permitted to grant waivers of, and not to enforce, any standstill provision to the extent necessary to permit the counterparty thereto to make an Alternative Proposal directly to the Company Board in accordance with the terms of this Section 6.03; (iii) from and after the date hereof until the earlier of the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 9.01, subject to the other provisions of this Section 6.03, not, directly or indirectly, (A) solicit, initiate or knowingly encourage or facilitate any Inquiry or an Alternative Proposal, (B) furnish non-public information to or afford access to the business, employees, officers, Contracts, properties, assets, books and records of the Company and the Company Subsidiaries to any Person in connection with an Inquiry or an Alternative Proposal or (C) enter into, continue or otherwise participate in any discussions or negotiations with any Person with respect to an Inquiry or an Alternative Proposal (other than (x) informing any Person that has made or, to the Knowledge of the Company, is making any Inquiry with respect to, or is considering making, an Alternative Proposal, of the existence of the provisions of this Section 6.03(a) or (y) contacting any Person that makes an Inquiry or Alternative Proposal after the date hereof and is party to a confidentiality agreement in effect between such Person and Company as of the date hereof that by its termsterms would prohibit compliance by the Company with any of the provisions of Section 6.01(c) solely to (1) request that such confidentiality agreement be promptly waived to the extent required to permit the Company to comply with its obligations hereunder and (2) inform such Person that unless such confidentiality agreement is waived, the Company is unable to consider or engage in any discussions with respect to such Inquiry or Alternative Proposal; and (iv) until the earlier of the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 9.01, subject to the other provisions of this Section 6.03, not, directly or indirectly, and the Company Board and each committee of the Company Board shall not, nor shall it authorize (A) approve, agree to, accept, endorse, recommend, declare advisable or permit submit to a vote of its stockholders any Alternative Proposal, (B) fail to make, or withdraw, qualify, withhold, modify or amend, in a manner adverse to Parent and Merger Sub, the Company Recommendation or fail to include the Company Recommendation in the Schedule 14D-9, (C) take any action to exempt any Person from the provisions of Section 203 of the DGCL or any other applicable state takeover statute, (D) make any public statement, filing or release adverse to the Company Recommendation, (E) fail to recommend, in a Solicitation/Recommendation Statement on Schedule 14D-9, against any Alternative Proposal subject to Regulation 14D under the Exchange Act within ten (10) days after the commencement of such Alternative Proposal, (F) approve, adopt or recommend any Alternative Proposal, or propose publicly to approve, adopt or recommend, any Alternative Proposal, (any of the foregoing clauses (A) through (F) in this subsection (iv), an “Adverse Recommendation Change”), (G) fail to publicly reaffirm the Company Recommendation within the later of (x) three (3) Business Days after Parent so requests in writing and (y) seven (7) Business Days following the commencement by a third party of any tender offer or exchange offer related to the Company Common Stock, (H) enter into any letter of intent, agreement in principle, term sheet, merger agreement, acquisition agreement, option agreement or other similar Contract (except for Acceptable Confidentiality Agreements) relating to or providing for any Alternative Proposal or a potential Alternative Proposal or requiring the Company to abandon, terminate, materially delay or fail to consummate, or that would otherwise materially impede or interfere with, the Merger, the Offer or any of the other transactions contemplated hereby (an “Alternative Acquisition Agreement”) or (I) agree or resolve to take any action set forth in the foregoing clauses (A) through (H). It is agreed that any Willful Breach of the restrictions set forth in this Section 6.03(a) by any Affiliate of the Company or any Representative of the Company or any of its Affiliates shall be deemed a breach of this Section 6.03(a) by the Company.
(b) Notwithstanding anything to the contrary in Section 6.03(a), if at any time following the date hereof and prior to the Acceptance Time the Company or any of its or their respective directors, officers or employees Company Subsidiary or any of their respective investment bankersRepresentatives receives a bona fide unsolicited written Alternative Proposal (which Alternative Proposal was first made after the date hereof and did not result from a breach of this Section 6.03), accountantsthe Company and its Representatives may, attorneys or other advisorsprior to (but not after) the Acceptance Time, agents or representatives (collectivelysubject to providing Parent prior written notice of such Alternative Proposal in accordance with Section 6.03(c), “Representatives”) to, take the actions set forth in subsections (i) directly and (ii) of this Section 6.03(b) if the Company Board has determined in good faith (after consultation with its financial advisors and outside legal counsel), that such Alternative Proposal constitutes or indirectly solicit or initiate, or knowingly encourage, induce or facilitate, any Company Takeover Proposal or any inquiry or proposal that may 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 Proposaland the Company Subsidiaries to the Person who made such Alternative Proposal and such Person’s Representatives pursuant to (but only pursuant to) one or more Acceptable Confidentiality Agreements (provided that the Company has substantially concurrently or previously furnished, made available or provided access to Parent to any such non-public information (and in any event within twenty-four (24) hours thereafter) does so); and (ii) directly enter into, or indirectly otherwise participate in any discussions or negotiations with any Person regarding, such Alternative Proposal pursuant to (but only pursuant to) one or furnish to more Acceptable Confidentiality Agreements.
(c) Promptly (but in no event more than twenty-four (24) hours) following receipt of any Person any information with respect toInquiry that constitutes, 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 could reasonably be expected to lead to a to, any Alternative Proposal from and after the date of this Agreement, the Company Takeover Proposal. The Company shallshall advise Parent of the receipt of such Inquiry, and the terms and conditions of any such Alternative Proposal (including, in each case, the identity of the Person making any such Inquiry or Alternative Proposal), and the Company shall cause its Affiliates as promptly as practicable provide to Parent: (i) a copy of such Inquiry, Alternative Proposal and its all related material documentation, if in writing; or (ii) a written summary of the material terms of such Alternative Proposal, if oral. With respect to any Alternative Proposal described in the immediately preceding sentence the Company shall keep Parent reasonably informed on a current basis (but in any event within forty-eight (48) hours of any such event) of (x) changes or modifications to the terms of any such Alternative Proposal and their respective Representatives to, immediately cease and cause (y) any communications from such Person to be terminated all existing discussions the Company or negotiations with any from the Company to such Person conducted heretofore with respect to any Company Takeover Proposal changes or any inquiry or proposal that may reasonably be expected modifications to lead to a Company Takeover Proposal, request the prompt return or destruction terms of all confidential information previously furnished any such Person or its Representatives and immediately terminate all physical and electronic data room access previously granted Alternative Proposal.
(d) Notwithstanding anything herein to any such Person or its Representatives. Notwithstanding the foregoingcontrary, at any time prior to obtaining the Acceptance Time, (i) if and only if (A) the Company Stockholder Approval, in response to receives a bona fide unsolicited written Company Takeover Alternative Proposal that the Company Board determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) constitutes or is reasonably expected to result in a Superior Company Proposal, and which Company Takeover Alternative Proposal did not result from a breach of this Section 5.02(a6.03) or the Letter Agreement, the Company, and its Representatives at the request of the Company may, subject to compliance with Section 5.02(c), (x) furnish information 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 (y) participate in discussions regarding the terms of such Company Takeover Proposal and the negotiation of such terms with, and only with, the Person or Persons making such Company Takeover Proposal (and such Person’s or Persons’ Representatives and financing sources). Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 5.02(a) by any Affiliates of the Company or any of its or their Representatives shall constitute a breach of this Section 5.02(a) by the Company.
(b) Except as set forth in this Section 5.02, neither the Company Board nor any committee thereof shall (i) (A) withdraw (or modify in any manner adverse to Parent), or propose publicly to withdraw (or modify in any manner adverse to Parent), the Company Recommendation or (B) approve, recommend or declare advisable, or propose publicly to approve, recommend or declare advisable, any Company Takeover Proposal (any action in this clause (i) being referred to as a “Company Adverse Recommendation Change”) or (ii) adopt, or propose publicly to adopt, or allow the Company or any of its Affiliates to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, alliance agreement, partnership agreement or other agreement or arrangement (other than a confidentiality agreement referred to in Section 5.02(a)) relating to any Company Takeover Proposal. Notwithstanding the foregoing, at any time prior to obtaining the Company Stockholder Approval, the Company Board may (1) make a Company Adverse Recommendation Change or terminate this Agreement in accordance with Section 8.01(h), in each case following receipt of a Company Takeover Proposal after the execution of this Agreement that did not result from a breach of Section 5.02(a) or the Letter Agreement and that the Company Board determines in good faith, after consultation with its outside legal counsel and a financial advisor of nationally recognized reputationadvisors, constitutes a Superior Company Proposal or (2) make a Company Adverse Recommendation Change in response to a Company Intervening Event, in each case referred to in the foregoing clauses (1) and (2), only if B) the Company Board determines in good faith (faith, after consultation with its outside counsel and a financial advisor of nationally recognized reputation) legal counsel, that the failure to do so take such action would be inconsistent with its the directors’ exercise of their fiduciary duties under applicable Law, then the Company Board may make an Adverse Recommendation Change and terminate this Agreement pursuant to Section 9.01(d) to enter into a definitive agreement with respect to such Superior Proposal; and (ii) if and only if in response to an Intervening Event, the Company Board has determined in good faith, after consultation with its outside legal counsel and financial advisors, that the failure to take such action would be inconsistent with the directors’ exercise of their fiduciary duties under applicable Law, then the Company Board may make an Adverse Recommendation Change contemplated by clauses (B), (D), (G) or (I) of the definition of Adverse Recommendation Change; provided, however, that the Company shall Board may not be entitled to exercise its rights to make a Company any Adverse Recommendation Change or terminate this Agreement in accordance with pursuant to this Section 8.01(h6.03(d) unless unless:
(i1) the Company delivers shall have first provided prior written notice to Parent a written (which notice shall not constitute an Adverse Recommendation Change or termination of this Agreement) (a the “Company Notice”), at least four (4) advising Parent that Business Days in advance of the Company’s or the Company Board intends Board’s intention to take such any action and specifying permitted under this Section 6.03(d), which Notice shall, if applicable, specify the reasons thereforfor the proposed Adverse Recommendation Change and, including (x) in the case of a Superior Company Proposal, the terms and conditions of any Superior Company Proposal that is the basis of the proposed action by the Company Board and (ii) on or after the Applicable Time on the fourth Business Day following the day on which Parent received the Company Notice (it being understood that for purposes of calculating such four Business Days, the first Business Day shall be the first Business Day after the date of such receipt), the Company reaffirms in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) that (A) such Company Takeover Proposal continues to constitute a Superior Company Proposal or such Company Intervening Event remains in effect and (B) the failure to make a Company Adverse Recommendation Change as a result thereof would be inconsistent with its fiduciary duties under applicable Law (it being understood and agreed that any amendment to any material term of such Superior Company Proposal shall require a new Company Notice and a new three Business Day period (it being understood that any such three Business Day period shall be calculated in the same manner as the initial four Business Day period)). In determining whether to make a Company Adverse Recommendation Change or terminate this Agreement in accordance with Section 8.01(h), the Company Board shall take into account any changes to the terms of this Agreement proposed by Parent in response to a Company Notice or otherwise, and if requested by Parent, the Company shall engage in good faith negotiations with Parent regarding any changes to the terms of this Agreement proposed by Parent. The Company shall provide Parent with written information describing any Company Intervening Event that would reasonably be expected to entitle the Company to make a Company Adverse Recommendation Change pursuant to this Section 5.02 in reasonable detail promptly after becoming aware of it, and shall keep Parent reasonably informed of material developments with respect to such Company Intervening Event.
(c) In addition to the obligations of the Company set forth in paragraphs (a) and (b) of this Section 5.02, the Company shall promptly, and in any event within 24 hours of the Company obtaining Knowledge of the receipt thereof, advise Parent in writing of any Company Takeover Proposal or any inquiry or proposal that may reasonably be expected to lead to a Company Takeover Proposal6.03(d)(i), the material terms and conditions of any such Company Takeover Superior Proposal (including any changes thereto) and the identity of the Person making such Superior Proposal) and, if applicable, include a copy of the most current draft of any Alternative Acquisition Agreement and any other material documents with respect to the Superior Proposal that include any terms and conditions of the Superior Proposal that are not set forth in such draft and (y) in the case of a proposed Adverse Recommendation Change pursuant to Section 6.03(d)(ii), the basis therefor, including a reasonably detailed description of the Intervening Event; and
(2) prior to making an Adverse Recommendation Change or terminating this Agreement to enter into a definitive agreement with respect to a Superior Proposal, (a) the Company Takeover shall, and shall use reasonable best efforts to cause its Representatives to, during period beginning the date the Notice is given and ending at 5:00 PM (Eastern Time) on the fourth (4th) Business Day after the date such Notice is given (the “Negotiation Period”), negotiate with Parent in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement and consider any other proposals or offers (if any) made by Parent and (b) after considering such negotiated adjustments and any proposals or offers made by Parent during such Negotiation Period, the Company Board shall have determined after consultation with its financial advisors and outside legal counsel that (x) in the case of an Adverse Recommendation Change or termination of this Agreement pursuant to Section 6.03(d)(i), such Alternative Proposal continues to constitute a Superior Proposal and (y) in the case of an Adverse Recommendation Change or termination of this Agreement pursuant to Section 6.03(d)(i) or an Adverse Recommendation Change pursuant to Section 6.03(d)(ii), that the failure to take such action would be inconsistent with the directors’ exercise of their fiduciary duties under applicable Law. In the event of any revisions to an Alternative Proposal constituting a Superior Proposal. The , the Company shall be required to deliver a new written notice to Parent and to comply with the requirements of this Section 6.03(d) with respect to such new written notice, except that references to the four (i4) keep Parent informed in all material respects and on Business Day period above shall be deemed to be references to a reasonably current basis two (2) Business Day period. In the event of the status and details (including any material change to the terms thereof) of any Company Takeover Proposal and (ii) provide to Parent as soon as practicable after receipt facts or delivery thereof all drafts of agreements circumstances relating to any the Intervening Event, the Company Takeover Proposal shall be required to deliver prompt written notice of such material change (which notice shall include a reasonably detailed description of such material change) and any to comply with the requirements of this Section 6.03(d) with respect to such new written proposals containing any notice, including that the Company will provide Parent with an additional two (2) Business Day period prior to making an Adverse Recommendation Change, and such period shall begin upon the date of Parent’s receipt of the notice of such material terms change. For the avoidance of doubt, if Parent, within four (4) Business Days (or two (2) Business Days, in the event of a Company Takeover Proposal or a counterproposal new written notice following material revisions to a Superior Proposal) following its receipt of a Superior Proposal notice makes an offer that, as determined in good faith by the Company Takeover Board (after consultation with its outside legal counsel and financial advisors), results in the applicable Alternative Proposal no longer being a Superior Proposal, in each case exchanged between any of then the Company or any of its Subsidiaries or any of their Representatives, on the one hand, and the Person making any such Company Takeover Proposal or any of its Affiliates or any of their Representatives, on the other hand. If Parent requests, the information required shall have no right to be provided in clause (i) above shall be provided on a daily basis terminate this Agreement pursuant to Section 9.01(d) as a phone call between senior representatives result of outside counsel or financial advisors of the parties to be held at mutually agreeable times; provided, however, that such phone calls need not be longer than 30 minutes on any given day; and provided further that nothing in this sentence shall in any way expand or otherwise change the Company’s obligations contained in clause (i) aboveAlternative Proposal.
(de) Nothing contained in this Section 5.02 Agreement shall prohibit 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 promulgated under the Exchange ActAct with respect to any tender offer commenced by another Person constituting an Alternative Proposal or from making any disclosure to the Company’s stockholders required (after consultation with outside legal counsel) under U.S. federal or state Law; provided, however, that in no event this Section 6.03(e) shall not permit the Company or the Company Board to make an Adverse Recommendation Change except as expressly set forth in this Section 6.03. Issuance of a “stop, look and listen” communication that complies with the requirements of Rule 14d-9(f) under the Exchange Act by or any committee thereof take, on behalf of the Company in response to a tender offer commenced by another person constituting an Alternative Proposal shall not be considered an Adverse Recommendation Change and shall not require the giving of notice or agree or resolve to take, any action prohibited by compliance with the procedures set forth in Section 5.02(b6.03(d).
(ef) For purposes of this Agreement:
Appears in 1 contract
No Solicitation by the Company; Company Recommendation. (a) Except as otherwise provided in this Agreement, The Company agrees that from the date of this Agreement hereof until the Effective Time or, if earlier, the termination of this Agreement in accordance with its termsArticle VIII, except as expressly permitted by this Section 5.3, the Company shall not, nor and shall it authorize or permit any of cause the Company Subsidiaries not to, and shall instruct its Affiliates or any of and their Representatives not to and use commercially reasonable efforts to cause its or and their respective directors, officers or employees or any of their respective investment bankers, accountants, attorneys or other advisors, agents or representatives (collectively, “Representatives”) Representatives not to, (i) directly solicit, initiate or indirectly solicit knowingly facilitate or initiateencourage (including by way of furnishing non-public information) the submission of any inquiries regarding, or knowingly encouragethe making of any proposal or offer that constitutes, induce or facilitate, any Company Takeover Proposal or any inquiry or proposal that may would reasonably be expected to lead to to, a Company Takeover Acquisition Proposal, or (ii) directly engage in, continue or indirectly otherwise participate in any discussions or negotiations with any Person regarding, or furnish to any other Person any non-public information with respect toin connection with, or cooperate in any way with any Person (whether for the purpose of, encouraging or not a Person making facilitating a Company Takeover Proposal) with respect to, any Company Takeover Acquisition Proposal or (iii) enter into any inquiry letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement or proposal that may reasonably be expected to lead to other similar agreement constituting a Company Takeover Acquisition Proposal. 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 any solicitation, knowing encouragement, discussions or negotiations with any Person conducted heretofore Persons that may be ongoing with respect to any a Company Takeover Proposal Acquisition Proposal, or any inquiry or proposal that may would reasonably be expected to lead to a Company Takeover Acquisition Proposal, request the prompt return or destruction of all confidential information previously furnished to any such Person or its Representatives in connection with a potential Company Acquisition Proposal and immediately terminate all physical and electronic data room access previously granted to any such Person or its Representatives. Notwithstanding the foregoing, at any time prior to obtaining the Company Stockholder Approval, in response to a bona fide written Company Takeover Proposal that the Company Board determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) constitutes or is reasonably expected to result in a Superior Company Proposal, and which Company Takeover Proposal did not result from a breach of this Section 5.02(a) or the Letter Agreement, the Company, and its Representatives at the request of the Company may, subject to compliance with Section 5.02(c), (x) furnish information 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 (y) participate in discussions regarding the terms of such Company Takeover Proposal and the negotiation of such terms with, and only with, the Person or Persons making such Company Takeover Proposal (and such Person’s or Persons’ Representatives and financing sources). Without limiting the foregoing, it It is agreed that any violation of the restrictions set forth in this Section 5.02(a5.3(a) by any Affiliates Representative of the Company or any of its or their Representatives the Company Subsidiaries shall constitute a breach of this Section 5.02(a5.3(a) by the Company; provided that it is understood and agreed that neither the Company nor any Company Subsidiary shall be deemed to have breached any provision of this Section 5.3 as a direct or indirect result of any act or omission by any Person that is a Representative of Parent or any Parent Subsidiary except to the extent such Person was acting on behalf of, or at the direction of, the Company or any Company Subsidiary.
(b) Except as set forth Notwithstanding anything contained in Section 5.3(a) or any other provision of this Agreement to the contrary, if at any time prior to obtaining the Company Stockholder Approval, the Company or any of its Representatives receives a Company Acquisition Proposal that did not result from any breach of this Section 5.025.3, neither and the Company Board or the Company Special Committee determines in good faith, after consultation with its outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes or is reasonably likely to lead to a Company Superior Proposal, then the Company and its Representatives may (i) enter into an Acceptable Confidentiality Agreement with the Person or group of Persons making the Company Acquisition Proposal and furnish, pursuant to such Acceptable Confidentiality Agreement, information (including non-public information) with respect to the Company and the Company Subsidiaries to the Person or group of Persons who has made such Company Acquisition Proposal (provided that the Company shall promptly (and in any event within 48 hours) provide to Parent any material non-public information concerning the Company or any of the Company Subsidiaries that is provided to any Person given such access which was not previously provided to Parent or its Representatives) and (ii) engage in or otherwise participate in discussions or negotiations with the Person or group of Persons making such Company Acquisition Proposal.
(c) The Company shall promptly (and in any event within two Business Days) notify Parent in the event that the Company or any of the Company Subsidiaries or its or their respective Representatives receives a Company Acquisition Proposal and shall disclose to Parent the material terms and conditions of any such Company Acquisition Proposal, and the Company shall, upon the request of Parent, keep Parent reasonably informed of any material developments with respect to any such Company Acquisition Proposal (including any material changes thereto). The Company shall not, and shall cause the Company Subsidiaries not to, enter into any confidentiality or similar agreement with any Person that prohibits the Company from providing to Parent any of the information required to be provided to Parent under this Section 5.3 within the time periods contemplated herein.
(d) Neither the Company Board nor any committee thereof the Company Special Committee shall (ii)(A) (A) withhold or withdraw (or modify in any a manner adverse to Parent), or publicly propose publicly to withhold or withdraw (or modify in any a manner adverse to Parent), the Company Recommendation or (B) approve, recommend the approval or declare advisableadoption of, or approve or adopt, or publicly propose publicly to approverecommend, recommend approve or declare advisableadopt, any Company Takeover Acquisition Proposal (any action described in this clause (i) being referred to as a “Company Adverse Recommendation Change”) or (ii) adopt, execute or propose publicly to adopt, enter into (or allow cause or permit the Company or any of its Affiliates the Company Subsidiaries to execute or enter into, ) any 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 (constituting a Company Acquisition Proposal, other than a confidentiality agreement referred to in Section 5.02(a)) relating to any Company Takeover ProposalAcceptable Confidentiality Agreement. Notwithstanding the foregoingforegoing or any other provision of this Agreement to the contrary, at any time prior to obtaining the time the Company Stockholder ApprovalApproval is obtained (but not thereafter), the Company Board or the Company Special Committee may (1) make a Company Adverse Recommendation Change or terminate this Agreement if either (x) in accordance with Section 8.01(h), in each the case following receipt of a Company Takeover Proposal after the execution of this Agreement that did not result from Adverse Recommendation Change made in response to a breach of Section 5.02(a) or the Letter Agreement and that Company Acquisition Proposal, the Company Board determines or the Company Special Committee has determined in good faith, after consultation with its outside counsel financial advisors and a financial advisor of nationally recognized reputationoutside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Company Proposal and that failure to take such action would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law or (2y) make in the case of a Company Adverse Recommendation Change made in response to a Company Intervening Event, in each case referred to in the foregoing clauses (1) and (2), only if the Company Board determines or the Company Special Committee has determined in good faith (faith, after consultation with its outside counsel financial advisors and outside legal counsel, that, as a financial advisor result of nationally recognized reputation) that a Company Intervening Event, the failure to do so take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law; provided, however, that the Company Board and the Company Special Committee shall not, and shall cause the Company not be entitled to exercise its rights to to, make a Company Adverse Recommendation Change or terminate this Agreement in accordance connection with Section 8.01(h) a Company Superior Proposal unless (iI) the Company delivers has given Parent at least four (4) Business Days’ prior written notice of its intention to take such action (which notice shall reasonably describe the material terms of the Company Superior Proposal or attach the agreement and all material related documentation providing for such Company Superior Proposal), (II) 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 Company Superior Proposal to no longer constitute a Company Superior Proposal, (III) following the end of such notice period, the Company Board or the Company Special Committee shall have considered in good faith any such binding offer from Parent, and shall have determined that the Company Superior Proposal would continue to constitute a Company Superior Proposal if the revisions proposed in such binding offer were to be given effect and (IV) in the event of any material change to the material terms of such Company Superior Proposal, the Company shall, in each case, have delivered to Parent a written an additional notice consistent with that described in clause (a “Company Notice”I) advising Parent above and the notice period shall have recommenced, except that the notice period shall be at least two (2) Business Days (rather than the four (4) Business Days otherwise contemplated by clause (I) above); provided, further, that the Company Board intends and the Company Special Committee shall not, and shall cause the Company not to, make a Company Adverse Recommendation Change in connection with a Company Intervening Event unless (1) the Company has given Parent at least four (4) Business Days’ prior written notice of its intention to take such action (which notice shall reasonably describe the details of such Company Intervening Event), (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 make adjustments in the terms and conditions of this Agreement as would permit the Company Board not to take such action and specifying (3) following the reasons thereforend of such notice period, including in the case of a Superior Company Proposal, the terms and conditions of any Superior Company Proposal that is the basis of the proposed action by the Company Board and (ii) on or after the Applicable Time on the fourth Business Day following the day on which Parent received the Company Notice (it being understood that for purposes of calculating such four Business Days, the first Business Day Special Committee shall be the first Business Day after the date of such receipt), the Company reaffirms have considered in good faith (any changes to this Agreement or other arrangements that may be offered in writing by Parent prior to the termination of such notice period and shall have, after taking account of such changes, determined in good faith, after consultation with its outside counsel and a outside financial advisor of nationally recognized reputation) advisors, that (A) such Company Takeover Proposal continues to constitute a Superior Company Proposal or such Company Intervening Event remains in effect and that it would continue to reasonably be expected to be inconsistent with the Company Board’s fiduciary duties under applicable Law not to take such action.
(Be) Nothing in this Section 5.3 or elsewhere in this Agreement shall prohibit the failure Company from (i) taking and disclosing to make its stockholders a position contemplated by Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act (or any similar communication to stockholders in connection with the making or amendment of a tender offer or exchange offer); provided that any such disclosure or statement that constitutes or contains a Company Adverse Recommendation Change as a result thereof would be inconsistent with its fiduciary duties under applicable Law (it being understood and agreed that any amendment to any material term of such Superior Company Proposal shall require a new Company Notice and a new three Business Day period (it being understood that any such three Business Day period shall be calculated subject to the provisions of Section 5.3(d), (ii) from issuing a “stop, look and listen” statement or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act pending disclosure of its position thereunder or (iii) contacting and engaging in the same manner as the initial four Business Day period)). In determining whether to make discussions with any person or group and their respective Representatives who has made a Company Adverse Recommendation Change or terminate this Agreement Acquisition Proposal that was not solicited in accordance with Section 8.01(h), the Company Board shall take into account any changes to the terms of this Agreement proposed by Parent in response to a Company Notice or otherwise, and if requested by Parent, the Company shall engage in good faith negotiations with Parent regarding any changes to the terms of this Agreement proposed by Parent. The Company shall provide Parent with written information describing any Company Intervening Event that would reasonably be expected to entitle the Company to make a Company Adverse Recommendation Change pursuant to this Section 5.02 in reasonable detail promptly after becoming aware of it, and shall keep Parent reasonably informed of material developments with respect to such Company Intervening Event.
(c) In addition to the obligations of the Company set forth in paragraphs (a) and (b) breach of this Section 5.02, 5.3 solely for the purpose of clarifying such Company shall promptly, Acquisition Proposal and in any event within 24 hours the terms thereof or informing such third party of the Company obtaining Knowledge of the receipt thereof, advise Parent 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 (including any changes thereto) and the identity of the Person making any such Company Takeover Proposal. The Company shall (i) keep Parent informed in all material respects and on a reasonably current basis of the status and details (including any material change to the terms thereof) of any Company Takeover Proposal and (ii) provide to Parent as soon as practicable after receipt or delivery thereof all drafts of agreements relating to any Company Takeover Proposal and any written proposals containing any material terms of a Company Takeover Proposal or a counterproposal to a Company Takeover Proposal, in each case exchanged between any of the Company or any of its Subsidiaries or any of their Representatives, on the one hand, and the Person making any such Company Takeover Proposal or any of its Affiliates or any of their Representatives, on the other hand. If Parent requests, the information required to be provided in clause (i) above shall be provided on a daily basis pursuant to a phone call between senior representatives of outside counsel or financial advisors of the parties to be held at mutually agreeable times; provided, however, that such phone calls need not be longer than 30 minutes on any given day; and provided further that nothing in this sentence shall in any way expand or otherwise change the Company’s obligations contained in clause (i) above.
(d) Nothing contained in restrictions imposed by this Section 5.02 shall prohibit the Company from complying with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act; 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(b)5.3.
(e) For purposes of this Agreement:
Appears in 1 contract
Samples: Merger Agreement (Madison Square Garden Entertainment Corp.)
