No Solicitation; Change in Recommendation. (a) The Company agrees that it shall, and shall cause its Subsidiaries and its and its Subsidiaries’ directors, officers and employees to, and shall use its reasonable best efforts to cause its other Representatives to, immediately cease all existing discussions or negotiations with any Person conducted heretofore with respect to any Takeover Proposal, immediately request the prompt return or destruction of all confidential information previously furnished and immediately terminate all physical and electronic data room access previously granted to any such Person or its Representatives. Except as otherwise provided in this Agreement, from the date of this Agreement until the earlier of the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 7.1, the Company shall not, and shall cause its Subsidiaries and its and its Subsidiaries’ directors, officers and employees not to, and shall use its reasonable best efforts to cause its other Representatives not to, directly or indirectly, (i) solicit, initiate, knowingly encourage or knowingly facilitate any Takeover Proposal or the making or consummation thereof or (ii) enter into, or otherwise participate in any discussions (except to notify such Person of the existence of the provisions of this Section 5.3) or negotiations regarding, or furnish to any Person any information in connection with, any Takeover Proposal. (b) Notwithstanding anything to the contrary contained in this Agreement, if the Company or any of its Subsidiaries, or any of its or their respective Representatives receives an unsolicited bona fide written Takeover Proposal made after the date of this Agreement, the Company, the Company Board (or a duly authorized committee thereof) and the Company’s Representatives may engage in negotiations and discussions with, or furnish any information and other access to, any Person making such Takeover Proposal and any of its Representatives or potential sources of financing if the Company Board determines in good faith, after consultation with the Company’s outside legal and financial advisors, that such Takeover Proposal is or could reasonably be expected to lead to a Superior Proposal; provided that prior to engaging in any negotiations or discussions with, or furnishing any information to, any such Person or its Representatives, the Company and the Person making such Takeover Proposal shall have entered into an Acceptable Confidentiality Agreement. The Company will promptly (and in any event within the later of twenty-four (24) hours or 5:00 p.m. New York City time on the next Business Day) notify Parent in writing of the receipt of such Takeover Proposal, the material terms and conditions of any such Takeover Proposal and the identity of the Person making such Takeover Proposal. The Company will keep Parent informed in all material respects on a prompt basis (and in any event within the later of twenty-four (24) hours or 5:00 p.m. New York City time on the next Business Day) of the material terms and status of such Takeover Proposal (including any change in the price or any other material terms thereof). The Company shall not terminate, amend, modify, waive or fail to enforce any provision of any “standstill” or similar obligation of any Person unless the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law. (c) Except as otherwise provided in this Agreement, neither the Company Board nor any committee thereof shall (i)(A) withdraw, change, qualify, withhold or modify, or publicly propose to withdraw, change, qualify, withhold or modify, in a manner adverse to Parent, the Company Board Recommendation, (B) adopt, approve or recommend, or publicly propose to adopt, approve or recommend, any Takeover Proposal, (C) fail to include in the Proxy Statement the Company Board Recommendation, (D) fail to recommend against any Takeover Proposal subject to Regulation 14D under the Exchange Act in any solicitation or recommendation statement made on Schedule 14D-9 within ten (10) Business Days after Parent so requests reaffirmation in writing (provided, that Parent shall be entitled to make such a written request for reaffirmation only once for each Takeover Proposal and once for each material amendment to such Takeover Proposal), or (E) resolve or publicly propose to do any of the foregoing (any action described in this clause (i) being referred to herein as a “Company Adverse Recommendation Change”) or (ii) cause or permit the Company or any of its Affiliates to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, agreement or commitment (other than an Acceptable Confidentiality Agreement) constituting, or that would reasonably be expected to lead to, any Takeover Proposal (a “Company Acquisition Agreement”). (d) Notwithstanding anything to the contrary in this Agreement, at any time prior to obtaining the Company Shareholder Approval, the Company Board (or a duly authorized committee thereof) may make a Company Adverse Recommendation Change (and, solely with respect to a Superior Proposal, terminate this Agreement pursuant to Section 7.1(d)(ii)), if (i) (A) a Company Intervening Event has occurred or (B) the Company has received a Superior Proposal other than as a result of a breach of this Section 5.3 (other than immaterial breach), in each case, if the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure to make a Company Adverse Recommendation Change as a result of the occurrence of such Company Intervening Event or in response to the receipt of such Superior Proposal, as the case may be, would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law and (ii) (A) the Company provides Parent prior written notice of its intent to make any Company Adverse Recommendation Change or terminate this Agreement pursuant to Section 7.1(d)(ii) at least four (4) Business Days prior to taking such action to the effect that, absent any modification to the terms and conditions of this Agreement, the Company Board has resolved to effect a Company Adverse Recommendation Change or to terminate this Agreement pursuant to Section 7.1(d)(ii), which notice shall specify the basis for such Company Adverse Recommendation Change or termination and attaching the most current draft of any Company Acquisition Agreement with respect to, the Superior Proposal (or, if no such draft exists, a summary of the material terms and conditions of such Superior Proposal), if applicable (a “Notice of Recommendation Change”) (it being understood that such Notice of Recommendation Change shall not in itself be deemed a Company Adverse Recommendation Change and that any change in price or material revision or amendment to the terms of a Superior Proposal, if applicable, shall require a new notice to which the provisions of clauses (ii)(A), (B) and (C) of this Section 5.3(d) shall apply mutatis mutandis except that, in the case of such a new notice, all references to four (4) Business Days in this Section 5.3(d) shall be deemed to be two (2) Business Days); (B) during such four (4) Business Day period, if requested by Parent, the Company shall make its Representatives available to negotiate in good faith with Parent and its Representatives regarding any modifications to the terms and conditions of this Agreement that Parent proposes to make; and (C) at the end of such four (4) Business Day period and taking into account any modifications to the terms of this Agreement proposed by Parent, if any, in a written, binding and irrevocable offer, the Company Board determines in good faith (after consultation with outside legal counsel) that the failure to make such a Company Adverse Recommendation Change would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, and that, in the case of a Company Adverse Recommendation Change with respect to a Takeover Proposal, such Takeover Proposal still constitutes a Superior Proposal. (e) Nothing contained in this Agreement shall prohibit the Company or the Company Board (or a duly authorized committee thereof) from (i) taking and disclosing to the shareholders of the Company a position contemplated by Rule 14e-2(a) under the Exchange Act or making a statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9 under the Exchange Act, (ii) making any disclosure to the shareholders of the Company if the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure to make such disclosure would be reasonably likely to be inconsistent with applicable Law, (iii) informing any Person of the existence of the provisions contained in this Section 5.3 or (iv) making any “stop, look and listen” communication to the shareholders of the Company pursuant to Rule 14d-9(f) under the Exchange Act. (f) As used in this Agreement, “Takeover Proposal” shall mean any inquiry, proposal or offer (whether or not in writing) from any Person (other than Parent, Merger Sub and any of its Affiliates thereof) to purchase or otherwise acquire, directly or indirectly, in a single transaction or series of related transactions, (a) assets of the Company and its Subsidiaries (including securities of Subsidiaries) that account for 15% or more of the Company’s consolidated assets or from which 15% or more of the Company’s revenues or earnings on a consolidated basis are derived or (b) 15% or more of the outstanding Company Common Stock pursuant to a merger, consolidation or other business combination, sale or issuance of shares of capital stock, tender offer, share exchange, other business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company, in each case other than the Merger.
Appears in 3 contracts
Samples: Merger Agreement (Piedmont Natural Gas Co Inc), Merger Agreement (Duke Energy CORP), Merger Agreement
No Solicitation; Change in Recommendation. (a) The Company agrees that it shall, and shall cause its Subsidiaries and its and its Subsidiaries’ , directors, officers and employees to, and shall direct and use its reasonable best efforts to cause its other Representatives to, immediately cease all existing discussions or negotiations with any Person (other than Parent and its Affiliates) conducted heretofore with respect to any proposal that constitutes, or would reasonably be expected to lead to, a Takeover Proposal, immediately and request from each Person that has executed a confidentiality agreement with the Company the prompt return or destruction of all confidential information previously furnished and immediately terminate all physical and electronic data room access previously granted to any such Person or its RepresentativesRepresentatives and terminate access by each such Person and its Representatives to any online or other data rooms containing any non-public information in respect of the Company or any of its Subsidiaries. Except as otherwise provided expressly permitted in this AgreementSection 5.3, from the date of this Agreement until the earlier of the Effective Time or the date, if any, any on which this Agreement is terminated pursuant to Section 7.1, the Company shall not, and shall cause its Subsidiaries and its and its Subsidiaries’ , directors, officers and employees not to, and shall direct and use its reasonable best efforts to cause its other Representatives not to, directly or indirectly, (i) solicit, initiate, initiate or knowingly encourage or knowingly facilitate facilitate, any Takeover Proposal or the making or consummation thereof by any Person (other than Parent), including by approving any transaction, or approving any Person (other than Parent and Merger Sub) becoming an “interested stockholder” for purposes of Section 203 of the DGCL), (ii) enter into, or otherwise participate in any discussions (except to notify such Person of the existence of the provisions of this Section 5.3) or negotiations regardingregarding any Takeover Proposal, or (iii) furnish to any Person any information concerning the Company, or any access to the properties, books and records of the Company and its Subsidiaries, in connection with, any Takeover Proposal, or (iv) propose, agree or publicly announce an intention to take any of the foregoing actions or any other action which would reasonably be expected to lead to, encourage or facilitate a Takeover Proposal. Without limiting the foregoing, the Company agrees that in the event any Subsidiary of the Company or any of its and their respective Representatives takes any action which, if taken by the Company, would constitute a violation of this Section 5.3, the Company shall be deemed to be in breach of this Section 5.3.
(b) Notwithstanding anything to the contrary contained in this AgreementSection 5.3, if at any time after the date hereof and prior to obtaining the Company Stockholder Approval, the Company or any of its Subsidiaries, or any of its or their respective Representatives receives an unsolicited bona fide a written Takeover Proposal made after the date of this AgreementProposal, the Company, the Company its Board (or a duly authorized committee thereof) of Directors and the Company’s Representatives may engage in negotiations and discussions with, or and furnish any information (so long as all such information has previously been made available to Parent or is made available to Parent prior to or concurrently with the time such information is made available to such Person) and other access to, any Person making such Takeover Proposal and any of its Representatives or potential sources if, and only if, the Company’s Board of financing if the Company Board Directors determines in good faith, after consultation with the Company’s outside legal and financial advisors, that (i) such Takeover Proposal is or could would reasonably be expected to lead to result in a Superior ProposalProposal and (ii) the failure of the Board of Directors of the Company to furnish such information or access or enter into such discussions or negotiations would reasonably be expected to be a violation of its fiduciary duties to the stockholders of the Company under applicable Law; provided that prior to engaging in any negotiations or discussions with, or furnishing any information to, any such Person or its Representativesmaterial nonpublic information, the Company and receives from the Person making such Takeover Proposal an executed confidentiality agreement with terms at least as restrictive in all material respects on such Person as the Confidentiality Agreement is on Parent (excluding the “standstill” provisions and paragraph 2 thereof and except as otherwise contemplated by this Agreement), which confidentiality agreement shall have entered into an Acceptable Confidentiality Agreementnot prohibit the Company from complying with the terms of this Section 5.3. The Company will promptly (and in any event within the later of twenty-four (24) hours or 5:00 p.m. New York City time on the next Business Dayi) notify Parent in writing of the receipt of such Takeover Proposal, Proposal and (ii) communicate the material terms of such Takeover Proposal to Parent. The Company will keep Parent reasonably apprised of the status of and conditions of other matters relating to any such Takeover Proposal and on a timely basis (including by providing the identity name of the Person making such Takeover Proposal. The Company will keep Parent informed in all Proposal and copies of material respects on a prompt basis (and in any event within written proposals relating to the later of twenty-four (24) hours or 5:00 p.m. New York City time on the next Business Day) of the material terms and status of such Takeover Proposal (including any change in the price or any other material terms thereofProposal). The Without limiting the generality of the foregoing, the Company shall notify Parent in advance of beginning to provide information to any third party related to a Takeover Proposal or beginning discussions with a third party related to a Takeover Proposal. In addition, from the date of this Agreement until the earlier of the Effective Time or the date, if any on which this Agreement is terminated pursuant to Section 7.1, the Company shall not terminate, amend, modify or waive any provision of any confidentiality, “standstill” or similar agreement to which the Company or any of its Subsidiaries is a party and shall enforce, to the fullest extent permitted under applicable Law, the provisions of any such agreement, including by obtaining injunctions to prevent any breaches of such agreements and to enforce specifically the terms and provisions thereof in any court of the United States of America or of any state having jurisdiction. Notwithstanding anything to the contrary contained in this Agreement, the Company shall be permitted to terminate, amend, modify, waive or fail to enforce any provision of any confidentiality, “standstill” or similar obligation of any Person unless if the Board of Directors of the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure to take such action would reasonably be expected to be inconsistent with a violation of its fiduciary duties to the stockholders of the Company under applicable Law.
(c) Except as otherwise provided in expressly permitted by this AgreementSection 5.3, neither the Company nor the Board nor any committee thereof of Directors of the Company shall (i)(A) withdraw, change, modify or qualify, withhold or modify, or publicly propose to withdraw, change, modify or qualify, withhold or modify, in a manner adverse to ParentParent or Merger Sub, the approval of this Agreement and the transactions contemplated hereby, including the Merger, or the Company Board Recommendation, Recommendation or (B) adopt, approve or recommend, or publicly propose to adopt, approve or recommend, any Takeover Proposal, (C) fail to include in the Proxy Statement stockholders of the Company Board Recommendation, (D) fail to recommend against any Takeover Proposal subject to Regulation 14D under the Exchange Act in any solicitation or recommendation statement made on Schedule 14D-9 within ten (10) Business Days after Parent so requests reaffirmation in writing (provided, that Parent shall be entitled to make such a written request for reaffirmation only once for each Takeover Proposal and once for each material amendment to such Takeover Proposal), or (E) resolve or publicly propose to do any of the foregoing (any action described in this clause (i) being referred to herein as a “Company Adverse Recommendation Change”) or (ii) cause authorize, approve, recommend or permit declare advisable, or propose to adopt, approve, recommend or declare advisable, or allow the Company or any of its Affiliates Subsidiaries to execute or enter into, into any letter of intent, memorandum of understanding, agreement in principlemerger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or commitment (other than an Acceptable Confidentiality Agreement) constitutingsimilar agreement with respect to, or that is intended to or would reasonably be expected to lead to, any Takeover Proposal (other than a “Company Acquisition Agreement”confidentiality agreement referred to in Section 5.3(b) pursuant to and in accordance with the limitations set forth therein).
(d) Notwithstanding anything to the contrary in this Agreement, at any time prior to obtaining the Company Shareholder Stockholder Approval, the Board of Directors of the Company Board (or a duly authorized committee thereof) may make a Company Adverse Recommendation Change (and, solely with respect to a Superior Proposal, terminate this Agreement pursuant to Section 7.1(d)(ii)), if either (iA)(1) the Board of Directors of the Company receives a written Takeover Proposal from any Person that is not withdrawn and (A2) the Board of Directors of the Company determines in good faith, after consultation with its independent financial advisors and outside legal counsel, that such Takeover Proposal constitutes a Company Intervening Event has occurred Superior Proposal or (B) a material development or material change in circumstances occurs or arises after the date of this Agreement that was not known by the Board of Directors of the Company has received as of the date of this Agreement and does not relate to (i) a Superior Takeover Proposal other than as or (ii) a result material development or material change in circumstances of a breach Parent, that does not also relate to the Company, in the case of either clause (A) or clause (B) of this Section 5.3 (other than immaterial breach5.3(d), in each case, if and only if:
(i) the Board of Directors of the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure to make a Company Adverse Recommendation Change as a result of the occurrence Board of Directors of the Company to take such Company Intervening Event or in response to the receipt of such Superior Proposal, as the case may be, action would reasonably be expected to be inconsistent with a violation of its fiduciary duties under applicable Law and Law; and
(ii) solely with respect to clause (A) above of this Section 5.3(d) with respect to a Superior Proposal:
(1) the Company provides Parent prior written notice of its intent to make any such Company Adverse Recommendation Change or terminate this Agreement pursuant to Section 7.1(d)(ii) at least four (4) Business Days prior to taking such action action, to the effect thatthat the Board of Directors of the Company has received a Superior Proposal and, absent any modification revision to the terms and conditions of this Agreement, the Board of Directors of the Company Board has resolved to effect a Company Adverse Recommendation Change or to terminate this Agreement pursuant to Section 7.1(d)(ii), which notice shall specify the basis for such Company Adverse Recommendation Change or termination and attaching termination, including the most current draft material terms of any Company Acquisition Agreement with respect to, the Superior Proposal (or, if no such draft exists, a summary of the material terms and conditions of such Superior Proposal), if applicable (a “Notice of Recommendation ChangeSuperior Proposal”) (it being understood that such Notice of Recommendation Change Superior Proposal shall not in itself be deemed a Company Adverse Recommendation Change and that any change in price or material revision or amendment to the terms of a Superior Proposal, if applicable, shall require a new notice to which the provisions of clauses (ii)(AChange), (B) and (C) of this Section 5.3(d) shall apply mutatis mutandis except that, in the case of such a new notice, all references to four (4) Business Days in this Section 5.3(d) shall be deemed to be two ;
(2) Business Days); (B) during such four (4) Business Day period, if requested by Parent, the Company shall make its Representatives available to negotiate negotiates in good faith with Parent and its Representatives regarding any modifications (to the terms and conditions of this Agreement extent that Parent proposes wishes to make; and negotiate) to enable Parent to make an offer that is at least as favorable to the stockholders of the Company so that such Takeover Proposal would cease to constitute a Superior Proposal;
(C3) at the end of Parent does not, within such four (4) Business Day period period, make an offer that the Board of Directors of the Company determines in good faith, after consultation with its independent financial advisor and outside legal counsel, to be an offer such that such Takeover Proposal would cease to constitute a Superior Proposal (provided that, in the event of any amendment to the financial (including form of consideration) or other material terms of such Takeover Proposal, the Company shall deliver to Parent a new written Notice of Superior Proposal and shall comply with the requirements of this Section 5.3(d) with respect to such new Notice of Superior Proposal); and
(4) the Company’s Board of Directors, after taking into account any modifications to the terms of this Agreement proposed and the Merger agreed to by ParentParent and Merger Sub after receipt of such notice, if any, in a written, binding and irrevocable offer, the Company Board determines in good faith (after consultation with outside legal counsel) continues to believe that the failure to make such a Company Adverse Recommendation Change would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, and that, in the case of a Company Adverse Recommendation Change with respect to a Takeover Proposal, such Takeover Proposal still constitutes a Superior Proposal.
(e) Nothing contained in this Agreement shall prohibit the Company or the Board of Directors of the Company Board (or a duly authorized committee thereof) from (i) taking and disclosing to the shareholders of the Company a position contemplated by Rule 14e-2(a) under the Exchange Act or making a statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9 under the Exchange Act, (ii) making any disclosure to the shareholders of the Company if the Board of Directors of the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure of the Company to make such disclosure would reasonably be reasonably likely expected to be inconsistent with a violation of applicable Law, Law or (iii) informing any Person of the existence of the provisions contained in this Section 5.3 or 5.3; provided that any Company Adverse Recommendation Change may only be made in accordance with Section 5.3(d); it being understood that neither (ivA) making any a “stop, look and listen” communication to the shareholders of the Company pursuant to Rule 14d-9(f) under the Exchange ActAct (or any similar communication to the shareholders of the Company) nor (B) a Distribution Date Delay (or a Form 8-K or other disclosure in respect thereof) shall be deemed to be or constitute a Company Adverse Recommendation Change.
(f) As used in this Agreement, “Takeover Proposal” shall mean any inquiry, bona fide proposal or offer (whether in writing or not in writingotherwise) from any Person (other than Parent, Merger Sub and any of its Affiliates thereof) relating to, or that is reasonably expected to lead to, any direct or indirect purchase or otherwise acquire, directly or indirectlyacquisition, in a single transaction or series of related transactions, of (aA) any assets or businesses of the Company and its Subsidiaries (including securities of Subsidiaries) that account for 15constitute 20% or more of the Company’s consolidated assets or from to which 1520% or more of the Company’s revenues revenues, net income or earnings before interest expense, taxes depreciation and amortization on a consolidated basis are derived attributable, or (bB) 15beneficial ownership (as defined under Section 13(d) of the Exchange Act) of 20% or more of any class of equity securities of the outstanding Company Common Stock pursuant to a merger, consolidation or other business combination, sale or issuance of shares of capital stock, tender offer, share exchangeexchange offer, other business combination, recapitalization, liquidation, dissolution license agreement or similar transaction involving the Company, in each case other than the Mergertransaction.
Appears in 2 contracts
Samples: Merger Agreement (Teva Pharmaceutical Industries LTD), Merger Agreement (Cephalon Inc)
No Solicitation; Change in Recommendation. (a) The Company agrees that it shall, and shall cause its Subsidiaries and its and its Subsidiaries’ Subsidiaries respective directors, officers and employees to, and shall use its reasonable best efforts to cause its other Representatives to, immediately cease all existing discussions or negotiations with any Person conducted heretofore with respect to any Takeover Proposal, immediately request the prompt return or destruction of all confidential information previously furnished and immediately terminate all physical and electronic data room access previously granted to any such Person or its Representatives. Except as otherwise provided in this Agreement, from the date of this Agreement until the earlier of the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 7.1, the Company shall not, and shall cause its Subsidiaries and its and its Subsidiaries’ Subsidiaries respective directors, officers and employees not to, and shall use its reasonable best efforts to cause its other Representatives not to, directly or indirectly, (i) solicit, initiate, knowingly encourage or knowingly facilitate any Takeover Proposal or the making or consummation thereof or (ii) enter into, or otherwise participate in any discussions (except to notify such Person of the existence of the provisions of this Section 5.3) or negotiations regarding, or furnish to any Person any material non-public information in connection with, any Takeover Proposal.
(b) Notwithstanding anything to the contrary contained in this Agreement, if the Company or any of its Subsidiaries, or any of its or their respective Representatives Representatives, receives an unsolicited bona fide written Takeover Proposal made after the date of this AgreementAgreement and prior to the receipt of the Company Shareholder Approval, the Company, the Company Board (or a duly authorized committee thereof) and the Company’s Representatives may engage in negotiations and discussions with, or furnish any information and other access to, any Person making such Takeover Proposal and any of its Representatives or potential sources of financing if the Company Board determines in good faith, after consultation with the Company’s outside legal and financial advisors, that such Takeover Proposal is or could reasonably be expected to lead to a Superior ProposalProposal and that failure to take such actions would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law; provided that prior to engaging in any negotiations or discussions with, or furnishing any material non-public information to, any such Person or its Representatives, the Company and the Person making such Takeover Proposal shall have entered into an Acceptable Confidentiality Agreement. The Company will promptly (and in any event within the later of twenty-four (24) hours or and 5:00 p.m. New York City Pacific time on the next Business Day) notify Parent in writing of the receipt of such Takeover Proposal, Proposal and the material terms and conditions of any such Takeover Proposal and Proposal, including the identity of the Person making such Takeover Proposal. The Company will keep Parent promptly informed in all material respects on a prompt basis (and in any event within the later of twenty-four (24) hours or and 5:00 p.m. New York City Pacific time on the next Business Day) of the material terms and status of communications relating to such Takeover Proposal (including any change in the price or any other material terms thereof). The Company shall not terminate, amend, modify, waive or fail to enforce any provision of any “standstill” or similar obligation of any Person unless the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law.
(c) Except as otherwise provided in this Agreement, neither the Company Board nor any committee thereof shall (i)(A) withdraw, change, qualify, withhold or modifymodify in a manner adverse to Parent, or publicly propose to withdraw, change, qualify, withhold or modify, modify in a manner adverse to Parent, the Company Board Recommendation, (B) adopt, approve or recommend, or publicly propose to adopt, approve or recommend, any Takeover Proposal, (C) fail to include the Company Board Recommendation in the Proxy Statement the Company Board Recommendation, or (D) fail to recommend against any in the event a tender offer that constitutes a Takeover Proposal subject to Regulation 14D under the Exchange Act is commenced, fail to recommend against such Takeover Proposal in any solicitation or recommendation statement made on Schedule 14D-9 within ten (10) Business Days after Parent so requests reaffirmation in writing (provided, provided that Parent shall be entitled to make such a written request for reaffirmation only once for each Takeover Proposal and once for each material amendment to such Takeover Proposal), or (E) resolve or publicly propose to do any of the foregoing (any action described in this clause (i) being referred to herein as a “Company Adverse Recommendation Change”) or (ii) cause or permit the Company or any of its Affiliates to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, agreement or commitment (other than an Acceptable Confidentiality Agreement) constituting, or that would reasonably be expected to lead to, any to a Takeover Proposal (a “Company Acquisition Agreement”).
(d) Notwithstanding anything to the contrary in this Agreement, :
(i) at any time prior to obtaining the Company Shareholder Approval, the Company Board (or a duly authorized committee thereof) may make a Company Adverse Recommendation Change (and, solely with respect to a Superior Proposal, terminate this Agreement pursuant to Section 7.1(d)(ii)), if (i) (A) a Company Intervening Event has occurred or (B) the Company has received a Superior Proposal other than as a result of a breach of this Section 5.3 (other than an immaterial breach), in each casethe Company Board (or a duly authorized committee thereof) may make a Company Adverse Recommendation Change and, solely with respect to a Superior Proposal, terminate this Agreement pursuant to Section 7.1(d)(ii), if (A) the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure to make a Company Adverse Recommendation Change as a result of the occurrence of such Company Intervening Event or in response to the receipt of such Superior Proposal, as the case may be, Proposal would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law and (iiB) (A1) the Company provides Parent prior written notice of its intent to make any a Company Adverse Recommendation Change or and terminate this Agreement pursuant to Section 7.1(d)(ii) at least four (4) Business Days prior to taking such action to the effect that, absent any modification to the terms and conditions of this Agreement, the Company Board has resolved to effect a Company Adverse Recommendation Change or and to terminate this Agreement pursuant to Section 7.1(d)(ii), which notice shall specify the basis for such Company Adverse Recommendation Change or termination and attaching attach the most current draft of any Company Acquisition Agreement with respect to, to the Superior Proposal (or, if no such draft exists, a written summary of the material terms and conditions of such Superior Proposal), if applicable ) (a “Notice of Superior Proposal Recommendation Change”) (it being understood that such Notice of Superior Proposal Recommendation Change shall not in itself be deemed a Company Adverse Recommendation Change and that any change in price or material revision or amendment to the terms of a such Superior Proposal, if applicable, Proposal shall require a new notice to which the provisions of clauses (ii)(AB)(1), (B2) and (C3) of this Section 5.3(d5.3(d)(i) shall apply mutatis mutandis except that, in the case of such a new notice, all references to four (4) Business Days in this Section 5.3(d5.3(d)(i) shall be deemed to be two three (23) Business Days); (B2) during such four (4) Business Day periodperiod following Parent’s receipt of the Notice of Superior Proposal Recommendation Change, if requested by Parent, the Company shall make its Representatives reasonably available to negotiate in good faith with Parent and its Representatives regarding any modifications to the terms and conditions of this Agreement that Parent proposes to make; and (C3) at the end of such four (4) Business Day period and taking into account any modifications to the terms of this Agreement proposed by Parent to the Company in a written, binding and irrevocable offer, the Company Board determines in good faith (after consultation with outside legal counsel) that the failure to make such a Company Adverse Recommendation Change would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law and that such Takeover Proposal still constitutes a Superior Proposal; and
(ii) at any time prior to obtaining the Company Shareholder Approval, the Company Board (or a duly authorized committee thereof) may make a Company Adverse Recommendation Change in response to the occurrence of a Company Intervening Event if (A) the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure to make a Company Adverse Recommendation Change as a result of the occurrence of such Company Intervening Event would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law and (B)
(1) the Company provides Parent prior written notice of its intent to make a Company Adverse Recommendation Change at least four (4) Business Days prior to taking such action to the effect that, absent any modification to the terms and conditions of this Agreement, the Company Board has resolved to effect a Company Adverse Recommendation Change, which notice shall describe in reasonable detail the Company Intervening Event that is the basis for such Company Adverse Recommendation Change (a “Notice of Intervening Event Recommendation Change”) (it being understood that such Notice of Intervening Event Recommendation Change shall not in itself be deemed a Company Adverse Recommendation Change); (2) during such four (4) Business Day period following Parent’s receipt of the Notice of Intervening Event Recommendation Change, if requested by Parent, if any, the Company shall make its Representatives reasonably available to negotiate in good faith with Parent and its Representatives regarding any modifications to the terms and conditions of this Agreement that Parent proposes to make; and (3) at the end of such four (4) Business Day period and taking into account any modifications to the terms of this Agreement proposed by Parent to the Company in a written, binding and irrevocable offer, the Company Board determines in good faith (after consultation with outside legal counsel) that the failure to make such a Company Adverse Recommendation Change would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, and that, in the case of a Company Adverse Recommendation Change with respect to a Takeover Proposal, such Takeover Proposal still constitutes a Superior Proposal.
(e) Nothing contained in this Agreement shall prohibit the Company or the Company Board (or a duly authorized committee thereof) from (i) taking and disclosing to the shareholders of the Company a position contemplated by Rule 14e-2(a) under the Exchange Act or making a statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9 under the Exchange Act, (ii) making any disclosure to the shareholders of the Company if the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure to make such disclosure would be reasonably likely to be inconsistent with applicable Law, (iii) informing any Person of the existence of the provisions contained in this Section 5.3 or (iv) making any “stop, look and listen” communication to the shareholders of the Company pursuant to Rule 14d-9(f) under the Exchange ActAct (or any similar communication to the shareholders of the Company). No disclosures under this Section 5.3(e) shall be, in themselves, a breach of Section 5.3 or a basis for Parent to terminate this Agreement pursuant to Article VII.
(f) As used in this Agreement, “Takeover Proposal” shall mean any bona fide inquiry, proposal or offer (whether or not in writing) from any Person (other than Parent, US Parent, Merger Sub and or any of its Affiliates thereoftheir respective Affiliates) to purchase or otherwise acquire, directly or indirectly, in a single transaction or series of related transactions, (ai) assets of the Company and its Subsidiaries (including securities of Subsidiaries) that account for 15% or more of the Company’s consolidated assets or from which 15% or more of the Company’s revenues or earnings on a consolidated basis are derived or (bii) 15% or more of the outstanding Company Common Stock pursuant to a merger, consolidation or other business combination, sale or issuance of shares of capital stock, tender offer, share exchange, other business combination, recapitalization, liquidation, dissolution recapitalization or similar transaction involving the Company, in each case other than the Merger.;
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement
No Solicitation; Change in Recommendation. (a) The Except as expressly permitted by this Section 5.3, (i) the Company agrees that it shall, and shall cause its Subsidiaries and its and its Subsidiaries’ , directors, officers officers, employees and employees to, and shall use its reasonable best efforts to cause its other Representatives to, immediately cease all existing discussions or negotiations with any Person conducted heretofore or group of Persons with respect to any Takeover Proposal, immediately request the prompt return or destruction of all confidential information previously furnished Alternative Proposal and immediately terminate all physical and electronic data room access previously granted to any such Person or its Representatives. Except as otherwise provided in this Agreement, from the date of this Agreement (ii) until the earlier of the Effective Time or the date, date (if any, ) on which this Agreement is terminated pursuant to Section 7.1, the Company shall not, and shall cause its Subsidiaries and its and its Subsidiaries’ , directors, officers and employees not to, and shall use its reasonable best efforts to cause its other Representatives not to, directly or indirectly, (iA) solicit, initiate, knowingly encourage or knowingly facilitate (including by way of furnishing non-public information) any Takeover Proposal inquiries regarding, or the making of any proposal or consummation thereof offer that constitutes, or would reasonably be expected to lead to, any Alternative Proposal, (iiB) enter into, continue or otherwise participate in any discussions (except to notify such Person of the existence of the provisions of this Section 5.3) or negotiations regarding, or furnish to any Person any non-public material information in connection with, any Takeover Alternative Proposal, or (C) enter into any Contract or agreement in principle with respect to an Alternative Proposal.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to obtaining the Company Stockholder Approval, the Company or any of its Subsidiaries, or any of its or their respective Representatives receives an unsolicited bona fide written Takeover Proposal made after the date of this AgreementAlternative Proposal, the Company, the Company Board (or a duly authorized committee thereof) and the Company’s their Representatives may engage in negotiations and discussions with, or furnish any information and other access to, any Person making such Takeover Alternative Proposal and any of its Representatives or (including potential sources of financing financing) if the Company Board determines in good faith, after consultation with the Company’s outside legal and financial advisors, that such Takeover Alternative Proposal is or could reasonably be expected to lead to a Superior Proposal; provided provided, that prior to engaging in any negotiations or discussions with, or furnishing any material non-public information to, to any such Person or its RepresentativesPerson, the Company and receives from the Person making such Takeover Alternative Proposal shall have entered into an Acceptable Confidentiality Agreement. The Upon the receipt of any such Alternative Proposal, the Company will shall promptly (and in any event within the later of twenty-four (24) hours or 5:00 p.m. New York City time on the next Business Day) notify Parent in writing, provide Parent a copy of any such Alternative Proposal made in writing and provided to the Company or any of the receipt of such Takeover Proposal, its Subsidiaries and communicate in writing the material terms and conditions of any such Takeover Alternative Proposal and the identity of the Person making such Takeover Proposalto Parent. The Company will keep Parent informed in all material respects apprised on a prompt basis (and in any event within the later of twenty-four (24) hours or 5:00 p.m. New York City time on the next Business Dayhours) of the material terms and status of any Alternative Proposal, including any material developments (including a change in price), material discussions or material negotiations regarding any Alternative Proposal.
(c) Except as otherwise provided in this Agreement, the Company Board shall not (i)(A) change, qualify, withdraw or modify, or publicly propose to change, qualify, withdraw or modify, in a manner adverse to Parent, the Company Board Recommendation, (B) fail to include the Company Board Recommendation in the Proxy Statement, (C) take any action or make any recommendation or public statement in connection with a tender offer or exchange offer other than a recommendation against such Takeover offer or a temporary “stop, look and listen” communication by the Company Board pursuant to Rule 14d-9(f) of the Exchange Act, in each case, that includes reaffirmation of the Company Board Recommendation and a reaffirmation of the approval by the Company Board of this Agreement, the Merger and the Transactions, or (D) approve or recommend, or publicly propose to approve or recommend, to the stockholders of the Company an Alternative Proposal (including any change action described in this clause (i) being referred to herein as a “Company Adverse Recommendation Change”) or (ii) authorize the price Company or any other material terms thereof). The Company shall not terminateof its Subsidiaries to enter into any letter of intent, amendmerger, modify, waive or fail to enforce any provision of any “standstill” acquisition or similar obligation definitive Contract providing for an Alternative Proposal.
(d) Notwithstanding anything to the contrary in this Agreement, at any time prior to the receipt of any Person unless the Company Stockholder Approval, the Company Board (or a duly authorized committee thereof) may make a Company Adverse Recommendation Change in response to a Superior Proposal and/or terminate this Agreement pursuant to Section 7.1(d)(ii) only if (i) the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law.
(c) Except as otherwise provided in this Agreement, neither the Company Board nor any committee thereof shall (i)(A) withdraw, change, qualify, withhold or modify, or publicly propose to withdraw, change, qualify, withhold or modify, in a manner adverse to Parent, the Company Board Recommendation, (B) adopt, approve or recommend, or publicly propose to adopt, approve or recommend, any Takeover Proposal, (C) fail to include in the Proxy Statement the Company Board Recommendation, (D) fail to recommend against any Takeover Proposal subject to Regulation 14D under the Exchange Act in any solicitation or recommendation statement made on Schedule 14D-9 within ten (10) Business Days after Parent so requests reaffirmation in writing (provided, that Parent shall be entitled to make such a written request for reaffirmation only once for each Takeover Proposal and once for each material amendment to such Takeover Proposal), or (E) resolve or publicly propose to do any of the foregoing (any action described in this clause (i) being referred to herein as a “Company Adverse Recommendation Change”) or ; (ii) cause or permit the Company or any of its Affiliates to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, agreement or commitment (other than an Acceptable Confidentiality Agreement) constituting, or that would reasonably be expected to lead to, any Takeover Proposal (a “Company Acquisition Agreement”).
(d) Notwithstanding anything to the contrary in this Agreement, at any time prior to obtaining the Company Shareholder Approval, the Company Board (or a duly authorized committee thereof) may make a Company Adverse Recommendation Change (and, solely with respect to a Superior Proposal, terminate this Agreement pursuant to Section 7.1(d)(ii)), if (i) (A) a Company Intervening Event has occurred or (B) the Company has received a Superior Proposal other than as a result of a breach of this Section 5.3 (other than immaterial breach), in each case, if the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure to make a Company Adverse Recommendation Change as a result of the occurrence of such Company Intervening Event or in response to the receipt of such Superior Proposal, as the case may be, would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law and (ii) (A) the Company provides Parent prior written notice of its intent to make any a Company Adverse Recommendation Change in response to a Superior Proposal or terminate this Agreement pursuant to Section 7.1(d)(ii) at least four (4) Business Days prior to taking such action to the effect that, absent any modification to the terms and conditions of this Agreement, the Company Board has resolved to effect a Company Adverse Recommendation Change or to terminate this Agreement pursuant to Section 7.1(d)(ii)action, which notice shall specify the basis for such Company Adverse Recommendation Change or termination and attaching the most current draft of any Company Acquisition Agreement with respect to, the Superior Proposal (or, if no such draft exists, a summary of include the material terms and conditions of the Superior Proposal, the identity of the party making such Superior Proposal), if applicable Proposal and copies of any proposed transaction Contracts and related material documents with respect to such Superior Proposal (a “Notice of Recommendation ChangeSuperior Proposal”) (it being understood that such Notice of Recommendation Change Superior Proposal shall not in itself be deemed a Company Adverse Recommendation Change and that any change in price or material revision or amendment to the terms of a such Superior Proposal, if applicable, Proposal shall require a new notice to which the provisions of clauses (ii)(A), (B) and (C) of this Section 5.3(d) shall apply mutatis mutandis except thatand, in the case of such a new noticecase, all references to four (4) Business Days in this Section 5.3(d) shall be deemed to be two refer to three (23) Business DaysDays instead); (Biii) during such four (4) Business Day period, if requested by Parent, the Company shall make negotiates, and causes its Representatives available legal counsel and financial advisors to negotiate in good faith negotiate, with Parent and its Representatives regarding any in good faith and, if agreed between the Company and Parent, to make such modifications to the terms and conditions of this Agreement such that such Alternative Proposal would cease to constitute a Superior Proposal; (iv) Parent proposes to make; and (C) at the end of has not, within such four (4) Business Day period period, made a written, binding and irrevocable offer capable of being accepted by the Company to alter the terms or conditions of this Agreement such that such Alternative Proposal would cease to constitute a Superior Proposal; and (v) the Company Board, after taking into account any modifications to the terms of this Agreement proposed and the Merger agreed to by ParentParent and Merger Sub after receipt of the Notice of Superior Proposal, if anycontinues to believe, in a written, binding and irrevocable offer, the Company Board determines in good faith (after consultation with its outside legal counsel) , that the failure to make such a Company Adverse Recommendation Change would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, and that, in the case of a Company Adverse Recommendation Change with respect to a Takeover Proposal, such Takeover Alternative Proposal still constitutes a Superior Proposal.
(e) Nothing Subject to the proviso in this Section 5.3(e), nothing contained in this Agreement shall prohibit the Company or the Company Board (or a duly authorized committee thereof) from (i) taking and disclosing to the shareholders stockholders of the Company a position contemplated by Rule 14e-2(a) under the Exchange Act or making a statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9 under the Exchange Act, (ii) making any disclosure to the shareholders of the Company if the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure to make such disclosure would be reasonably likely to be inconsistent with applicable Law, (iii) informing any Person of the existence of the provisions contained in this Section 5.3 5.3, or (iviii) making any “stop, look and listen” communication to the shareholders stockholders of the Company pursuant to Rule 14d-9(f) under the Exchange ActAct (or any similar communication to the stockholders of the Company); provided, that neither the Company Board nor any committee thereof shall effect a Company Adverse Recommendation Change unless the applicable requirements of Section 5.3(d) shall have been satisfied.
(f) As used in this Agreement, “Takeover Alternative Proposal” shall mean any inquiry, proposal or offer (whether or not in writing) from any Person (other than Parent, Merger Sub and any of its Affiliates thereof) relating to, or that is reasonably expected to lead to, any purchase or otherwise acquire, directly or indirectlyacquisition, in a single transaction or series of related transactions, (a) of all or substantially all of the assets of the Company related to the Company’s Alaska properties, Vessels, finances and businesses, whether alone or together with other assets of the Company and its Subsidiaries (including securities of Subsidiaries) that account for 15% or more of the Company’s consolidated assets or from which 15% or more of the Company’s revenues or earnings on a consolidated basis are derived or (b) 15% or more of the outstanding Company Common Stock , pursuant to a merger, consolidation or other business combination, sale or issuance of shares of capital stock, tender offer, share exchange, other business combination, recapitalization, liquidation, dissolution exchange offer or similar transaction involving the Company, in each case other than the Mergertransaction.
Appears in 2 contracts
Samples: Merger Agreement (Horizon Lines, Inc.), Merger Agreement (Matson, Inc.)
No Solicitation; Change in Recommendation. (a) The Company agrees that it and its Subsidiaries and their respective officers, directors and employees shall, and shall cause the Company and its Subsidiaries and its and its Subsidiaries’ directors, officers and employees to, and shall use its their reasonable best efforts to cause its their other Representatives toRepresentatives, to immediately cease and cause to be terminated all existing discussions or negotiations with any Person conducted heretofore with respect to any Takeover ProposalProposal or any proposal reasonably expected to lead to, immediately any Takeover Proposal and shall promptly request the prompt return from, or destruction by, all such Persons of all confidential copies of non-public information previously furnished and immediately terminate all physical and electronic data room access previously granted or made available to any such Person Persons by or its Representatives. Except as otherwise provided in this Agreement, from the date of this Agreement until the earlier on behalf of the Effective Time Company in accordance with the terms of any confidentiality or the datesimilar agreement in place with such Person. The Company and its Subsidiaries and their respective officers, if any, on which this Agreement is terminated pursuant to Section 7.1, the Company directors and employees shall not, and shall cause its Subsidiaries and its and its Subsidiaries’ directors, officers and employees not to, and shall use its their reasonable best efforts to cause its their other Representatives not to, directly or indirectly, (i) solicit, initiate, knowingly encourage or knowingly facilitate any (including by way of furnishing or providing access to non-public information), or take any action which is reasonably expected to lead to, a Takeover Proposal or the making or consummation thereof or Proposal; (ii) enter into, into or otherwise participate in any discussions (except to notify such Person of the existence of the provisions of this Section 5.36.3 without more) or negotiations regarding, or furnish to with any Person any information in connection with, regarding any Takeover Proposal; (iii) approve any transaction under, or any Person (other than Parent or Purchaser) becoming an “interested stockholder” under, Section 203 of the DGCL (except for any transaction involving Parent, Purchaser or any of their Affiliates); or (iv) enter into any merger agreement, agreement in principle, letter of intent, or other similar agreement providing for any Takeover Proposal (each, a “Company Acquisition Agreement”). Without limiting the foregoing, it is agreed that any violation of the restrictions on the Company set forth in this Section 6.3 by any officer or director of the Company (or any other Representative of the Company that is authorized, intentionally sanctioned or intentionally caused by the Company) shall be deemed a breach of this Section 6.3 by the Company.
(b) Notwithstanding anything Section 6.3(a), at any time prior to the contrary contained Offer Acceptance Time, in this Agreement, if the Company or any of its Subsidiaries, or any of its or their respective Representatives receives an unsolicited response to a bona fide written Takeover Proposal made after the date hereof which did not result from a breach of this Agreement, the CompanySection 6.3, the Company may, if the Company Board determines in good faith (after consultation with outside counsel) that such Takeover Proposal is or could reasonably be expected to lead to a duly authorized committee thereofSuperior Proposal, and after giving Parent written notice of such determination (x) and the Company’s Representatives may engage in negotiations and discussions with, or furnish any information and other access to, any Person making such Takeover Proposal and any of its Representatives or potential sources of financing if pursuant to an Acceptable Confidentiality Agreement; provided, that the Company Board determines in good faith, after consultation provides Parent any information with respect to the Company’s outside legal and financial advisors, Company that such Takeover Proposal is or could reasonably be expected to lead be material to a Superior Proposal; provided that Parent furnished to such other Person which was not previously furnished to Parent prior to engaging in any negotiations to, or discussions concurrently with, or furnishing any information tothe time it is provided to such other Person, any such Person or its Representatives, the Company and (y) participate in discussions and negotiations with the Person making such Takeover Proposal shall have entered into an Acceptable Confidentiality Agreementand its Representatives or potential sources of financing. The In addition to the other obligations of the Company set forth in this Section 6.3, the Company will promptly provide notice to Parent in writing (and in any event case within the later of twentyforty-four eight (2448) hours or 5:00 p.m. New York City time on the next Business Dayof knowledge of receipt) notify Parent in writing of the receipt of such Takeover Proposal, or any request for information relating to the material terms and conditions Company or any of the Subsidiaries of the Company or for access to the business, properties, assets, books or records of the Company or any of its Subsidiaries by any third party with respect to a Takeover Proposal. The Company shall, in any such Takeover Proposal and notice to Parent, indicate the identity of the Person making such Takeover Proposal. The Company will Proposal or request), and thereafter shall keep Parent reasonably informed in on a reasonably current basis of all material respects on a prompt basis (developments affecting the status of and in any event within the later of twenty-four (24) hours or 5:00 p.m. New York City time on the next Business Day) of the material terms and status of such Takeover Proposal (including any change in the price or request or any other changes to the material terms thereof (and the Company shall provide Parent promptly after receipt thereof with copies of any material written materials constituting such Takeover Proposal or request or any changes to the material terms thereof)) and of the status of any such discussions or negotiations. The In addition, during the period from the date hereof through the Offer Acceptance Time, the Company shall enforce and not terminate, amend, modify, modify or waive or fail to enforce any provision of any confidentiality or “standstill” agreement to which the Company or similar obligation any of any Person unless its Subsidiaries is a party, other than (should the Company Board (or a duly authorized committee thereof) determines determine in good faith, after following consultation with its outside legal counsel, counsel that the failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law) a restriction in any applicable confidentiality or “standstill” agreement that would prohibit or restrict any such Party from making a non-public bona fide written Takeover Proposal directly to the Company Board (provided the foregoing shall not alter or affect any of the Company’s other obligations in this Section 6.3).
(c) Except as otherwise provided in expressly permitted by this Agreement, neither the Company Board shall not, nor any committee thereof shall shall, (i)(A) withdraw, change, qualify, withhold or modify, amend or qualify or publicly propose to withdraw, changemodify, amend or qualify, withhold or modify, any part of the Company Board Recommendation in a manner adverse to Parent, Parent or its interests in the Company Board RecommendationTransaction, (B) adopt, approve approve, recommend or recommenddeclare advisable, or publicly propose to adopt, approve approve, recommend or recommenddeclare advisable, any Takeover Proposal, (C) fail to include in the Proxy Statement the Company Board Recommendation, Recommendation in the Schedule 14D-9 or (D) fail within eight (8) Business Days of a written request by Parent for the Company to recommend against reaffirm the Company Board Recommendation following the date any Takeover Proposal subject or modification thereto is published or made public, the Company fails to Regulation 14D under issue a press release that reaffirms the Exchange Act in any solicitation or recommendation statement made on Schedule 14D-9 within ten Company Board Recommendation (10without qualification) Business Days after Parent so requests reaffirmation in writing (provided, that Parent shall be entitled to make such a written request for reaffirmation only once for each Takeover Proposal and once for each material amendment to such Takeover Proposal), or (E) resolve or publicly propose to do any of the foregoing (any action described in this clause (i) being referred to herein as a “Company Adverse Recommendation Change”) or (ii) approve or recommend, or propose publicly to approve or recommend, or cause or permit to authorize the Company or any of its Affiliates Subsidiaries to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, agreement or commitment (other than an Acceptable Confidentiality Agreement) constituting, or that would reasonably be expected to lead to, any Takeover Proposal (a “Company Acquisition Agreement”). Parent shall be entitled to make a written request for reaffirmation of the type contemplated by Section 6.3(c)(i)(D) up to three (3) times in total and Parent shall not be entitled to make such a written request for reaffirmation if Parent has received from the Company a Notice of Adverse Recommendation Change and the applicable Notice Period with respect to such Notice of Adverse Recommendation Change has not ended.
(d) Notwithstanding anything Section 6.3(c), but subject to the contrary in this AgreementSection 6.3(e), at any time prior to obtaining the Company Shareholder ApprovalOffer Acceptance Time, the Company Board (or a duly authorized committee thereof) may make effect a Company Adverse Recommendation Change (and, solely with respect to a Superior Proposal, terminate this Agreement pursuant to Section 7.1(d)(ii8.1(d)(ii)), ) only if (i) (A) a Company Intervening Event has occurred or Takeover Proposal (B) the Company has received a Superior Proposal other than as a that did not result of from a breach of this Section 5.3 6.3) is made to the Company and not withdrawn and (other than immaterial breach), in each case, B) if the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its outside legal counselcounsel and financial advisors, that the failure to make a Company Adverse Recommendation Change as a result of the occurrence of such Company Intervening Event or in response to the receipt of such Superior Proposal, as the case may be, would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law and (ii) (A) the Company provides Parent prior written notice of its intent to make any Company Adverse Recommendation Change or terminate this Agreement pursuant to Section 7.1(d)(ii) at least four (4) Business Days prior to taking such action to the effect that, absent any modification to the terms and conditions of this Agreement, the Company Board has resolved to effect a Company Adverse Recommendation Change or to terminate this Agreement pursuant to Section 7.1(d)(ii), which notice shall specify the basis for such Company Adverse Recommendation Change or termination and attaching the most current draft of any Company Acquisition Agreement with respect to, the Superior Takeover Proposal (or, if no such draft exists, a summary of the material terms and conditions of such Superior Proposal), if applicable (a “Notice of Recommendation Change”) (it being understood that such Notice of Recommendation Change shall not in itself be deemed a Company Adverse Recommendation Change and that any change in price or material revision or amendment to the terms of constitutes a Superior Proposal, if applicableand, shall require a new notice to which the provisions of clauses (ii)(A), (B) and (C) of this Section 5.3(d) shall apply mutatis mutandis except that, in the case of such a new notice, all references to four (4) Business Days in this Section 5.3(d) shall be deemed to be two (2) Business Days); (B) during such four (4) Business Day period, if requested by Parent, the Company shall make its Representatives available to negotiate in good faith with Parent and its Representatives regarding any modifications to the terms and conditions of this Agreement that Parent proposes to make; and (C) at the end of such four (4) Business Day period and taking into account any modifications to the terms of this Agreement proposed by Parent, if any, in a written, binding and irrevocable offer, the Company Board determines in good faith (after consultation with outside legal counsel) , that the failure to make take such a Company Adverse Recommendation Change action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, or (ii) (A) if, other than in connection with a Takeover Proposal, there is or arises an event, fact, circumstance, development or occurrence (an “Intervening Event”) that affects the business assets or operations of the Company Board prior to the Offer Acceptance Time and that(B) the Company Board has concluded in good faith, following consultation with its outside legal counsel, that failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law.
(e) The Company Board shall not make a Company Adverse Recommendation Change or, with respect to a Superior Proposal, terminate this Agreement pursuant to Section 8.1(d)(ii), unless (i) the Company shall have first provided Parent written notice (“Notice of Adverse Recommendation Change”) of its intent to, as applicable, (x) terminate this Agreement to enter into a definitive acquisition agreement with respect to a Superior Proposal, which notice shall include the material terms and conditions of the transaction that constitutes such Superior Proposal, the identity of the party making such Superior Proposal, and copies of any proposed transaction agreements and related material documents with respect to such Superior Proposal, or (y) make a Company Adverse Recommendation Change in accordance with Section 6.3(d), which notice shall specify the details of an Intervening Event, if applicable, in each case of (x) and (y) at least four (4) Business Days prior to its taking such action (the “Notice Period”); and (ii) the Company shall have, and shall have caused its legal counsel and financial advisors to, negotiate with Parent and its Affiliates and Representatives during the Notice Period in good faith (to the extent Parent has requested to negotiate) to make such modifications to the terms and conditions of this Agreement (i) in the case of a Company Adverse Recommendation Change with respect to a Takeover Superior Proposal, so that this Agreement results in a transaction no less favorable to the stockholders of the Company than such Takeover Proposal still constitutes that was deemed a Superior Proposal and (ii) in the case of an Intervening Event, modification of this Agreement results in a transaction no less favorable to stockholders of the Company than the effect of the Intervening Event, in each case, as would enable Parent to proceed with the Transactions on such modified terms and, at the end of the Notice Period, after taking into account any such modified terms as may have been proposed by Parent since its receipt of such written notice, the Company Board shall have again in good faith made the determination referred to in clause (i)(B) or (ii) (B), as applicable, of Section 6.3(d). In the event of any material revision or amendment (including, for the avoidance of doubt, any change in price) to the terms of a Superior Proposal, the Company Board shall, in each case, make the determination referred to in clause (i)(B) or (ii)(B), as applicable, of Section 6.3(d), deliver a new Notice of Adverse Recommendation and commence a new Notice Period, and, in such case, all references to four (4) Business Days in this Section 6.3(e) shall be deemed to be two (2) Business Days.
(ef) Nothing contained in this Agreement shall prohibit the Company or the Company Board (or a duly authorized committee thereof) from (i) taking and disclosing to the shareholders stockholders of the Company a position contemplated by Rule 14e-2(a) under the Exchange Act or making a statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9 under the Exchange Act, (ii) making any disclosure to the shareholders stockholders of the Company if the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure to make such disclosure would be reasonably likely to be inconsistent with applicable Law, (iii) informing any Person of the existence of the provisions contained in this Section 5.3 6.3 or (iv) making any “stop, look and listen” communication to the shareholders stockholders of the Company pursuant to Rule 14d-9(f) under the Exchange Act; provided, however, that all actions taken or agreed to be taken by the Company or the Company Board or any committee thereof shall comply with the provisions of Section 6.3(a).
(fg) As used in this Agreement, “Takeover Proposal” shall mean any inquiry, proposal or offer (whether or not in writing) from any Person or group (as defined in Section 13(d) of the Exchange Act), other than Parent, Merger Sub Parent and any of its Affiliates thereofSubsidiaries) relating to, or that is reasonably expected to lead to, (i) any purchase or otherwise acquire, directly or indirectlyacquisition, in a single transaction or series of related transactions, of (aA) assets of the Company and or any of its Subsidiaries (including securities of Subsidiaries) that account for 15% or more of the Company’s consolidated assets or from which 15% or more of the Company’s revenues or earnings on a consolidated basis are derived or (bB) 15% or more of the outstanding Company Common Stock or 15% of the equity securities of any Subsidiary of the Company pursuant to a merger, consolidation or other business combination, sale or issuance of shares of capital stock, tender offer, share exchange, other business combination, recapitalization, liquidation, dissolution exchange offer or similar transaction involving or (ii) a tender offer or exchange offer that if consummated would result in any Person or “group” (as defined in Section 13(d) of the Exchange Act) beneficially owning more than 15% of the outstanding Company Common Stock or 15% of the equity securities of any Subsidiary of the Company or of any resulting parent company of the Company, in each case other than the MergerTransactions.
Appears in 2 contracts
Samples: Merger Agreement (Minerals Technologies Inc), Merger Agreement (Amcol International Corp)
No Solicitation; Change in Recommendation. (a) The 5.2.1 Except as expressly permitted by this Section 5.2, the Company agrees that it shall, and shall cause each of its Subsidiaries Affiliates and its and its Subsidiaries’ directors, officers and employees to, and shall use its reasonable best efforts to cause its other Representatives to, (i) immediately cease all existing any solicitation, encouragement, discussions or negotiations with any Person conducted heretofore Persons that may be ongoing with respect to any Takeover an Acquisition Proposal, immediately request and on the prompt return or destruction second Business Day after the date of all confidential information previously furnished and immediately terminate all physical and electronic data room access previously granted to any such Person or its Representatives. Except as otherwise provided in this Agreement, if not already done prior to the date of this Agreement, instruct any Person who entered into a confidentiality agreement with the Company that has not expired or been terminated in connection with any actual or potential Acquisition Proposal to return or destroy all such information or documents in accordance with the terms of such confidentiality agreement, (ii) release any third party from any standstill provision in any agreement to which the Company or any of its Subsidiaries is a party on the second Business Day after the date of this Agreement and (iii) from the date hereof until the earlier of the Effective Time or the dateor, if anyearlier, on which the termination of this Agreement is terminated pursuant to in accordance with Section 7.17, the Company shall not, and shall cause its Subsidiaries and its and its Subsidiaries’ directors, officers and employees not to, and shall use its reasonable best efforts to cause its other Representatives not to, directly or indirectly, (iA) solicit, initiate, knowingly encourage initiate or knowingly facilitate or knowingly encourage (including by way of furnishing non-public information) the submission of any Takeover Proposal inquiries regarding, or the making of any proposal or consummation thereof offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (iiB) enter intoother than informing Persons of the provisions contained in this Section 5.2, engage in, continue or otherwise participate in any discussions (except to notify such Person of the existence of the provisions of this Section 5.3) or negotiations regarding, or furnish to any other Person any non-public information in connection withwith or for the purpose of encouraging or facilitating, an Acquisition Proposal or (C) approve, recommend or enter into, or propose to approve, recommend or enter into, any Takeover letter of intent or similar document, agreement, commitment, or agreement in principle (whether written or oral, binding or nonbinding) with respect to, or take any action to support or in furtherance of, an Acquisition Proposal. Except to the extent necessary to take any actions that the Company or any third party would otherwise be permitted to take pursuant to this Section 5.2 (and in such case only in accordance with the terms hereof), (i) the Company and its Subsidiaries shall not release any third party from, or waive, amend or modify any provision of, or grant permission under, any confidentiality provision in any agreement to which the Company or any of its Subsidiaries is a party and (ii) the Company shall, and shall cause its Subsidiaries to, enforce the confidentiality provisions of any such agreement, and the Company shall, and shall cause its Subsidiaries to, immediately take all steps necessary to terminate any waiver that may have been heretofore granted, to any Person other than Parent or any of Parent’s Affiliates, under any such provisions. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 5.2 applicable to the Company by any of the Company’s Affiliates or any of its other Representatives to the extent acting on its behalf or at its instruction shall be deemed to be a breach of this Section 5.2 by the Company.
(b) 5.2.2 Notwithstanding anything to the contrary contained in Section 5.2.1 or any other provisions of this Agreement, if the Company or at any of its Subsidiaries, or any of its or their respective Representatives receives an unsolicited bona fide written Takeover Proposal made time from and after the date of this Agreement, Agreement and prior to the CompanyOffer Acceptance Time, the Company Board (or receives a duly authorized committee thereof) and the Company’s Representatives may engage in negotiations and discussions withbona fide unsolicited written Acquisition Proposal from any Person, or furnish under circumstances not involving any information and other access tobreach of this Section 5.2, any Person making such Takeover Proposal and any of its Representatives or potential sources of financing if the Company Board determines in good faith, after consultation with outside financial advisors and based on the Company’s advice of outside legal and financial advisorscounsel, that (x) such Takeover Acquisition Proposal is constitutes or could would reasonably be expected to lead to a Superior Proposal; provided that prior to engaging Proposal and (y) in any negotiations or discussions with, or furnishing any information to, any such Person or its Representatives, the Company and the Person making such Takeover Proposal shall have entered into an Acceptable Confidentiality Agreement. The Company will promptly (and in any event within the later of twenty-four (24) hours or 5:00 p.m. New York City time on the next Business Day) notify Parent in writing of the receipt light of such Takeover Acquisition Proposal, the material terms and conditions of any such Takeover Proposal and the identity of the Person making such Takeover Proposal. The Company will keep Parent informed in all material respects on a prompt basis (and in any event within the later of twenty-four (24) hours or 5:00 p.m. New York City time on the next Business Day) of the material terms and status of such Takeover Proposal (including any change in the price or any other material terms thereof). The Company shall not terminate, amend, modify, waive or fail to enforce any provision of any “standstill” or similar obligation of any Person unless the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure to take such action would reasonably be expected to be inconsistent with its constitute a violation of the Company Board’s fiduciary duties under applicable Law.
(c) Except as otherwise provided in this Agreement, neither then the Company Board nor any committee thereof shall (i)(A) withdrawmay, changedirectly or indirectly through its Representatives, qualify, withhold or modify, or publicly propose to withdraw, change, qualify, withhold or modify, in a manner adverse to Parent, the Company Board Recommendation, (B) adopt, approve or recommend, or publicly propose to adopt, approve or recommend, any Takeover Proposal, (C) fail to include in the Proxy Statement the Company Board Recommendation, (D) fail to recommend against any Takeover Proposal subject to Regulation 14D under the Exchange Act in any solicitation or recommendation statement made on Schedule 14D-9 within ten (10) Business Days after Parent so requests reaffirmation in writing (provided, that Parent shall be entitled to make such a written request for reaffirmation only once for each Takeover Proposal and once for each material amendment to such Takeover Proposal), or (E) resolve or publicly propose to do any of the foregoing (any action described in this clause (i) being referred furnish, pursuant to herein as a “an Acceptable Confidentiality Agreement, information (including non-public information) with respect to the Company Adverse Recommendation Change”and its Subsidiaries to the Person who has made such Acquisition Proposal; provided that the Company (1) or (ii) cause or permit shall not provide any non-public information concerning the Company or any of its Affiliates Subsidiaries to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, agreement or commitment (other than an Acceptable Confidentiality Agreement) constitutingsuch Person unless such non-public information has been previously provided to, or that would reasonably be expected to lead is substantially simultaneously provided to, Parent and (2) shall not provide to any Takeover Proposal (a “Company Acquisition Agreement”).
(d) Notwithstanding anything such Person any non-public information of or relating to the contrary in this AgreementParent, at HoldCo, Merger Sub or any time prior to obtaining the Company Shareholder Approval, the Company Board (of their respective Affiliates or a duly authorized committee thereof) may make a Company Adverse Recommendation Change (and, solely with respect to a Superior Proposal, terminate this Agreement pursuant to Section 7.1(d)(ii)), if (i) (A) a Company Intervening Event has occurred or (B) the Company has received a Superior Proposal other than Representatives except as a result of a breach of this Section 5.3 (other than immaterial breach), in each case, if the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure to make a Company Adverse Recommendation Change as a result of the occurrence of such Company Intervening Event or in response to the receipt of such Superior Proposal, as the case may be, would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law required by Law; and (ii) (A) engage in or otherwise participate in discussions or negotiations with the Company provides Parent prior written notice of its intent to make any Company Adverse Recommendation Change or terminate this Agreement pursuant to Section 7.1(d)(ii) at least four (4) Business Days prior to taking Person making such action to the effect that, absent any modification to the terms Acquisition Proposal regarding such Acquisition Proposal and conditions such Person’s Representatives. For purposes of this Agreement, “Acceptable Confidentiality Agreement” means a customary confidentiality agreement that contains provisions that are not materially less favorable to the Company, taken as a whole, than those contained in the Confidentiality Agreement (other than standstill restrictions), provided that such confidentiality agreement shall not prohibit compliance by the Company Board has resolved to effect a Company Adverse Recommendation Change or to terminate this Agreement pursuant to Section 7.1(d)(ii), which notice shall specify the basis for such Company Adverse Recommendation Change or termination and attaching the most current draft with any of any Company Acquisition Agreement with respect to, the Superior Proposal (or, if no such draft exists, a summary of the material terms and conditions of such Superior Proposal), if applicable (a “Notice of Recommendation Change”) (it being understood that such Notice of Recommendation Change shall not in itself be deemed a Company Adverse Recommendation Change and that any change in price or material revision or amendment to the terms of a Superior Proposal, if applicable, shall require a new notice to which the provisions of clauses (ii)(A), (B) and (C) of this Section 5.3(d) shall apply mutatis mutandis except that, in the case of such a new notice, all references to four (4) Business Days in this Section 5.3(d) shall be deemed to be two (2) Business Days); (B) during such four (4) Business Day period, if requested by Parent, the Company shall make its Representatives available to negotiate in good faith with Parent and its Representatives regarding any modifications to the terms and conditions of this Agreement that Parent proposes to make; and (C) at the end of such four (4) Business Day period and taking into account any modifications to the terms of this Agreement proposed by Parent, if any, in a written, binding and irrevocable offer, the Company Board determines in good faith (after consultation with outside legal counsel) that the failure to make such a Company Adverse Recommendation Change would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, and that, in the case of a Company Adverse Recommendation Change with respect to a Takeover Proposal, such Takeover Proposal still constitutes a Superior Proposal5.2.
(e) Nothing contained in this Agreement shall prohibit the Company or the Company Board (or a duly authorized committee thereof) from (i) taking and disclosing to the shareholders of the Company a position contemplated by Rule 14e-2(a) under the Exchange Act or making a statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9 under the Exchange Act, (ii) making any disclosure to the shareholders of the Company if the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure to make such disclosure would be reasonably likely to be inconsistent with applicable Law, (iii) informing any Person of the existence of the provisions contained in this Section 5.3 or (iv) making any “stop, look and listen” communication to the shareholders of the Company pursuant to Rule 14d-9(f) under the Exchange Act.
(f) As used in this Agreement, “Takeover Proposal” shall mean any inquiry, proposal or offer (whether or not in writing) from any Person (other than Parent, Merger Sub and any of its Affiliates thereof) to purchase or otherwise acquire, directly or indirectly, in a single transaction or series of related transactions, (a) assets of the Company and its Subsidiaries (including securities of Subsidiaries) that account for 15% or more of the Company’s consolidated assets or from which 15% or more of the Company’s revenues or earnings on a consolidated basis are derived or (b) 15% or more of the outstanding Company Common Stock pursuant to a merger, consolidation or other business combination, sale or issuance of shares of capital stock, tender offer, share exchange, other business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company, in each case other than the Merger.
Appears in 2 contracts
Samples: Merger Agreement (Steinhoff International Holdings N.V.), Merger Agreement (Mattress Firm Holding Corp.)
No Solicitation; Change in Recommendation. (a) The Except as expressly permitted by this Section 5.4, effective on the date of this Agreement, the Company agrees that it shall, and shall cause its Subsidiaries each Company Subsidiary and its Company Representative to, (i) immediately cease and its cause to be terminated any existing solicitation, encouragement, discussion or negotiation with any Third Party (other than Parent) that may be ongoing with respect to a Competing Proposal and (ii) request any such Third Party to promptly return or destroy all confidential information concerning the Company and the Company Subsidiaries’ directors.
(b) Except as expressly permitted by this Section 5.4, officers and employees tothe Company shall not, and shall use its reasonable best efforts to cause its other Representatives each Company Subsidiary and Company Representative not to, immediately cease at all existing discussions or negotiations with any Person conducted heretofore with respect to any Takeover Proposal, immediately request the prompt return or destruction of all confidential information previously furnished and immediately terminate all physical and electronic data room access previously granted to any such Person or its Representatives. Except as otherwise provided in this Agreement, times from the date of this Agreement until the earlier of the Effective Time or and the date, if any, on which this Agreement is terminated pursuant to Section 7.1, the Company shall not, and shall cause its Subsidiaries and its and its Subsidiaries’ directors, officers and employees not to, and shall use its reasonable best efforts to cause its other Representatives not toArticle 7, directly or indirectly, : (i) solicit, initiate, knowingly encourage or knowingly facilitate or knowingly encourage (including by providing non-public information) any Takeover Proposal inquiry, discussion, offer or the making request that constitutes, or consummation thereof or would reasonably be expected to lead to, a Competing Proposal, (ii) engage in, enter into, continue or otherwise participate in any discussions (except to notify such Person of the existence of the provisions of this Section 5.3) or negotiations regardingwith, or furnish any non-public information relating to any Person any information in connection with, any Takeover Proposal.
(b) Notwithstanding anything to the contrary contained in this Agreement, if the Company or any of its Subsidiariesthe Company Subsidiaries to, or any afford access to the books or records or officers of its or their respective Representatives receives an unsolicited bona fide written Takeover Proposal made after the date of this Agreement, the Company, the Company Board or the Company Subsidiaries to, any Third Party relating to any Competing Proposal or any proposal or offer that would reasonably be expected to lead to a Competing Proposal, (iii) approve, endorse, recommend, execute or a duly authorized committee thereofenter into, or publicly propose to approve, endorse, recommend, execute or enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar definitive Contract (other than an Acceptable Confidentiality Agreement) and with respect to any Competing Proposal (an “Alternative Acquisition Agreement”), (iv) take any action to make the provisions of any Takeover Statute (including Section 203 of the DGCL) or any applicable anti-takeover provision in the Company’s Representatives may engage in negotiations and discussions withorganizational documents inapplicable to any transactions contemplated by a Competing Proposal, (v) terminate, amend, release, modify or fail to enforce any provision of, or furnish grant any information and other access topermission, waiver or request under, any Person making such Takeover standstill, confidentiality or similar Contract entered into by the Company in respect of or in contemplation of a Competing Proposal and any of its Representatives or potential sources of financing if (other than to the extent the Company Board determines in good faith, after consultation with the Company’s outside its financial and legal and financial advisors, that failure to take any of such Takeover actions under this Section 5.4(b)(v) would be inconsistent with the directors’ fiduciary duties under applicable Law and is necessary to facilitate a Competing Proposal is in compliance with this Section 5.4) or could reasonably be expected (vi) propose, resolve or agree to lead do any of the foregoing.
(c) Notwithstanding anything to a Superior Proposal; provided that the contrary contained in Section 5.4(b), if, at any time prior to engaging in any negotiations or discussions withthe Acceptance Time, or furnishing any information to, any such Person or its Representatives, (i) the Company and the Person making such Takeover has received an unsolicited bona fide written Competing Proposal shall have entered into an Acceptable Confidentiality Agreement. The Company will promptly (and in any event within the later of twenty-four (24) hours or 5:00 p.m. New York City time on the next Business Day) notify Parent in writing of the receipt of such Takeover Proposal, the material terms and conditions from a Third Party that did not arise out of any such Takeover Proposal and the identity breach of the Person making such Takeover Proposal. The Company will keep Parent informed in all material respects on a prompt basis this Section 5.4, (and in any event within the later of twenty-four (24ii) hours or 5:00 p.m. New York City time on the next Business Day) of the material terms and status of such Takeover Proposal (including any change in the price or any other material terms thereof). The Company shall not terminate, amend, modify, waive or fail to enforce any provision of any “standstill” or similar obligation of any Person unless the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its outside financial and legal counseladvisors, that such Competing Proposal constitutes, or would reasonably be expected to lead to, a Superior Proposal and (iii) the Company Board determines in good faith, after consultation with its legal advisors, that failure to take such action would reasonably be expected to be inconsistent with its the directors’ fiduciary duties under applicable Law, then the Company may (x) furnish non-public information to such Third Party making the Competing Proposal and (y) engage in discussions or negotiations with such Third Party with respect to the Competing Proposal; provided, however, that (A) prior to so furnishing such information, the Company receives from the Third Party an executed Acceptable Confidentiality Agreement and (B) any material non-public information concerning the Company or the Company Subsidiaries provided or made available to any Third Party shall, to the extent not previously provided or made available to Parent or the Purchaser, be provided or made available to Parent or the Purchaser as promptly as reasonably practicable (and in no event later than 24 hours after it is provided or made available to such Third Party). Prior to taking any of the actions referred to in this Section 5.4(c), the Company shall notify Parent and the Purchaser orally and in writing that it proposes to furnish non-public information and/or enter into discussions or negotiations as provided in this Section 5.4(c), together with an unredacted copy of the Competing Proposal submitted by such Third Party.
(cd) Except as otherwise provided in expressly permitted by this AgreementSection 5.4(d), neither the Company Board nor any committee thereof shall (i)(Ai) withhold, withdraw, change, qualify, withhold qualify or modify, or publicly propose to withhold, withdraw, change, qualify, withhold qualify or modify, in a manner adverse to ParentParent or the Purchaser, the Company Board Recommendation, (Bii) fail to include the Company Board Recommendation in the Schedule 14D-9 or the Proxy Statement, (iii) if a tender offer or exchange offer for shares of capital stock of the Company that constitutes a Competing Proposal is commenced, fail to publicly recommend against acceptance of such tender offer or exchange offer by the stockholders of the Company (including, for these purposes, by taking no position with respect to the acceptance of such tender offer or exchange offer by the stockholders of the Company, which shall constitute a failure to recommend against acceptance of such tender offer or exchange offer) within 10 Business Days after commencement thereof or fail to reaffirm the Company Board Recommendation within four Business Days after Parent so requests in writing, (iv) adopt, approve or recommend, or publicly propose to adopt, approve or recommend, any Takeover Proposal, Competing Proposal made or received after the date of this Agreement (C) fail to include in the Proxy Statement the Company Board Recommendation, (D) fail to recommend against any Takeover Proposal subject to Regulation 14D under the Exchange Act in any solicitation or recommendation statement made on Schedule 14D-9 within ten (10) Business Days after Parent so requests reaffirmation in writing (provided, that Parent shall be entitled to make such a written request for reaffirmation only once for each Takeover Proposal and once for each material amendment to such Takeover Proposal), or (E) resolve or publicly propose to do any of the foregoing (any action actions described in this clause clauses (i) being referred to herein as a through (iv) of this Section 5.4(d), an “Company Adverse Recommendation Change”) or (iiv) cause or permit the Company or any of its Affiliates Company Subsidiary to execute or enter into, into any letter of intent, memorandum of understanding, agreement in principle, agreement or commitment (other than an Acceptable Confidentiality Agreement) constituting, or that would reasonably be expected to lead to, any Takeover Proposal (a “Company Alternative Acquisition Agreement”).
(d) . Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Company Shareholder ApprovalAcceptance Time, the Company Board (or a duly authorized committee thereof) may make a Company shall be permitted to effect any Adverse Recommendation Change described in clause (andi) of such definition or otherwise terminate this Agreement to concurrently enter into a definitive Alternative Acquisition Agreement, in each case solely with respect to a Superior Proposal, terminate this Agreement subject in each case to compliance with Section 5.4(e) and the concurrent payment of any amount owed Parent pursuant to Section 7.1(d)(ii)), if (i) (A) a Company Intervening Event has occurred or (B) the Company has received a Superior Proposal other than as a result of a breach of this Section 5.3 (other than immaterial breach), in each case7.2, if the Company Board (or A) has received a duly authorized committee thereofbona fide written Competing Proposal that the Company Board determines in good faith, after consultation with its financial and legal advisors, constitutes a Superior Proposal, after having complied with, and giving effect to all of the adjustments which may be offered by Parent and the Purchaser pursuant to Section 5.4(e) and (B) determines in good faith, after consultation with its outside legal counseladvisors, that the failure to make a Company Adverse Recommendation Change as a result of the occurrence of take such Company Intervening Event or in response to the receipt of such Superior Proposal, as the case may be, action would reasonably be expected to be inconsistent with its the directors’ fiduciary duties under applicable Law and Law.
(iie) (A) the Company provides Parent prior written notice of its intent to make any Company Adverse Recommendation Change or terminate this Agreement pursuant to Section 7.1(d)(ii) at least four (4) Business Days prior to taking such action to the effect that, absent any modification to the terms and conditions of this Agreement, the The Company Board has resolved shall not be entitled to effect a Company an Adverse Recommendation Change or to terminate this Agreement pursuant to Section 7.1(d)(ii), which notice shall specify the basis for such Company Adverse Recommendation Change or termination and attaching the most current draft of any Company Acquisition Agreement with respect to, the to a Superior Proposal unless (or, if no such draft exists, a summary of i) the material terms and conditions of Company has not breached this Section 5.4 in any respect as relates to such Superior Proposal), if applicable (ii) the Company has provided written notice (a “Notice of Recommendation ChangeSuperior Proposal”) to Parent and the Purchaser that the Company intends to take such action, which notice includes an unredacted copy of the Superior Proposal that is the basis of such action (it being understood that including the identity of the Third Party making the Superior Proposal) and copies of all relevant documents relating to such Notice of Recommendation Change shall not in itself be deemed a Company Adverse Recommendation Change and that any change in price or material revision or amendment to the terms of a Superior Proposal, if applicable, shall require a new notice to which (iii) during the provisions of clauses (ii)(A), (B) and (C) of this Section 5.3(d) shall apply mutatis mutandis except that, in the case of such a new notice, all references to four (4) Business Days in this Section 5.3(d) shall be deemed to be two (2) Business Days); (B) during such four (4) Business Day period, if requested by period following Parent’s and the Purchaser’s receipt of the Notice of Superior Proposal, the Company shall, and shall make its cause the Company Representatives available to to, negotiate with Parent and the Purchaser in good faith with (to the extent Parent and its Representatives regarding any modifications the Purchaser desire to negotiate) to make such adjustments in the terms and conditions of this Agreement so that Parent proposes such Superior Proposal would cease to make; constitute a Superior Proposal and (Civ) at following the end of such the four (4) Business Day period Days period, the Company Board shall have determined in good faith, after consultation with its financial and legal advisors, taking into account any modifications changes to the terms of this Agreement proposed in writing by ParentParent and the Purchaser in response to the Notice of Superior Proposal or otherwise, if anythat the Superior Proposal giving rise to the Notice of Superior Proposal continues to constitute a Superior Proposal. Any amendment to the financial terms or any other material amendment of such Superior Proposal shall require a new Notice of Superior Proposal and the Company shall be required to comply again with the requirements of this Section 5.4(e); provided, in however, that for purposes of this sentence, references to the four Business Days period above shall be deemed to be references to a written, binding two Business Days period.
(f) From and irrevocable offerafter the date of this Agreement, the Company Board determines shall promptly (and in good faith (after consultation with outside legal counsel) any event within 24 hours), notify Parent in the event that the failure Company, any Company Subsidiary or any Company Representative receives (i) any Competing Proposal or indication by any Person that it is considering making a Competing Proposal, (ii) any request for non-public information relating to make the Company or any Company Subsidiary other than requests for information in the ordinary course of business consistent with past practice and unrelated to a Competing Proposal or (iii) any inquiry or request for discussions or negotiations regarding any Competing Proposal. In connection with such notice, the Company shall indicate the identity of such Person or group of Persons and shall provide a copy of such Competing Proposal, indication, inquiry or request (or, where no such copy is available, a reasonably detailed description of such Competing Proposal, indication, inquiry or request), including any modifications thereto. Thereafter, the Company Adverse Recommendation Change would shall keep Parent reasonably be expected to be inconsistent with its fiduciary duties under applicable Lawinformed (orally and in writing) on a current basis (and in any event at Parent’s request and otherwise no later than 24 hours after the occurrence of any material changes, developments, discussions or negotiations) of the status of any Competing Proposal, indication, inquiry or request (including the terms and conditions thereof and of any modification thereto), and thatany material developments, in the case discussions and negotiations, including furnishing copies of a Company Adverse Recommendation Change with respect to a Takeover Proposalany written inquiries, such Takeover Proposal still constitutes a Superior Proposalcorrespondence and draft documentation, and written summaries of any material oral inquiries or discussions.
(eg) Nothing contained in this Agreement shall prohibit the Company or the Company Board (Board, directly or a duly authorized committee thereof) indirectly through the Company Representatives, from (i) taking and disclosing to the shareholders of the Company Company’s stockholders a position contemplated with respect to a tender or exchange offer by a Third Party pursuant to Rule 14e-2(a) 14d-9 or Rule 14e-2 under the Exchange Act or making a statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9 under the Exchange Act, (ii) making any disclosure to the shareholders of the Company if the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure to make such disclosure would be reasonably likely to be inconsistent with applicable Law, (iii) informing any Person of the existence of the provisions contained in this Section 5.3 or (iv) making any “stop, look and listen” communication to the shareholders of the Company Company’s stockholders pursuant to Rule 14d-9(f) under the Exchange ActAct if the Company Board has determined in good faith, after consultation with its legal advisors, that the failure to do so would breach the directors’ fiduciary duties under applicable Law; provided, however, that any disclosures permitted under Section 5.4(g)(i) that is not an express rejection of any applicable Competing Proposal or an express reaffirmation of the Company Board’s recommendation in favor of the transactions contemplated by this Agreement shall be deemed an Adverse Recommendation Change.
(fh) As used The Company agrees that any violation of the restrictions set forth in this Agreement, “Takeover Proposal” shall mean Section 5.4 by any inquiry, proposal or offer (whether or not in writing) from any Person (other than Parent, Merger Sub and any of its Affiliates thereof) to purchase or otherwise acquire, directly or indirectly, in a single transaction or series of related transactions, (a) assets of the Company and its Subsidiaries Representatives shall be deemed to be a material breach of this Agreement (including securities of Subsidiariesthis Section 5.4) that account for 15% or more of by the Company’s consolidated assets or from which 15% or more .
(i) For purposes of the Company’s revenues or earnings on a consolidated basis are derived or (b) 15% or more of the outstanding Company Common Stock pursuant to a merger, consolidation or other business combination, sale or issuance of shares of capital stock, tender offer, share exchange, other business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company, in each case other than the Merger.this Agreement:
Appears in 2 contracts
Samples: Merger Agreement (Interclick, Inc.), Merger Agreement (Yahoo Inc)
No Solicitation; Change in Recommendation. (a) The Company agrees that it shall, and shall cause its Subsidiaries and its and its Subsidiaries’ directors, officers and employees to, and shall use its reasonable best efforts to cause its other Representatives to, immediately cease all existing discussions or negotiations with any Person conducted heretofore with respect to any Takeover Proposal, immediately request the prompt return or destruction of all confidential information previously furnished and immediately terminate all physical and electronic data room access previously granted to any such Person or its Representatives. Except as otherwise provided in this Agreement, from the date of this Agreement until the earlier of the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 7.1, the Company shall not, and shall cause its Subsidiaries and its and its Subsidiaries’ directors, officers and employees not to, and shall use its reasonable best efforts to cause its other Representatives not to, directly or indirectly, (i) solicit, initiate, knowingly encourage or knowingly facilitate any Takeover Proposal or the making or consummation thereof or (ii) enter into, or otherwise participate in any discussions (except to notify such Person of the existence of the provisions of this Section 5.3) or negotiations regarding, or furnish to any Person any information in connection with, any Takeover Proposal.
(b) Notwithstanding anything to the contrary contained in this Agreement, if the Company or any of its Subsidiaries, or any of its or their respective Representatives receives an unsolicited bona fide written Takeover Proposal made after the date of this Agreement, the Company, the Company Board (or a duly authorized committee thereof) and the Company’s Representatives may engage in negotiations and discussions with, or furnish any information and other access to, any Person making such Takeover Proposal and any of its Representatives or potential sources of financing if the Company Board determines in good faith, after consultation with the Company’s outside legal and financial advisors, that such Takeover Proposal is or could reasonably be expected to lead to a Superior Proposal; provided that prior to engaging in any negotiations or discussions with, or furnishing any information to, any such Person or its Representatives, the Company and the Person making such Takeover Proposal shall have entered into an Acceptable Confidentiality Agreement. The Company will promptly (and in any event within the later of twenty-four (24) hours or 5:00 p.m. New York City time on the next Business Day) notify Parent in writing of the receipt of such Takeover Proposal, the material terms and conditions of any such Takeover Proposal and the identity of the Person making such Takeover Proposal. The Company will keep Parent informed in all material respects on a prompt basis (and in any event within the later of twenty-four (24) hours or 5:00 p.m. New York City time on the next Business Day) of the material terms and status of such Takeover Proposal (including any change in the price or any other material terms thereof). The Company shall not terminate, amend, modify, waive or fail to enforce any provision of any “standstill” or similar obligation of any Person unless the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law.
(c) Except as otherwise provided in this Agreement, neither the Company Board nor any committee thereof shall (i)(A) withdraw, change, qualify, withhold or modify, or publicly propose to withdraw, change, qualify, withhold or modify, in a manner adverse to Parent, the Company Board Recommendation, (B) adopt, approve or recommend, or publicly propose to adopt, approve or recommend, any Takeover Proposal, (C) fail to include in the Proxy Statement the Company Board Recommendation, (D) fail to recommend against any Takeover Proposal subject to Regulation 14D under the Exchange Act in any solicitation or recommendation statement made on Schedule 14D-9 within ten (10) Business Days after Parent so requests reaffirmation in writing (provided, that Parent shall be entitled to make such a written request for reaffirmation only once for each Takeover Proposal and once for each material amendment to such Takeover Proposal), or (E) resolve or publicly propose to do any of the foregoing (any action described in this clause (i) being referred to herein as a “Company Adverse Recommendation Change”) or (ii) cause or permit the Company or any of its Affiliates to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, agreement or commitment (other than an Acceptable Confidentiality Agreement) constituting, or that would reasonably be expected to lead to, any Takeover Proposal (a “Company Acquisition Agreement”).
(d) Notwithstanding anything to the contrary in this Agreement, at any time prior to obtaining the Company Shareholder Approval, the Company Board (or a duly authorized committee thereof) may make a Company Adverse Recommendation Change (and, solely with respect to a Superior Proposal, terminate this Agreement pursuant to Section 7.1(d)(ii)), if (i) (A) a Company Intervening Event has occurred or (B) the Company has received a Superior Proposal other than as a result of a breach of this Section 5.3 (other than immaterial breach), in each case, if the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure to make a Company Adverse Recommendation Change as a result of the occurrence of such Company Intervening Event or in response to the receipt of such Superior Proposal, as the case may be, would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law and (ii) (A) the Company provides Parent prior written notice of its intent to make any Company Adverse Recommendation Change or terminate this Agreement pursuant to Section 7.1(d)(ii) at least four (4) Business Days prior to taking such action to the effect that, absent any modification to the terms and conditions of this Agreement, the Company Board has resolved to effect a Company Adverse Recommendation Change or to terminate this Agreement pursuant to Section 7.1(d)(ii), which notice shall specify the basis for such Company Adverse Recommendation Change or termination and attaching the most current draft of any Company Acquisition Agreement with respect to, the Superior Proposal (or, if no such draft exists, a summary of the material terms and conditions of such Superior Proposal), if applicable (a “Notice of Recommendation Change”) (it being understood that such Notice of Recommendation Change shall not in itself be deemed a Company Adverse Recommendation Change and that any change in price or material revision or amendment to the terms of a Superior Proposal, if applicable, shall require a new notice to which the provisions of clauses (ii)(A), (B) and (C) of this Section 5.3(d) shall apply mutatis mutandis except that, in the case of such a new notice, all references to four (4) Business Days in this Section 5.3(d) shall be deemed to be two (2) Business Days); (B) during such four (4) Business Day period, if requested by Parent, the Company shall make its Representatives available to negotiate in good faith with Parent and its Representatives regarding any modifications to the terms and conditions of this Agreement that Parent proposes to make; and (C) at the end of such four (4) Business Day period and taking into account any modifications to the terms of this Agreement proposed by Parent, if any, in a written, binding and irrevocable offer, the Company Board determines in good faith (after consultation with outside legal counsel) that the failure to make such a Company Adverse Recommendation Change would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, and that, in the case of a Company Adverse Recommendation Change with respect to a Takeover Proposal, such Takeover Proposal still constitutes a Superior Proposal.
(e) Nothing contained in this Agreement shall prohibit the Company or the Company Board (or a duly authorized committee thereof) from (i) taking and disclosing to the shareholders of the Company a position contemplated by Rule 14e-2(a) under the Exchange Act or making a statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9 under the Exchange Act, (ii) making any disclosure to the shareholders of the Company if the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure to make such disclosure would be reasonably likely to be inconsistent with applicable Law, (iii) informing any Person of the existence of the provisions contained in this Section 5.3 or (iv) making any “stop, look and listen” communication to the shareholders of the Company pursuant to Rule 14d-9(f) under the Exchange Act.
(f) As used in this Agreement, “Takeover Proposal” shall mean any inquiry, proposal or offer (whether or not in writing) from any Person (other than Parent, Merger Sub and any of its Affiliates thereof) to purchase or otherwise acquire, directly or indirectly, in a single transaction or series of related transactions, (a) assets of the Company and its Subsidiaries (including securities of Subsidiaries) that account for 15% or more of the Company’s consolidated assets or from which 15% or more of the Company’s revenues or earnings on a consolidated basis are derived or (b) 15% or more of the outstanding Company Common Stock pursuant to a merger, consolidation or other business combination, sale or issuance of shares of capital stock, tender offer, share exchange, other business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company, in each case other than the Merger.four
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement
No Solicitation; Change in Recommendation. (a) The Company agrees that it shall, and shall cause its Subsidiaries and its and its Subsidiaries’ respective directors, officers and employees to, and shall use its reasonable best efforts to cause its other Representatives to, immediately cease all existing discussions or negotiations with any Person conducted heretofore with respect to any Takeover Proposal, immediately request the prompt return or destruction of all confidential information previously furnished and immediately terminate all physical and electronic data room access previously granted to any such Person or its Representatives. Except as otherwise provided in this Agreement, from the date of this Agreement until the earlier of the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 7.1, the Company shall not, and shall cause its Subsidiaries and its and its Subsidiaries’ respective directors, officers and employees not to, and shall use its reasonable best efforts to cause its other Representatives not to, directly or indirectly, (i) solicit, initiate, knowingly encourage or knowingly facilitate any Takeover Proposal or the making or consummation thereof or (ii) enter into, or otherwise participate in any discussions (except to notify such Person of the existence of the provisions of this Section 5.3) or negotiations regarding, or furnish to any Person any non-public material information in connection with, any Takeover Proposal.
(b) Notwithstanding anything to the contrary contained in this Agreement, if the Company or any of its Subsidiaries, or any of its or their respective Representatives receives an unsolicited bona fide written Takeover Proposal made after the date of this AgreementAgreement and prior to receipt of the Company Shareholder Approval, the Company, the Company Board (or a duly authorized committee thereof) and the Company’s Representatives may engage in negotiations and discussions with, or furnish any information and other access to, any Person making such Takeover Proposal and any of its Representatives or potential sources of financing if the Company Board determines in good faith, after consultation with the Company’s outside legal and financial advisors, that such Takeover Proposal is or could reasonably be expected to lead to a Superior ProposalProposal and that failure to take such actions would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law; provided that prior to engaging in any negotiations or discussions with, or furnishing any non-public information to, any such Person or its Representatives, the Company and the Person making such Takeover Proposal shall have entered into an Acceptable Confidentiality Agreement. The Company will promptly (and in any event within the later of twenty-four (24) hours or and 5:00 p.m. New York Salt Lake City time on the next Business Day) notify Parent in writing of the receipt of such Takeover Proposal, Proposal and the material terms and conditions of any such Takeover Proposal and Proposal, including the identity of the Person making such Takeover Proposal. The Company will keep Parent promptly informed in all material respects on a prompt basis (and in any event within the later of twenty-four (24) hours or and 5:00 p.m. New York Salt Lake City time on the next Business Day) in all material respects of the material terms and status of and material communications relating to such Takeover Proposal (including any change in the price or any other material terms thereof). The Company shall not terminate, amend, modify, waive or fail to enforce any provision of any “standstill” or similar obligation of any Person unless the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law.
(c) Except as otherwise provided in this Agreement, neither the Company Board nor any committee thereof shall (i)(A) withdraw, change, qualify, withhold or modify, or publicly propose to withdraw, change, qualify, withhold or modify, in a manner adverse to Parent, the Company Board Recommendation, (B) adopt, approve or recommend, or publicly propose to adopt, approve or recommend, any Takeover Proposal, (C) fail to include the Company Board Recommendation in the Proxy Statement the Company Board Recommendation, or (D) fail to recommend against any Takeover Proposal subject to Regulation 14D under the Exchange Act in any solicitation or recommendation statement made on Schedule 14D-9 within ten (10) Business Days after Parent so requests reaffirmation in writing (provided, that Parent shall be entitled to make such a written request for reaffirmation only once for each Takeover Proposal and once for each material amendment to such Takeover Proposal), or (E) resolve or publicly propose to do any of the foregoing (any action described in this clause (i) being referred to herein as a “Company Adverse Recommendation Change”) or (ii) cause or permit the Company or any of its Affiliates to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, agreement or commitment (other than an Acceptable Confidentiality Agreement) constituting, or that would reasonably be expected to lead to, any Takeover Proposal (a “Company Acquisition Agreement”).
(d) Notwithstanding anything to the contrary in this Agreement, at any time prior to obtaining the Company Shareholder Approval, the Company Board (or a duly authorized committee thereof) may make a Company Adverse Recommendation Change (and, solely with respect to a Superior Proposal, terminate this Agreement pursuant to Section 7.1(d)(ii)), if (i) (A) a Company Intervening Event has occurred or (B) the Company has received a Superior Proposal other than as a result of a breach of this Section 5.3 (other than immaterial breach), in each case, if the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure to make a Company Adverse Recommendation Change as a result of the occurrence of such Company Intervening Event or in response to the receipt of such Superior Proposal, as the case may be, would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law and (ii) (A) the Company provides Parent prior written notice of its intent to make any Company Adverse Recommendation Change or terminate this Agreement pursuant to Section 7.1(d)(ii) at least four (4) Business Days prior to taking such action to the effect that, absent any modification to the terms and conditions of this Agreement, the Company Board has resolved to effect a Company Adverse Recommendation Change or to terminate this Agreement pursuant to Section 7.1(d)(ii), which notice shall specify the basis for such Company Adverse Recommendation Change or termination and attaching the most current draft of any Company Acquisition Agreement and any other material documents with respect to, the Superior Proposal (or, if no such draft exists, a summary of the material terms and conditions of such Superior Proposal), if applicable (a “Notice of Recommendation Change”) (it being understood that such Notice of Recommendation Change shall not in itself be deemed a Company Adverse Recommendation Change and that any change in price or material revision or amendment to the terms of a Superior Proposal, if applicable, shall require a new notice to which the provisions of clauses (ii)(A), (B) and (C) of this Section 5.3(d) shall apply mutatis mutandis except that, in the case of such a new notice, all references to four (4) Business Days in this Section 5.3(d) shall be deemed to be two (2) Business Days); (B) during such four (4) Business Day period, if requested by Parent, the Company shall make its Representatives reasonably available to negotiate in good faith with Parent and its Representatives regarding any modifications to the terms and conditions of this Agreement that Parent proposes to make; and (C) at the end of such four (4) Business Day period and taking into account any modifications to the terms of this Agreement proposed by Parent, if any, Parent to the Company in a written, binding and irrevocable offer, the Company Board determines in good faith (after consultation with outside legal counsel) that the failure to make such a Company Adverse Recommendation Change would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, and that, in the case of a Company Adverse Recommendation Change with respect to a Takeover Proposal, such Takeover Proposal still constitutes a Superior Proposal.
(e) Nothing contained in this Agreement shall prohibit the Company or the Company Board (or a duly authorized committee thereof) from (i) taking and disclosing to the shareholders of the Company a position contemplated by Rule 14e-2(a) under the Exchange Act or making a statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9 under the Exchange Act, (ii) making any disclosure to the shareholders of the Company if the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure to make such disclosure would be reasonably likely to be inconsistent with applicable Law, (iii) informing any Person of the existence of the provisions contained in this Section 5.3 or (iv) making any “stop, look and listen” communication to the shareholders of the Company pursuant to Rule 14d-9(f) under the Exchange ActAct (or any similar communication to the shareholders of the Company). No disclosures under this Section 5.3(e) shall be, in themselves, a breach of Section 5.3 or a basis for Parent to terminate this Agreement pursuant to Article VII.
(f) As used in this Agreement, “Takeover Proposal” shall mean any bona fide inquiry, proposal or offer (whether or not in writing) from any Person (other than Parent, Merger Sub and any of its Affiliates thereof) to purchase or otherwise acquire, directly or indirectly, in a single transaction or series of related transactions, (a) assets of the Company and its Subsidiaries (including securities of Subsidiaries) that account for 15% or more of the Company’s consolidated assets or from which 15% or more of the Company’s revenues or earnings on a consolidated basis are derived or (b) 15% or more of the outstanding Company Common Stock pursuant to a merger, consolidation or other business combination, sale or issuance of shares of capital stock, tender offer, share exchange, other business combination, recapitalization, liquidation, dissolution recapitalization or similar transaction involving the Company, in each case other than the Merger.
Appears in 2 contracts
Samples: Merger Agreement (Questar Corp), Merger Agreement (Dominion Resources Inc /Va/)
No Solicitation; Change in Recommendation. (a) The Company agrees that it and the Company Subsidiaries shall, and shall use reasonable best efforts to cause its Subsidiaries and its and its Subsidiaries’ their respective directors, officers and employees to, and shall use instruct its reasonable best efforts to cause its other Representatives to, immediately cease all existing discussions or negotiations with any Person conducted heretofore with respect to any Takeover Proposal, immediately or any existing discussion that could reasonably be expected to lead to a Takeover Proposal, and the Company further agrees that it shall request the prompt return or destruction of that all confidential non-public information previously furnished provided by or on behalf of the Company or any Company Subsidiary to any such Persons be promptly returned or destroyed in accordance with the terms of the applicable confidentiality agreement and immediately terminate all physical shall prohibit access for anyone other than the Company, Parent, Holdings, Merger Sub LLC, Merger Sub and their respective Representatives to any electronic data room access previously granted to any such Person or its Representativesof the Company in connection therewith. Except as otherwise provided in this Agreement, from the date of this Agreement until the earlier of the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 7.1, the Company shall not, and shall use reasonable best efforts to cause the Company Subsidiaries not to, and shall use reasonable best efforts to cause its Subsidiaries and its and its Subsidiaries’ their respective directors, officers and employees not to, and shall use direct its reasonable best efforts to cause its other Representatives not to, directly or indirectly, (i) solicit, initiate, knowingly encourage or knowingly facilitate any inquiries, proposals or offers that constitute, or that could reasonably be expected to lead to, a Takeover Proposal or the making or consummation thereof or thereof, (ii) engage in, enter into, continue or otherwise participate in any substantive discussions (except to notify such Person of the existence of the provisions of this Section 5.35.2) or negotiations regarding, or furnish to any Person any non-public material information in connection withwith or for the purpose of encouraging or facilitating, any Takeover Proposal or any inquiry, proposal or offer that could reasonably be expected to lead to a Takeover Proposal, (iii) enter into any letter of intent, agreement, contract, commitment or agreement in principle with respect to a Takeover Proposal (other than an Acceptable Confidentiality Agreement) or enter into any agreement, contract or commitment requiring the Company to abandon, terminate or fail to consummate the Transactions, or (iv) authorize, permit, or direct any Representative of the Company or any of the Company Subsidiaries to take any action set forth in clauses (i), (ii) or (iii) of this Section 5.2(a).
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the date that the Company Stockholder Approval is obtained, the Company or any of its the Company Subsidiaries, or any of its or their respective Representatives receives an unsolicited bona fide written Takeover Proposal made after the date of this AgreementProposal, the Company, the Company Board (or a duly authorized committee thereof) and the Company’s Representatives may engage in negotiations and discussions with, or furnish any information and other access to, any Person making such Takeover Proposal and any of its Representatives or potential sources of financing if which the Company Board determines in good faith, after consultation with the Company’s outside legal and financial advisors, that such Takeover Proposal is or could reasonably be expected to lead to a Superior Proposal; provided that prior to engaging , the Company, the Company Board (or a duly authorized committee thereof) and their Representatives may engage in any negotiations or and discussions with, or furnish any information and other access to any Person making such Takeover Proposal and any of its Representatives (provided that substantially concurrently (and in any event within 24 hours) the Company makes available to Parent such information or access to the extent such information or access was not previously made available to Parent); provided that (i) prior to furnishing any material non-public information to, to any such Person or its RepresentativesPerson, the Company and receives from the Person making such Takeover Proposal shall have entered into an Acceptable Confidentiality Agreement to the extent such Person is not already subject to a confidentiality agreement with the Company, (ii) the Company Board determines in good faith, after consultation with outside legal counsel, that a failure to furnish such information or access would be inconsistent with the fiduciary duties of the Company Board under applicable Law, and (iii) the Company provides written notice to Parent immediately after any such determination by the Company Board and before taking any of the actions described in this sentence. In addition, from and after the date of this Agreement. The , the Company will promptly (and but in any event within the later of twenty-four (24) hours or 5:00 p.m. New York City time on the next Business Day24 hours) notify Parent in writing of the receipt of such Takeover ProposalProposal and (A) if it is in writing, deliver to Parent a copy of such Takeover Proposal and any related draft agreements and other written material relating to such Takeover Proposal or (B) if oral, communicate to Parent the material terms and conditions of any such Takeover Proposal and thereof, including, in each case, the identity of the Person making such Takeover Proposal. The Company will keep Parent informed in all material respects reasonably apprised on a prompt reasonably timely basis (and in any event within the later of twenty-four (24) hours or 5:00 p.m. New York City time on the next Business Day) of the status and material terms and status of such Takeover Proposal (including and with respect to any change in the price or any other material terms thereof)thereof within 24 hours of such material change. The From and after the date hereof, the Company shall not terminate, amend, modify, waive or fail to enforce any provision of any “standstill” or similar obligation of any Person Person, unless the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law; provided, however, that any such termination, amendment, modification, waiver or failure to enforce any provision of any such “standstill” may occur only at the initiation and request of the third party thereto.
(c) Except as otherwise provided in this Agreement, neither the Company Board nor any committee thereof shall not (i)(Ai) withhold, withdraw, change, qualify, withhold amend or modify, or publicly propose to withhold, withdraw, change, qualify, withhold amend or modify, in a manner adverse to Parent, Holdings, Merger Sub LLC or Merger Sub, the Company Board RecommendationRecommendation (including any failure to include the Company Board Recommendation in the Proxy Statement), (Bii) adoptapprove, approve endorse or recommend, or publicly propose to adoptapprove, approve endorse or recommend, any recommend to the stockholders of the Company a Takeover Proposal, (Ciii) fail to include in the Proxy Statement the Company Board Recommendation, (D) fail to publicly recommend against acceptance of any Takeover Proposal subject to Regulation 14D under tender offer or exchange offer for the Exchange Act in any solicitation or recommendation statement made on Schedule 14D-9 Shares within ten (10) Business Days after commencement of such offer or against any Takeover Proposal (provided that a “stop, look and listen” communication by the Company Board to the stockholders of the Company pursuant to Rule 14d-9(f) of the Exchange Act shall not be deemed to be a Company Adverse Recommendation Change unless and until the Company Board fails to reconfirm the Company Board Recommendation by the close of business on the tenth (10th) Business Days following the commencement of a tender offer or exchange offer), (iv) other than with respect to the period of up to ten (10) Business Days applicable to tender offer or exchange offers that are the subject of the preceding clause (iii), fail to publicly reaffirm the Company Board Recommendation, in each case, within five (5) Business Days after Parent so requests reaffirmation in writing writing, (provided, that Parent shall be entitled to make such v) enter into any definitive agreement providing for a written request for reaffirmation only once for each Takeover Proposal and once for each material amendment to such Takeover Proposal), or (Evi) resolve or publicly propose to do any of the foregoing (take any action described in this clause the foregoing clauses (i) through (v) (each of the foregoing actions described in clauses (i) through (v) being referred to herein as a “Company Adverse Recommendation Change”) or (ii) cause or permit the Company or any of its Affiliates to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, agreement or commitment (other than an Acceptable Confidentiality Agreement) constituting, or that would reasonably be expected to lead to, any Takeover Proposal (a “Company Acquisition Agreement”).
(d) Notwithstanding anything to the contrary in this Agreement, at any time prior to obtaining the Company Shareholder Approval, the Company Board (or a duly authorized committee thereof) may may: (i) make a Company Adverse Recommendation Change (and, solely with respect in response to a Superior Proposal, terminate this Agreement pursuant to Section 7.1(d)(ii)), if (i) (A) a Company Intervening Event has occurred or (B) the Company has received a Superior receiving an unsolicited Takeover Proposal other than as a result of a breach of this Section 5.3 (other than immaterial breach), in each case, if that the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its financial advisor and outside legal counsel, constitutes a Superior Proposal; or (ii) if the Company has complied (other than immaterial breaches) with this Section 5.2, cause the Company to terminate this Agreement and, prior to or substantially concurrently with such termination, cause the Company to enter into a definitive written agreement providing for such Superior Proposal, if, and only if, in all cases the Company Board determines in good faith, after consulting with and receiving advice from outside counsel, that the failure to make (1) effect a Company Adverse Recommendation Change as or (2) terminate this Agreement and enter into a result of the occurrence of such Company Intervening Event or in response to the receipt of such definitive written agreement providing for a Superior Proposal, as the case may be, would reasonably be expected likely to be inconsistent with its fiduciary duties under applicable Law Law.
(e) Subject to Section 5.2(d), (i) no Company Adverse Recommendation Change may be made in response to a Superior Proposal and (ii) no termination of this Agreement in accordance with Section 5.2(d) may be made unless: (A) the Company complies in all material respects with this Section 5.2, (B) the Company provides Parent prior written notice of its intent to make any Company Adverse Recommendation Change or terminate this Agreement pursuant to Section 7.1(d)(ii5.2(d) at least four three (43) Business Days prior to taking such action to the effect that, absent any modification to the terms and conditions of this Agreement, the (a “Company Board has resolved to effect a Company Adverse Recommendation Change or to terminate this Agreement pursuant to Section 7.1(d)(iiNotice”), which notice shall specify in the basis for case of such Company Adverse Recommendation Change or termination and attaching the most current draft of any Company Acquisition Agreement action taken in connection with respect toa Superior Proposal, the Superior Proposal (or, if no such draft exists, a summary of the material terms and conditions of such Superior ProposalProposal (including the identity of the Person making such Superior Proposal and a copy of the then-current forms of all of the relevant proposed transaction documents related thereto, including definitive agreements with respect to such Superior Proposal and any financing commitments relating thereto), if applicable (a “Notice of Recommendation Change”) (it being understood that such Notice of Recommendation Change shall not in itself be deemed a Company Adverse Recommendation Change and that any change in price or material revision or amendment to the terms of a Superior Proposal, if applicable, shall require a new notice to which the provisions of clauses (ii)(A), (B) ; and (C) of this Section 5.3(d) the Company shall apply mutatis mutandis except thathave, in the case of such a new notice, all references to four (4) Business Days in this Section 5.3(d) shall be deemed to be two (2) Business Days); (Bx) during such four the three (43) Business Day periodperiod specified above (and any additional period related to a revision of the Superior Proposal, if requested by Parentas provided below), the Company shall make negotiated, and caused its Representatives available to negotiate negotiate, with Parent in good faith (to the extent Parent desires to negotiate) with respect to any adjustments proposed by Parent and its Representatives regarding any modifications to the terms and conditions of this Agreement so that Parent proposes such Superior Proposal ceases to make; constitute a Superior Proposal and no such agreement is reached and (Cy) at if applicable, prior to or substantially concurrent with, the end termination of this Agreement pursuant to Section 5.2(d), pay the Termination Fee as set forth in Section 7.3(b).
(f) The parties agree that, in the case of such four actions taken in connection with a Superior Proposal, any material amendment to the financial terms or other material terms of such Superior Proposal shall require a new Company Board Recommendation Notice and an additional two (42) Business Day period (the period inclusive of all such days, the “Notice Period”). The Company agrees that: (i) during the Notice Period the Company shall, and taking shall cause its financial advisors and outside legal counsel to, negotiate with Parent in good faith (if Parent indicates to the Company that it desires to negotiate) the terms of this Agreement and (ii) the Company shall take into account any modifications all changes and adjustments to the terms of this Agreement proposed by Parent, if any, Parent in a written, binding and irrevocable offer, the Company Board determines in good faith (after consultation with outside legal counsel) that the failure determining whether such Superior Proposal continues to make such a Company Adverse Recommendation Change would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, and that, in the case of a Company Adverse Recommendation Change with respect to a Takeover Proposal, such Takeover Proposal still constitutes constitute a Superior Proposal. The Company shall keep Parent reasonably informed of all developments affecting the material terms of any such Superior Proposal (and the Company shall provide Parent with copies of any additional written materials received that relate to such Superior Proposal).
(eg) Nothing contained in this Agreement shall prohibit the Company or the Company Board (or a duly authorized committee thereof) from (i) taking and disclosing to the shareholders stockholders of the Company a position contemplated by Rule 14e-2(a) under the Exchange Act or making a statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9 under the Exchange Act, (ii) making any disclosure to the shareholders of the Company stockholders if the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure to make such disclosure would be reasonably likely to be inconsistent with its fiduciary duties to the Company stockholders under applicable Law, (iii) informing any Person of the existence of the provisions contained in this Section 5.3 5.2 or (iv) except pursuant to the terms set forth in Section 5.2(c), making any “stop, look and listen” communication communications to the shareholders stockholders of the Company pursuant to Rule 14d-9(f) under the Exchange Act.
Act by the Company that describes the Company’s receipt of a Takeover Proposal (for any similar communications to the stockholders of the Company); provided, that this Section 5.2(g) As used shall not in and of itself be deemed to permit the Company Board to make a Company Adverse Recommendation Change that would not otherwise be permitted by Section 5.2(d) and any such statements or disclosures made by the Company Board will be subject to the terms and conditions of this Agreement, “Takeover Proposal” shall mean any inquiry, proposal or offer including the provisions of Article VII (whether or not it being agreed the actions in writingclauses (i)-(iv) from any Person (other than Parent, Merger Sub and any of its Affiliates thereof) to purchase or otherwise acquire, directly or indirectlyin this Section 5.2(g), in and of themselves, shall not be deemed to be a single transaction or series of related transactions, (a) assets of the Company and its Subsidiaries (including securities of Subsidiaries) that account for 15% or more of the Company’s consolidated assets or from which 15% or more of the Company’s revenues or earnings on a consolidated basis are derived or (b) 15% or more of the outstanding Company Common Stock pursuant to a merger, consolidation or other business combination, sale or issuance of shares of capital stock, tender offer, share exchange, other business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company, in each case other than the MergerAdverse Recommendation Change).
Appears in 1 contract
No Solicitation; Change in Recommendation. (a) The Subject to the terms of Section 5.02(b) and (e), the Company agrees that it shall, shall and shall cause each of its Subsidiaries and its and its Subsidiaries’ directors, their officers and employees directors to, and shall instruct and use its reasonable best efforts to cause its other Representatives toto (in each case, immediately cease all existing discussions or negotiations with acting in their capacity as such to the Company and/or any Person conducted heretofore with respect to any Takeover Proposal, immediately request the prompt return or destruction of all confidential information previously furnished and immediately terminate all physical and electronic data room access previously granted to any such Person or its Representatives. Except as otherwise provided in this AgreementSubsidiaries), from the date of this Agreement until the earlier of the Effective Time or the dateor, if anyearlier, on which the termination of this Agreement is terminated pursuant in accordance with Article VII, (i) (A) immediately cease any solicitation, discussions or negotiations with any Persons that may be ongoing with respect to Section 7.1any inquiry, proposal or offer that constitutes, or could reasonably be expected to lead to, a Takeover Proposal, promptly request the return or destruction of all confidential information furnished by the Company shall not, and shall cause or on its Subsidiaries behalf to any Person and its Representatives with respect to a Takeover Proposal on or prior to the date of this Agreement and immediately shut off all access of any Person to any electronic data room maintained by the Company with respect to a possible Takeover Proposal (in each case, other than Parent and its Subsidiaries’ directors, officers Representatives) and employees not to, and shall use its reasonable best efforts to cause its other Representatives (B) not to, directly or indirectly, (i1) initiate, solicit, initiate, knowingly facilitate or knowingly encourage the submission of any inquiries regarding, or knowingly facilitate the making of any inquiry, proposal or offer that constitutes, or could reasonably be expected to lead to, a Takeover Proposal or the making or consummation thereof or (ii2) enter intoengage in, continue or otherwise participate in any discussions or negotiations regarding (except to notify such any Person of the existence of the provisions of this Section 5.3) or negotiations regarding5.02), or furnish to any other Person any information in connection withnon-public information, any Takeover Proposal.
(b) Notwithstanding anything or afford access to the contrary contained in this Agreementbusiness, if properties, assets, books, records or personnel, of the Company or any of its Subsidiaries, or any of its or their respective Representatives receives an unsolicited bona fide written Takeover Proposal made after the date of this Agreement, the Company, the Company Board (or a duly authorized committee thereof) and the Company’s Representatives may engage in negotiations and discussions connection with, or furnish any information and other access tofor the purpose of encouraging, any Person making such Takeover Proposal and any of its Representatives inquiry, proposal or potential sources of financing if the Company Board determines in good faithoffer that constitutes, after consultation with the Company’s outside legal and financial advisors, that such Takeover Proposal is or could reasonably be expected to lead to, a Takeover Proposal, and (ii) not enter into any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement or other agreement relating to a Superior Proposal; provided that prior Takeover Proposal other than an Acceptable Confidentiality Agreement in accordance with Section 5.02(b) (each, a “Company Acquisition Agreement”). From the date of this Agreement until the earlier to engaging in any negotiations or discussions with, or furnishing any information to, any such Person or its Representativesoccur of the termination of this Agreement pursuant to Article VII and the Effective Time, the Company and will not waive, terminate or modify, any provision of any standstill or similar provision that prohibits or purports to prohibit a proposal being made to the Person making Board of Directors of the Company unless the Board of Directors of the Company or the Special Committee determines in good faith that the failure to waive, terminate or modify such Takeover Proposal shall have entered into an Acceptable Confidentiality Agreement. The provision would be reasonably be expected to constitute a breach of the directors’ fiduciary duties under applicable Law; provided, that the Company will notify Parent of such waiver, termination or modification promptly (and in any event within 24 hours) thereafter.
(b) Notwithstanding anything contained in Section 5.02(a) or any other provision of this Agreement to the later contrary, if at any time after the date of twentythis Agreement and prior to obtaining the Company Shareholder Approval, the Company or any of its Representatives receives a Takeover Proposal, which Takeover Proposal did not result from a material breach of Section 5.02(a), (i) the Company and its Representatives may contact and engage in discussions with such Person or group of Persons making the Takeover Proposal or its or their Representatives and financing sources solely to clarify (but not to engage in negotiations or provide non-four public information) the terms and conditions thereof to determine whether the Takeover Proposal constitutes or would reasonably be expected to result in a Superior Proposal or to request that any Takeover Proposal made orally be made in writing or to notify such Person or group of Persons or its or their Representatives and financing sources of the provisions of this Section 5.02 and (24ii) if the Board of Directors of the Company or the Special Committee determines in good faith, (x) after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes or would reasonably be expected to result in a Superior Proposal and (y) after consultation with its outside legal counsel, that the failure to do so would reasonably be expected to constitute a breach of the directors’ fiduciary duties under applicable Law, then the Company and any of its Representatives may (A) enter into an Acceptable Confidentiality Agreement with the Person or group of Persons making the Takeover Proposal and furnish pursuant to an Acceptable Confidentiality Agreement information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group of Persons who has made such Takeover Proposal and its or their respective Representatives and financing sources; provided, that the Company shall promptly (and in any event within 24 hours) provide to Parent any material non-public information concerning the Company or any of its Subsidiaries that is provided to any Person given such access that was not previously provided to Parent or its Representatives and (B) engage in or otherwise participate in discussions or negotiations with the Person or group of Persons making such Takeover Proposal and its or their Representatives and financing sources.
(c) The Company shall promptly (and in any event within 24 hours after knowledge of receipt by the Special Committee or 5:00 p.m. New York City time on an executive officer of the next Business DayCompany) notify Parent in writing the event that the Company or any of the receipt of such its Subsidiaries or its or their Representatives receives a Takeover Proposal, Proposal and shall disclose to Parent the material terms and conditions of any such Takeover Proposal (whether written or oral) and the identity of the Person or group of Persons making such Takeover Proposal and copies of any documents evidencing or delivered in connection with such Takeover Proposal. The , and the Company will shall keep Parent reasonably informed in all promptly of any material respects on a prompt basis (and in developments with respect to any event within the later of twenty-four (24) hours or 5:00 p.m. New York City time on the next Business Day) of the material terms and status of such Takeover Proposal (including any change material changes thereto and including by providing copies of any revised or new material documents evidencing or delivered in connection with such Takeover Proposal). For the avoidance of doubt, all information provided to Parent pursuant to this Section 5.02(c) shall be subject to the terms of the Confidentiality Agreement.
(d) Neither the Board of Directors of the Company nor any committee thereof shall (i) withhold or withdraw (or amend or modify in a manner adverse to Parent), or publicly propose to withhold or withdraw (or amend or modify in a manner adverse to Parent), the Company Board Recommendation, (ii) in the price case of the Board of Directors of the Company, if any 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 shareholders within ten Business Days of commencement thereof pursuant to Rule 14d-2 of the Exchange Act (provided, that if the Company Shareholders’ Meeting is scheduled to be held more than three Business Days but less than ten Business Days from the date of such public disclosure, prior to the date which is one Business Day before the date on which the Company Shareholders’ Meeting is scheduled to be held), (iii) recommend or endorse the approval or adoption of, or approve or adopt, or publicly propose to recommend, endorse, approve or adopt, any Takeover Proposal, (iv) fail to include the Company Board Recommendation in the Proxy Statement or (v) fail to publicly reaffirm the Company Board Recommendation within ten Business Days of the public disclosure of a Takeover Proposal (other than of the type referred to in the clause (iii)) with any Person other than Parent and Merger Sub (provided, that if the Company Shareholders’ Meeting is scheduled to be held more than three Business Days but less than ten Business Days from the date of such public disclosure, promptly and in any event prior to the date which is one Business Day before the date on which the Company Shareholders’ Meeting is scheduled to be held) (any action described in clauses (i) through (v), other than a customary “stop, look and listen” communication, being referred to as an “Adverse Recommendation Change”); it being understood that a reaffirmation of the Company Board Recommendation by the Special Committee shall be sufficient the satisfy the Company’s obligations under this clause (v) as if it were the Board of Directors of the Company.
(e) Notwithstanding the foregoing or any other provision of this Agreement to the contrary, prior to obtaining the Company Shareholder Approval, it shall be permitted, in response to a written Takeover Proposal not solicited in breach of Section 5.02(b), (i) for the Board of Directors of the Company (on recommendation of the Special Committee) or the Special Committee to make an Adverse Recommendation Change or (ii) for the Company, on recommendation of the Special Committee and approval by the Board of Directors of the Company, to concurrently enter into a Company Acquisition Agreement with respect to such Takeover Proposal and terminate this Agreement pursuant to Section 7.01(d)(ii), in either case of clauses (i) and (ii) if the Special Committee has determined in good faith, (x) after consultation with its financial advisor and outside legal counsel, that such Takeover Proposal constitutes a Superior Proposal and (y) after consultation with its outside legal counsel, that the failure to do so would reasonably be expected to constitute a breach of the directors’ fiduciary duties under applicable Law; provided, that each such action set forth in clauses (i) and (ii) shall not be permitted unless (A) the Company has given Parent at least five calendar days’ prior written notice of its intention to take such action (which notice shall specify the identity of the party making such Takeover Proposal and the material terms thereof together with copies of all material relevant agreements (including any Company Acquisition Agreement)) relating to such Takeover Proposal, (B) 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 revisions to the terms of this Agreement that would cause such Superior Proposal to no longer constitute a Superior Proposal and (C) following the end of such notice period, the Board of Directors or the Special Committee shall have considered in good faith such revisions, and shall have determined that the Superior Proposal constitutes a Superior Proposal, and after consultation with its financial advisor and outside legal counsel, the failure to do so would continue to reasonably be expected to constitute a breach of the directors’ fiduciary duties under applicable Law, if the revisions proposed were to be given effect (it being understood that in the event of any change to the financial terms or any other material terms thereofof such Superior Proposal, this proviso shall again apply (but the five calendar day period shall instead be three calendar days). The Company shall not terminate, amend, modify, waive ).
(f) Notwithstanding the foregoing or fail to enforce any other provision of any “standstill” or similar obligation of any Person unless this Agreement to the contrary, prior to obtaining the Company Shareholder Approval, the Board of Directors of the Company (on recommendation of the Special Committee) or a duly authorized committee thereof) determines the Special Committee may make an Adverse Recommendation Change in response to an Intervening Event that is continuing if the Special Committee has determined in good faith, after consultation with its outside legal counsel, that the failure to take such action would reasonably be expected to be inconsistent with its constitute a breach of the directors’ fiduciary duties under applicable Law.
(c) Except as otherwise provided in this Agreement; provided, neither that the Board of Directors of the Company Board nor or any committee thereof shall (i)(A) withdrawnot, change, qualify, withhold or modify, or publicly propose to withdraw, change, qualify, withhold or modify, in a manner adverse to Parent, and shall cause the Company Board Recommendation, (B) adopt, approve or recommend, or publicly propose to adopt, approve or recommend, any Takeover Proposal, (C) fail to include in the Proxy Statement the Company Board Recommendation, (D) fail to recommend against any Takeover Proposal subject to Regulation 14D under the Exchange Act in any solicitation or recommendation statement made on Schedule 14D-9 within ten (10) Business Days after Parent so requests reaffirmation in writing (provided, that Parent shall be entitled to make such a written request for reaffirmation only once for each Takeover Proposal and once for each material amendment to such Takeover Proposal), or (E) resolve or publicly propose to do any of the foregoing (any action described in this clause (i) being referred to herein as a “Company Adverse Recommendation Change”) or (ii) cause or permit the Company or any of its Affiliates to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, agreement or commitment (other than an Acceptable Confidentiality Agreement) constituting, or that would reasonably be expected to lead not to, take any Takeover Proposal (a “Company Acquisition Agreement”).
(d) Notwithstanding anything to the contrary in this Agreement, at any time prior to obtaining the Company Shareholder Approval, the Company Board (or a duly authorized committee thereof) may make a Company Adverse Recommendation Change (and, solely with respect to a Superior Proposal, terminate this Agreement pursuant to Section 7.1(d)(ii)), if (i) such action unless (A) the Company has given Parent at least five calendar days’ prior written notice of its intention to take such action (which notice shall include a Company reasonably detailed description of such Intervening Event has occurred or Event), (B) the Company has received a Superior Proposal other than as a result of a breach of this Section 5.3 (other than immaterial breach)negotiated, in each case, if the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure to make a Company Adverse Recommendation Change as a result of the occurrence of such Company Intervening Event or in response to the receipt of such Superior Proposal, as the case may be, would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law and (ii) (A) the Company provides Parent prior written notice of its intent to make any Company Adverse Recommendation Change or terminate this Agreement pursuant to Section 7.1(d)(ii) at least four (4) Business Days prior to taking such action to the effect that, absent any modification to the terms and conditions of this Agreement, the Company Board has resolved to effect a Company Adverse Recommendation Change or to terminate this Agreement pursuant to Section 7.1(d)(ii), which notice shall specify the basis for such Company Adverse Recommendation Change or termination and attaching the most current draft of any Company Acquisition Agreement with respect to, the Superior Proposal (or, if no such draft exists, a summary of the material terms and conditions of such Superior Proposal), if applicable (a “Notice of Recommendation Change”) (it being understood that such Notice of Recommendation Change shall not in itself be deemed a Company Adverse Recommendation Change and that any change in price or material revision or amendment to the terms of a Superior Proposal, if applicable, shall require a new notice to which the provisions of clauses (ii)(A), (B) and (C) of this Section 5.3(d) shall apply mutatis mutandis except that, in the case of such a new notice, all references to four (4) Business Days in this Section 5.3(d) shall be deemed to be two (2) Business Days); (B) during such four (4) Business Day period, if requested by Parent, the Company shall make caused its Representatives available to negotiate negotiate, in good faith with Parent and its Representatives regarding any modifications during such notice period, to the terms and conditions of this Agreement that extent Parent proposes wishes to make; and (C) at the end of such four (4) Business Day period and taking into account any modifications negotiate, to enable Parent to propose in writing revisions to the terms of this Agreement proposed by Parent, if any, in a written, binding and irrevocable offer, the Company Board determines in good faith (after consultation with outside legal counsel) such that the failure to make such a Company Adverse Recommendation Change would no longer reasonably be expected to constitute a breach of the directors’ fiduciaries under applicable Law and (C) following the end of such notice period, the Special Committee shall have considered in good faith such revisions, and shall have determined that failure to make such Adverse Recommendation Change would continue to be inconsistent with its reasonably be expected to constitute a breach of the directors’ fiduciary duties under applicable Law, and that, Law if the revisions were to be given effect (it being understood that in the case event of a Company Adverse Recommendation Change any change of the financial or any other material facts of such Intervening Event, this proviso shall again apply with respect to a Takeover Proposal, each such Takeover Proposal still constitutes a Superior Proposalrevision (but the five calendar day period shall instead be three calendar days)).
(eA) Nothing contained in this Section 5.02 or elsewhere in this Agreement shall prohibit the Company or the Board of Directors of the Company Board (or a duly authorized any committee thereof) thereof from (i) taking and disclosing to the shareholders of the Company a position contemplated by Rule 14e-2(a) under the Exchange Act ), Rule 14d-9 or making a statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9 promulgated under the Exchange ActAct (or any similar communication to shareholders in connection with the making or amendment of a tender offer or exchange offer), (ii) making any disclosure to the shareholders of the Company if the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure to make such disclosure would be reasonably likely to be inconsistent with applicable Law, (iii) informing any Person of the existence of the provisions contained in this Section 5.3 or (iv) making any “stop, look and listen” communication of the type contemplated by Rule 14d-9(f) under the Exchange Act (or any similar communications to the shareholders of the Company that is required by applicable Law) or (iii) making any disclosure to the shareholders of the Company that is required by applicable Law or if the Board of Directors of the Company or the Special Committee determines in good faith, after consultation with the Company’s outside legal counsel, that the failure of the Board of Directors of the Company to make such disclosure would reasonably be expected to constitute a breach of the directors’ duties to the Company’s shareholders under applicable Law, in each case of clauses (i) through (iii), so long as any such disclosure does not include any statement that constitutes, and does not otherwise constitute, an Adverse Recommendation Change (unless in accordance with Section 5.02(e) or Section 5.02(f)) and (B) the Company shall have notified Parent in advance of making any such disclosures or communications as contemplated in clauses (i) through (iii); provided, that the foregoing shall in no way override the Company’s obligations pursuant to Rule 14d-9(fSection 5.02(d), (e) under the Exchange Actor (f).
(fh) As used in this Agreement, “Takeover Proposal” shall mean any inquiry, proposal or offer (whether or not in writing) from any Person (other than Parent, Merger Sub and any of its Affiliates thereof) to purchase or otherwise acquire, directly or indirectly, in a single transaction or series of related transactions, (a) assets of the Company and its Subsidiaries (including securities of Subsidiaries) that account for 15% or more of the Company’s consolidated assets or from which 15% or more of the Company’s revenues or earnings on a consolidated basis are derived or (b) 15% or more of the outstanding Company Common Stock pursuant to a merger, consolidation or other business combination, sale or issuance of shares of capital stock, tender offer, share exchange, other business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company, in each case other than the Merger.:
Appears in 1 contract
No Solicitation; Change in Recommendation. (a) The Company agrees that it and the Company Subsidiaries shall, and shall use reasonable best efforts to cause its Subsidiaries and its and its Subsidiaries’ their respective directors, officers and employees to, and shall use instruct its reasonable best efforts to cause its other Representatives to, immediately cease all existing discussions or negotiations with any Person conducted heretofore with respect to any Takeover Proposal, immediately or any existing discussion that could reasonably be expected to lead to a Takeover Proposal, and the Company further agrees that it shall request the prompt return or destruction of that all confidential non-public information previously furnished provided by or on behalf of the Company or any Company Subsidiary to any such Persons be promptly returned or destroyed in accordance with the terms of the applicable confidentiality agreement and immediately terminate all physical shall prohibit access for anyone other than the Company, Parent, Holdings, Merger Sub LLC, Merger Sub and their respective Representatives to any electronic data room access previously granted to any such Person or its Representativesof the Company in connection therewith. Except as otherwise provided in this Agreement, from the date of this Agreement until the earlier of the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 7.1, the Company shall not, and shall use reasonable best efforts to cause the Company Subsidiaries not to, and shall use reasonable best efforts to cause its Subsidiaries and its and its Subsidiaries’ their respective directors, officers and employees not to, and shall use direct its reasonable best efforts to cause its other Representatives not to, directly or indirectly, (i) solicit, initiate, knowingly encourage or knowingly facilitate any inquiries, proposals or offers that constitute, or that could reasonably be expected to lead to, a Takeover Proposal or the making or consummation thereof or thereof, (ii) engage in, enter into, continue or otherwise participate in any substantive discussions (except to notify such Person of the existence of the provisions of this Section 5.35.2) or negotiations regarding, or furnish to any Person any non-public material information in connection withwith or for the purpose of encouraging or facilitating, any Takeover Proposal or any inquiry, proposal or offer that could reasonably be expected to lead to a Takeover Proposal, (iii) enter into any letter of intent, agreement, contract, commitment or agreement in principle with respect to a Takeover Proposal (other than an Acceptable Confidentiality Agreement) or enter into any agreement, contract or commitment requiring the Company to abandon, terminate or fail to consummate the Transactions, or (iv) authorize, permit, or direct any Representative of the Company or any of the Company Subsidiaries to take any action set forth in clauses (i), (ii) or (iii) of this Section 5.2(a).
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the date that the Company Stockholder Approval is obtained, the Company or any of its the Company Subsidiaries, or any of its or their respective Representatives receives an unsolicited bona fide written Takeover Proposal made after the date of this AgreementProposal, the Company, the Company Board (or a duly authorized committee thereof) and the Company’s Representatives may engage in negotiations and discussions with, or furnish any information and other access to, any Person making such Takeover Proposal and any of its Representatives or potential sources of financing if which the Company Board determines in good faith, after consultation with the Company’s outside legal and financial advisors, that such Takeover Proposal is or could reasonably be expected to lead to a Superior Proposal; provided that prior to engaging , the Company, the Company Board (or a duly authorized committee thereof) and their Representatives may engage in any negotiations or and discussions with, or furnish any information and other access to any Person making such Takeover Proposal and any of its Representatives (provided that substantially concurrently (and in any event within 24 hours) the Company makes available to Parent such information or access to the extent such information or access was not previously made available to Parent); provided that (i) prior to furnishing any material non-public information to, to any such Person or its RepresentativesPerson, the Company and receives from the Person making such Takeover Proposal shall have entered into an Acceptable Confidentiality Agreement to the extent such Person is not already subject to a confidentiality agreement with the Company, (ii) the Company Board determines in good faith, after consultation with outside legal counsel, that a failure to furnish such information or access would be inconsistent with the fiduciary duties of the Company Board under applicable Law, and (iii) the Company provides written notice to Parent immediately after any such determination by the Company Board and before taking any of the actions described in this sentence. In addition, from and after the date of this Agreement. The , the Company will promptly (and but in any event within the later of twenty-four (24) hours or 5:00 p.m. New York City time on the next Business Day24 hours) notify Parent in writing of the receipt of such Takeover ProposalProposal and (A) if it is in writing, deliver to Parent a copy of such Takeover Proposal and any related draft agreements and other written material relating to such Takeover Proposal or (B) if oral, communicate to Parent the material terms and conditions of any such Takeover Proposal and thereof, including, in each case, the identity of the Person making such Takeover Proposal. The Company will keep Parent informed in all material respects reasonably apprised on a prompt reasonably timely basis (and in any event within the later of twenty-four (24) hours or 5:00 p.m. New York City time on the next Business Day) of the status and material terms and status of such Takeover Proposal (including and with respect to any change in the price or any other material terms thereof)thereof within 24 hours of such material change. The From and after the date hereof, the Company shall not terminate, amend, modify, waive or fail TABLE OF CONTENTS to enforce any provision of any “standstill” or similar obligation of any Person Person, unless the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law; provided, however, that any such termination, amendment, modification, waiver or failure to enforce any provision of any such “standstill” may occur only at the initiation and request of the third party thereto.
(c) Except as otherwise provided in this Agreement, neither the Company Board nor any committee thereof shall not (i)(Ai) withhold, withdraw, change, qualify, withhold amend or modify, or publicly propose to withhold, withdraw, change, qualify, withhold amend or modify, in a manner adverse to Parent, Holdings, Merger Sub LLC or Merger Sub, the Company Board RecommendationRecommendation (including any failure to include the Company Board Recommendation in the Proxy Statement), (Bii) adoptapprove, approve endorse or recommend, or publicly propose to adoptapprove, approve endorse or recommend, any recommend to the stockholders of the Company a Takeover Proposal, (Ciii) fail to include in the Proxy Statement the Company Board Recommendation, (D) fail to publicly recommend against acceptance of any Takeover Proposal subject to Regulation 14D under tender offer or exchange offer for the Exchange Act in any solicitation or recommendation statement made on Schedule 14D-9 Shares within ten (10) Business Days after commencement of such offer or against any Takeover Proposal (provided that a “stop, look and listen” communication by the Company Board to the stockholders of the Company pursuant to Rule 14d-9(f) of the Exchange Act shall not be deemed to be a Company Adverse Recommendation Change unless and until the Company Board fails to reconfirm the Company Board Recommendation by the close of business on the tenth (10th) Business Days following the commencement of a tender offer or exchange offer), (iv) other than with respect to the period of up to ten (10) Business Days applicable to tender offer or exchange offers that are the subject of the preceding clause (iii), fail to publicly reaffirm the Company Board Recommendation, in each case, within five (5) Business Days after Parent so requests reaffirmation in writing writing, (provided, that Parent shall be entitled to make such v) enter into any definitive agreement providing for a written request for reaffirmation only once for each Takeover Proposal and once for each material amendment to such Takeover Proposal), or (Evi) resolve or publicly propose to do any of the foregoing (take any action described in this clause the foregoing clauses (i) through (v) (each of the foregoing actions described in clauses (i) through (v) being referred to herein as a “Company Adverse Recommendation Change”) or (ii) cause or permit the Company or any of its Affiliates to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, agreement or commitment (other than an Acceptable Confidentiality Agreement) constituting, or that would reasonably be expected to lead to, any Takeover Proposal (a “Company Acquisition Agreement”).
(d) Notwithstanding anything to the contrary in this Agreement, at any time prior to obtaining the Company Shareholder Approval, the Company Board (or a duly authorized committee thereof) may may: (i) make a Company Adverse Recommendation Change (and, solely with respect in response to a Superior Proposal, terminate this Agreement pursuant to Section 7.1(d)(ii)), if (i) (A) a Company Intervening Event has occurred or (B) the Company has received a Superior receiving an unsolicited Takeover Proposal other than as a result of a breach of this Section 5.3 (other than immaterial breach), in each case, if that the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its financial advisor and outside legal counsel, constitutes a Superior Proposal; or (ii) if the Company has complied (other than immaterial breaches) with this Section 5.2, cause the Company to terminate this Agreement and, prior to or substantially concurrently with such termination, cause the Company to enter into a definitive written agreement providing for such Superior Proposal, if, and only if, in all cases the Company Board determines in good faith, after consulting with and receiving advice from outside counsel, that the failure to make (1) effect a Company Adverse Recommendation Change as or (2) terminate this Agreement and enter into a result of the occurrence of such Company Intervening Event or in response to the receipt of such definitive written agreement providing for a Superior Proposal, as the case may be, would reasonably be expected likely to be inconsistent with its fiduciary duties under applicable Law Law.
(e) Subject to Section 5.2(d), (i) no Company Adverse Recommendation Change may be made in response to a Superior Proposal and (ii) no termination of this Agreement in accordance with Section 5.2(d) may be made unless: (A) the Company complies in all material respects with this Section 5.2, (B) the Company provides Parent prior written notice of its intent to make any Company Adverse Recommendation Change or terminate this Agreement pursuant to Section 7.1(d)(ii5.2(d) at least four three (43) Business Days prior to taking such action to the effect that, absent any modification to the terms and conditions of this Agreement, the (a “Company Board has resolved to effect a Company Adverse Recommendation Change or to terminate this Agreement pursuant to Section 7.1(d)(iiNotice”), which notice shall specify in the basis for case of such Company Adverse Recommendation Change or termination and attaching the most current draft of any Company Acquisition Agreement action taken in connection with respect toa Superior Proposal, the Superior Proposal (or, if no such draft exists, a summary of the material terms and conditions of such Superior ProposalProposal (including the identity of the Person making such Superior Proposal and a copy of the then-current forms of all of the relevant proposed transaction documents related thereto, including definitive agreements with respect to such Superior Proposal and any financing commitments relating thereto), if applicable (a “Notice of Recommendation Change”) (it being understood that such Notice of Recommendation Change shall not in itself be deemed a Company Adverse Recommendation Change and that any change in price or material revision or amendment to the terms of a Superior Proposal, if applicable, shall require a new notice to which the provisions of clauses (ii)(A), (B) ; and (C) of this Section 5.3(d) the Company shall apply mutatis mutandis except thathave, in the case of such a new notice, all references to four (4) Business Days in this Section 5.3(d) shall be deemed to be two (2) Business Days); (Bx) during such four the three (43) Business Day periodperiod specified above (and any additional period related to a revision of the Superior Proposal, if requested by Parentas provided below), the Company shall make negotiated, and caused its Representatives available to negotiate negotiate, with Parent in good faith (to the extent Parent desires to negotiate) with respect to any adjustments TABLE OF CONTENTS proposed by Parent and its Representatives regarding any modifications to the terms and conditions of this Agreement so that Parent proposes such Superior Proposal ceases to make; constitute a Superior Proposal and no such agreement is reached and (Cy) at if applicable, prior to or substantially concurrent with, the end termination of this Agreement pursuant to Section 5.2(d), pay the Termination Fee as set forth in Section 7.3(b).
(f) The parties agree that, in the case of such four actions taken in connection with a Superior Proposal, any material amendment to the financial terms or other material terms of such Superior Proposal shall require a new Company Board Recommendation Notice and an additional two (42) Business Day period (the period inclusive of all such days, the “Notice Period”). The Company agrees that: (i) during the Notice Period the Company shall, and taking shall cause its financial advisors and outside legal counsel to, negotiate with Parent in good faith (if Parent indicates to the Company that it desires to negotiate) the terms of this Agreement and (ii) the Company shall take into account any modifications all changes and adjustments to the terms of this Agreement proposed by Parent, if any, Parent in a written, binding and irrevocable offer, the Company Board determines in good faith (after consultation with outside legal counsel) that the failure determining whether such Superior Proposal continues to make such a Company Adverse Recommendation Change would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, and that, in the case of a Company Adverse Recommendation Change with respect to a Takeover Proposal, such Takeover Proposal still constitutes constitute a Superior Proposal. The Company shall keep Parent reasonably informed of all developments affecting the material terms of any such Superior Proposal (and the Company shall provide Parent with copies of any additional written materials received that relate to such Superior Proposal).
(eg) Nothing contained in this Agreement shall prohibit the Company or the Company Board (or a duly authorized committee thereof) from (i) taking and disclosing to the shareholders stockholders of the Company a position contemplated by Rule 14e-2(a) under the Exchange Act or making a statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9 under the Exchange Act, (ii) making any disclosure to the shareholders of the Company stockholders if the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure to make such disclosure would be reasonably likely to be inconsistent with its fiduciary duties to the Company stockholders under applicable Law, (iii) informing any Person of the existence of the provisions contained in this Section 5.3 5.2 or (iv) except pursuant to the terms set forth in Section 5.2(c), making any “stop, look and listen” communication communications to the shareholders stockholders of the Company pursuant to Rule 14d-9(f) under the Exchange Act.
Act by the Company that describes the Company’s receipt of a Takeover Proposal (for any similar communications to the stockholders of the Company); provided, that this Section 5.2(g) As used shall not in and of itself be deemed to permit the Company Board to make a Company Adverse Recommendation Change that would not otherwise be permitted by Section 5.2(d) and any such statements or disclosures made by the Company Board will be subject to the terms and conditions of this Agreement, “Takeover Proposal” shall mean any inquiry, proposal or offer including the provisions of Article VII (whether or not it being agreed the actions in writingclauses (i)-(iv) from any Person (other than Parent, Merger Sub and any of its Affiliates thereof) to purchase or otherwise acquire, directly or indirectlyin this Section 5.2(g), in and of themselves, shall not be deemed to be a single transaction or series of related transactions, (a) assets of the Company and its Subsidiaries (including securities of Subsidiaries) that account for 15% or more of the Company’s consolidated assets or from which 15% or more of the Company’s revenues or earnings on a consolidated basis are derived or (b) 15% or more of the outstanding Company Common Stock pursuant to a merger, consolidation or other business combination, sale or issuance of shares of capital stock, tender offer, share exchange, other business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company, in each case other than the MergerAdverse Recommendation Change).
Appears in 1 contract
No Solicitation; Change in Recommendation. (a) The Company agrees that it shall, and shall cause its Subsidiaries the Company Subsidiaries, and its and its Subsidiaries’ their respective directors, officers and employees toto and shall direct, and shall use its reasonable best efforts to cause cause, its other Representatives to, immediately cease all existing discussions or negotiations with any Person conducted heretofore with respect to any Takeover Proposal, immediately or any existing discussion that could reasonably be expected to lead to a Takeover Proposal, and the Company further agrees that it shall request the prompt return or destruction of that all confidential non-public information previously furnished provided by or on behalf of the Company or any Company Subsidiary to any such Persons be promptly returned or destroyed in accordance with the terms of the applicable confidentiality agreement or similar agreement with such Persons and immediately terminate all physical shall prohibit access for anyone other than Parent, the Company, Purchaser and their respective Representatives to any electronic data room access previously granted to any such Person or its Representativesof the Company in connection therewith. Except as otherwise provided in this Agreement, from the date of this Agreement until the earlier of the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 7.1, the Company shall not, and shall cause its Subsidiaries Subsidiaries, and its and its Subsidiaries’ their respective directors, officers and employees not to, and shall direct, and use its reasonable best efforts to cause cause, its other Representatives not to, directly or indirectly, (i) solicit, initiate, knowingly encourage or knowingly facilitate any inquiries, proposals or offers that constitute, or that could reasonably be expected to lead to, a Takeover Proposal or the making or consummation thereof or thereof, (ii) engage in, enter into, continue or otherwise participate in any discussions (except to notify such Person of the existence of the provisions of this Section 5.35.2) or negotiations regarding, or furnish to any Person any non-public material information in connection withwith or for the purpose of encouraging or facilitating, any Takeover Proposal or any inquiry, proposal or offer that could reasonably be expected to lead to a Takeover Proposal, (iii) enter into any letter of intent, legal commitment or agreement to effectuate a Takeover Proposal (other than an Acceptable Confidentiality Agreement) or any Contract or legal commitment requiring the Company to abandon, terminate or fail to consummate the Transactions or (iv) direct any Representatives of the Company or any of its Subsidiaries to take any action set forth in clauses (i), (ii) or (iii) of this Section 5.2(a).
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to the date that the Company Stockholder Approval is obtained, the Company or any of its the Company Subsidiaries, or any of its or their respective Representatives receives an unsolicited bona fide written a Takeover Proposal made after the date that did not result from a breach of this AgreementSection 5.2(a) (an “Unsolicited Takeover Proposal”), the Company, which the Company Board (or a duly authorized committee thereof) and the Company’s Representatives may engage in negotiations and discussions with, or furnish any information and other access to, any Person making such Takeover Proposal and any of its Representatives or potential sources of financing if the Company Board determines in good faith, after consultation with the Company’s outside legal and financial advisors, that such Takeover Proposal is or could be reasonably be expected to lead to a Superior Proposal; provided that prior to engaging , the Company, the Company Board (or a duly authorized committee thereof) and their Representatives may engage in any negotiations or and discussions with, or furnishing furnish any information to, and other access to any Person making such Person or Takeover Proposal and any of its Representatives, provided, that (i) substantially concurrently (and in any event within twenty-four (24) hours) the Company makes available to Parent such information or access (provided that access to any information the Company deems competitively sensitive may be be granted to Parent or its Representatives in accordance with the terms of the Clean Team Agreement) to the extent such information or access was not previously made available to Parent and (ii) prior to furnishing any material non-public information to any such Person, the Company receives from the Person making such Takeover Proposal shall have entered into an Acceptable Confidentiality Agreement. The Company will promptly (and but in any event within the later of twenty-four (24) hours or 5:00 p.m. New York City time on the next Business Day24 hours) notify Parent in writing of the receipt of such Takeover ProposalProposal and (i) if it is in writing, deliver to Parent a copy of such Takeover Proposal and any related draft agreements and other written material relating to such Takeover Proposal or (ii) if oral, communicate to Parent the material terms and conditions of any such Takeover Proposal and thereof, including, in each case, the identity of the Person making such Takeover Proposal. The Company will keep Parent informed in all material respects reasonably apprised on a prompt and timely basis (and in any event within the later of twenty-four (24) hours or 5:00 p.m. New York City time on the next Business Day) of the status and material terms and status of such Takeover Proposal (including and with respect to any change in the price or any other material terms thereof)thereof within 24 hours of such material change, including the delivery to Parent of any draft agreements or other written material reflecting any such changes to price or the material terms of such Takeover Proposal. The Company shall not terminate, amend, modify, waive or fail to enforce any provision of any “standstill” or similar obligation of any Person unless the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Lawlaw.
(c) Except as otherwise provided in this Agreement, neither the Company Board nor any committee thereof shall not (i)(Ai) withhold, withdraw, change, qualify, withhold amend or modify, or publicly propose to withhold, withdraw, change, qualify, withhold amend or modify, in a manner adverse to ParentParent or Purchaser, the Company Board RecommendationRecommendation (including any failure to include the Company Board Recommendation in the Proxy Statement when mailed), (Bii) adoptapprove, approve endorse or recommend, or publicly propose to adoptapprove, approve endorse or recommendrecommend to the Company Stockholders a Takeover Proposal, (iii) fail to publicly recommend against acceptance of any tender offer or exchange offer for the Shares within five (5) Business Days after commencement of such offer or against any Takeover Proposal, (Civ) fail to include in the Proxy Statement the Company Board Recommendation, (D) fail to recommend against enter into any definitive agreement providing for a Takeover Proposal subject to Regulation 14D under the Exchange Act in any solicitation or recommendation statement made on Schedule 14D-9 within ten (10) Business Days after Parent so requests reaffirmation in writing (provided, that Parent shall be entitled to make such a written request for reaffirmation only once for each Takeover Proposal and once for each material amendment to such Takeover Proposal), or (Ev) resolve or publicly propose to do any of the foregoing (take any action described in this clause the foregoing clauses (i) through (iv) (each of the foregoing actions described in clauses (i) through (v) being referred to herein as a “Company Adverse Recommendation Change”) or (ii) cause or permit the Company or any of its Affiliates to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, agreement or commitment (other than an Acceptable Confidentiality Agreement) constituting, or that would reasonably be expected to lead to, any Takeover Proposal (a “Company Acquisition Agreement”).
(d) Notwithstanding anything to the contrary in this Agreement, at any time prior Agreement (but subject to obtaining the Company Shareholder ApprovalCompany’s compliance in all material respects with the provisions of this Section 5.2), the Company Board (or a duly authorized committee thereof) may make a Company Adverse Recommendation Change (and, solely with respect only in response to a Superior Proposal, terminate this Agreement pursuant to Section 7.1(d)(ii)), if (i) (A) a Company Intervening Event has occurred or (B) the Company has received a Superior receiving an Unsolicited Takeover Proposal other than as a result of a breach of this Section 5.3 (other than immaterial breach), in each case, if that the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its financial advisor and outside legal counsel, constitutes a Superior Proposal, cause the Company to terminate this Agreement pursuant to Section 7.1(d)(ii) and, prior to or substantially concurrently with such termination, cause the Company to enter into a definitive written agreement providing for such Superior Proposal if, and only if, in all cases, the Company Board determines in good faith, after consulting with outside counsel, that the failure to make a Company Adverse Recommendation Change as a result of the occurrence of take such Company Intervening Event or in response to the receipt of such Superior Proposal, as the case may be, action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law and Law.
(iie) The Company may not make a Company Adverse Recommendation Change or terminate this Agreement pursuant to Section 7.1(d)(ii) unless: (A) the Company complies in all material respects with this Section 5.2, (B) the Company provides Parent prior written notice of its intent to make any Company Adverse Recommendation Change or terminate this Agreement pursuant to Section 7.1(d)(ii) at least four five (45) Business Days prior to taking such action action, to the effect thatthat the Company Board has received a Superior Proposal and, absent any modification revision to the terms and conditions of this Agreement, the Company Board has resolved to effect a Company Adverse Recommendation Change or to terminate this Agreement pursuant to Section 7.1(d)(ii), which notice shall specify the basis for such Company Adverse Recommendation Change or termination and attaching the most current draft of any Company Acquisition Agreement with respect totermination, the Superior Proposal (or, if no such draft exists, a summary of the material terms and conditions of the Superior Proposal and the identity of the Person making such Superior Proposal), if applicable and include a copy of the then current forms of all of the relevant proposed transaction documents related thereto, including definitive agreements with respect to such Superior Proposal and any financing commitment relating thereto (a “Notice of Recommendation ChangeSuperior Proposal”) (it being understood that such Notice of Recommendation Change Superior Proposal shall not in itself be deemed a Company Adverse Recommendation Change and that any change in price or material revision or amendment to the terms of a such Superior Proposal, if applicable, Proposal shall require a new notice to which the provisions of clauses (ii)(A), (B) and (C) of this Section 5.3(d) shall apply mutatis mutandis except thatand, in the case of such a new noticecase, all references to four five (45) Business Days in this Section 5.3(d5.2(e) shall be deemed to be two three (23) Business Days); (BC) during such four five (45) or three (3) Business Day period, as applicable, if requested by Parent, the Company shall make have made its Representatives available reasonably available, and directed its Representatives, to discuss and negotiate in good faith with Parent and its Parent’s Representatives regarding any proposed modifications to the terms and conditions of this Agreement; (D) Parent has not, within such five (5) or three (3) Business Day period, as applicable, made a written, binding and irrevocable offer capable of being accepted by the Company to alter the terms or conditions of this Agreement such that Parent proposes such Takeover Proposal would cease to makeconstitute a Superior Proposal; and (CE) at the end of such four (4) Business Day period and Company Board, after taking into account any modifications to the terms of this Agreement proposed and the Merger agreed to by ParentParent and Purchaser after receipt of such notice, if any, in a written, binding and irrevocable offer, the Company Board determines in good faith (after consultation with outside legal counsel) continues to believe that the failure to make such a Company Adverse Recommendation Change would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, and that, in the case of a Company Adverse Recommendation Change with respect to a Takeover Proposal, such Takeover Proposal still constitutes a Superior Proposal.
(ef) Nothing contained in this Agreement shall prohibit the Company or the Company Board (or a duly authorized committee thereof) from (i) taking and disclosing to the shareholders of the Company Stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or making a statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9 under the Exchange Act, (ii) making any disclosure to the shareholders of the Company Stockholders if the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure to make such disclosure would be reasonably likely to be inconsistent with its fiduciary duties to the Company Stockholders under applicable Law, Law or (iii) informing any Person of the existence of the provisions contained in this Section 5.3 5.2; or (iv) making any “stop, look and listen” communication to the shareholders of the Company Stockholders pursuant to Rule 14d-9(f) under the Exchange ActAct (or any similar communication to the Company Stockholders). No disclosures under this Section 5.2(f) shall be, in themselves, a breach of Section 5.2 or Section 5.3 or a basis for Parent to terminate this Agreement.
(fg) As used in this Agreement, “Takeover Proposal” shall mean any inquiry, bona fide proposal or offer (whether or not in writing) from any Person or “group” (as defined under Section 13(d) of the Exchange Act) (other than Parent, Merger Sub Purchaser and any of its Affiliates thereof) to purchase or otherwise acquire, directly or indirectly, in a single transaction or series of related transactions, (a) assets of the Company and its the Company Subsidiaries (including securities of Subsidiaries, but excluding sales of assets in the ordinary course of business consistent with past practice) that account for 15% or more of the Company’s consolidated assets or from which 15% or more of the Company’s revenues or earnings on a consolidated basis are derived or derived, (b) beneficial ownership (as defined under Section 13(d) of the Exchange Act) of 15% or more of the outstanding Company Common Stock or any other voting or equity securities of the Company pursuant to a merger, consolidation or other business combination, sale or issuance of shares of capital stock, tender offer, share exchange, other business combination, recapitalization, liquidation, dissolution exchange offer or similar transaction involving or (c) any combination of the Company, in each case other than the Mergerforegoing.
Appears in 1 contract
Samples: Merger Agreement (Epiq Systems Inc)
No Solicitation; Change in Recommendation. (a) The Company agrees that it shallUnless and until this Agreement has been terminated in accordance with Section 7, and shall cause its Subsidiaries and its and its Subsidiaries’ directors, officers and employees to, and shall use its reasonable best efforts to cause its other Representatives tothe Company:
(i) will, immediately cease all after the date of this Agreement, (1) terminate any existing discussions or negotiations other activities conducted prior to the date of this Agreement in connection with any Person conducted heretofore with respect to any Takeover Proposal, immediately (2) promptly inform its Representatives of the obligations undertaken in this Section 5.2, and (3) deny access to any virtual data room containing information about the Acquired Companies to all Persons other than Parent and its Representatives;
(ii) will, within three Business Days after the date of this Agreement, request the prompt return or destruction of all any confidential information previously furnished and immediately terminate all physical and electronic data room access previously granted in connection with any Takeover Proposal;
(iii) except to any such Person or its Representatives. Except as otherwise provided in this Agreementthe extent permitted by Section 5.2(b), from the date of this Agreement until the earlier of the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 7.1, the Company shall not, and shall cause its Subsidiaries and its and its Subsidiaries’ directors, officers and employees will not to, and shall use its reasonable best efforts to cause its other Representatives not to, directly or indirectly, indirectly (i1) solicit, initiate, knowingly encourage solicit or knowingly facilitate or encourage any inquiry or the making of any proposal that constitutes or is reasonably likely to lead to a Takeover Proposal or (2) afford access to the making business, properties, assets, books or consummation thereof records of any Acquired Company or (ii) enter into, continue or otherwise participate in any discussions (except to notify such Person of the existence of the provisions of this Section 5.3) or negotiations regardingregarding an inquiry or proposal, or furnish to any Person any information in connection withor data with respect to any inquiry or proposal, or otherwise cooperate with or take any other action to facilitate an inquiry or proposal that (A) constitutes or is reasonably likely to lead to any Takeover ProposalProposal or (B) requires the Company to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement;
(iv) will not directly or indirectly amend, terminate, waive, fail to use commercially reasonable efforts to enforce, or grant any consent under any confidentiality, standstill, shareholder rights or similar agreement (other than any such agreement with Parent); and
(v) will not submit to the vote of its shareholders any Takeover Proposal other than the Merger.
(b) Notwithstanding anything to the contrary contained in this AgreementSection 5.2(a)(iii), if prior to receipt of the Required Shareholder Vote the Company or any of its Subsidiariesreceives a bona fide, or any of its or their respective Representatives receives an unsolicited bona fide written Takeover Proposal made after the date of this Agreement, the Company, that the Company Board (did not initiate, solicit or a duly authorized committee thereof) knowingly facilitate or encourage, then the Company and the Company’s its Representatives may engage furnish information to and participate in negotiations discussions with the Person (and discussions with, or furnish any information its Affiliates and other access to, any Person their respective Representatives) making such the Takeover Proposal for so long as all of the following conditions are satisfied:
(i) the information is furnished under and any in accordance with a confidentiality agreement (a copy of which will be provided to Parent promptly after its Representatives execution) containing terms and conditions (1) no less restrictive than those contained in the Confidentiality Agreement (except that the agreement need not contain a standstill provision), and (2) that does not prevent the Company from complying with its obligations under this Agreement (including the disclosure obligations under Section 5.2(c));
(ii) all non-public information furnished to the Person has previously been provided to Parent or potential sources of financing if is provided to Parent prior to or concurrently with the time it is provided to the Person; and
(iii) the Company Board determines in good faith, faith by resolution duly adopted after consultation with its outside legal counsel and a financial advisor of nationally recognized reputation that (1) the failure to furnish the information or participate in the discussions would reasonably be expected to result in a Breach of its fiduciary duties to the Company’s outside legal shareholders under the GBCC and financial advisors, that such (2) the Takeover Proposal is or could reasonably be expected to lead to a Superior Proposal; provided that prior to engaging in any negotiations or discussions with, or furnishing any information to, any such Person or its Representatives, the Company and the Person making such Takeover Proposal shall have entered into an Acceptable Confidentiality Agreement. The Company will .
(c) As promptly as practicable (and in any event within two Business Days) after the later of twenty-four (24) hours or 5:00 p.m. New York City time on the next Business Day) notify Parent in writing of the Company’s receipt of such any Takeover Proposal or any inquiry with respect to, or that would reasonably be expected to lead to, any Takeover Proposal, the Company will provide oral and written notice to Parent of (i) the Takeover Proposal or inquiry, (ii) the identity of the Person submitting the Takeover Proposal or inquiry, and (iii) the material terms and conditions of any such the Takeover Proposal and the identity of the Person making such Takeover Proposalor inquiry (including any amendments or modifications thereto). The Company will keep Parent fully informed in all material respects on a prompt current basis concerning the status of any such Takeover Proposal, including any changes to the terms and conditions thereof, and will promptly provide Parent with copies of all such Takeover Proposals (and in any event within the later of twenty-four (24) hours or 5:00 p.m. New York City time on the next Business Day) of the material terms and status of such Takeover Proposal (including any change in the price or any other material terms thereof). The Company shall not terminate, amend, modify, waive or fail to enforce any provision of any “standstill” or similar obligation of any Person unless the Company Board (or a duly authorized committee modifications thereof) determines in good faithand related agreements, after consultation with its outside legal counsel, that the failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Lawdraft agreements and modifications thereof.
(cd) Except as otherwise provided in this Agreement, neither to the Company Board nor any committee thereof shall (i)(A) withdraw, change, qualify, withhold or modify, or publicly propose to withdraw, change, qualify, withhold or modify, in a manner adverse to Parentextent permitted by Section 5.2(e), the Company Board Recommendationwill not, (B) adoptdirectly or indirectly, approve or recommend, or publicly propose to adopt, approve or recommend, any Takeover Proposal, (C) fail to include in the Proxy Statement the Company Board Recommendation, (D) fail to recommend against any Takeover Proposal subject to Regulation 14D under the Exchange Act in any solicitation or recommendation statement made on Schedule 14D-9 within ten (10) Business Days after Parent so requests reaffirmation in writing (provided, that Parent shall be entitled to make such a written request for reaffirmation only once for each Takeover Proposal and once for each material amendment to such Takeover Proposal), or (E) resolve or publicly propose to do any of the foregoing (any action described in this clause (i) being referred to herein as make a “Company Adverse Change in Recommendation Change”) or (ii) cause approve or recommend (or propose publicly to approve or recommend), or permit the Company to enter into or any of its Affiliates to execute or enter intootherwise become bound by, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement or commitment (other than an Acceptable Confidentiality Agreement) constitutingagreement, arrangement or that would reasonably be expected understanding relating to lead to, any Takeover Proposal (a “Company Acquisition Agreement”other than the confidentiality agreement referred to in Section 5.2(b)).
(de) Notwithstanding anything to the contrary in this AgreementSection 5.2(d), at any time prior to obtaining the Company Required Shareholder ApprovalVote, the Company Board (or a duly authorized committee thereof) may make a Company Adverse Change in Recommendation Change (and, solely with respect in response to a Superior Proposal, terminate this Agreement pursuant to Section 7.1(d)(ii)), Proposal if all of the following conditions are satisfied:
(i) the Superior Proposal did not result from a material Breach of this Section 5.2;
(A) a Company Intervening Event has occurred or (Bii) the Company has received a Superior Proposal other than as a result of a breach of this Section 5.3 (other than immaterial breach), in each case, if the Company Board (or a duly authorized committee thereof) determines in good faith, faith by resolution duly adopted after consultation with its outside legal counsel, that the failure to make a Company Adverse Change in Recommendation Change as a result of the occurrence of such Company Intervening Event or in response to the receipt of such Superior Proposal, as the case may be, would reasonably be expected to be inconsistent with violate its fiduciary duties under applicable Law and (ii) (A) the Company provides Parent prior written notice of its intent to make any Company Adverse Recommendation Change or terminate this Agreement pursuant to Section 7.1(d)(ii) at least four (4) Business Days prior to taking such action to the effect that, absent any modification to Company’s shareholders under the terms and conditions of this Agreement, GBCC;
(iii) the Company Board has resolved first provided prior written notice to effect Parent that it is prepared to make a Company Adverse Change in Recommendation Change or in response to terminate this Agreement pursuant to Section 7.1(d)(ii), which notice shall specify the basis for such Company Adverse Recommendation Change or termination and attaching the most current draft of any Company Acquisition Agreement with respect to, the Superior Proposal Proposal, and with such notice or by prior communication (or1) identifies the Person making the Superior Proposal, if no such draft exists, a summary of (2) sets forth the material terms and conditions of such Superior Proposal), if applicable (a “Notice of Recommendation Change”) (it being understood that such Notice of Recommendation Change shall not in itself be deemed a Company Adverse Recommendation Change and that any change in price or material revision or amendment to the terms of a Superior Proposal, if applicable, shall require a new notice to which the provisions of clauses (ii)(A), (B) and (C3) provides the most current version of this Section 5.3(dany written agreement relating to the transaction that constitutes the Superior Proposal; and
(iv) shall apply mutatis mutandis except that, in the case of such a new notice, all references to four (4) Business Days in this Section 5.3(d) shall be deemed to be two (2) Business Days); (B) during such four (4) Business Day period, if requested by Parent, the Company shall make and its Representatives available to Representative negotiate in good faith with Parent and its Representatives regarding any modifications for a period of three Business Days after Parent receives the foregoing written notice, and Parent does not within that period propose to the terms and conditions of amend this Agreement that Parent proposes to make; and (C) at the end of such four (4) Business Day period and taking into account any modifications to the provide for terms of this Agreement proposed by Parent, if any, in a written, binding and irrevocable offer, which the Company Board determines in good faith (by resolution duly adopted after consultation with outside legal counsel) that a financial advisor of nationally recognized reputation, is at least as favorable to the failure to make such a Company Adverse Recommendation Change would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, and that, in Company’s shareholders as the case of a Company Adverse Recommendation Change with respect to a Takeover Proposal, such Takeover Proposal still constitutes a Superior Proposal.
(ef) Nothing contained in this Agreement shall Section 5.2(d) will prohibit the Company or the Company Board (or a duly authorized committee thereof) from (i) taking and disclosing to the shareholders of the Company a position contemplated by complying with Rule 14e-2(a) 14e-2 promulgated under the Exchange Act or making a statement contemplated by Item 1012(a) in respect of Regulation M-A or Rule 14d-9 under the Exchange Actany Takeover Proposal, (ii) making any disclosure to the Company’s shareholders of the Company if the Company Board (or a duly authorized committee thereof) determines in good faith, faith by resolution duly adopted after consultation with its outside legal counsel, that the failure to make such the disclosure would reasonably be reasonably likely expected to be inconsistent with applicable Lawresult in a Breach of its fiduciary duties to the Company’s shareholders under the GBCC, or (iii) informing taking any Person of action or making any disclosure required by applicable Law. However, the existence of Company Board may not, except as expressly permitted by Section 5.2(e), effect a Change in Recommendation or approve or recommend, or publicly propose to approve or recommend, a Takeover Proposal.
(g) The Company will cause each Company Subsidiary to, and the provisions contained in Company will use all commercially reasonable efforts to cause its Representatives and its Company Subsidiaries’ Representatives to, comply with this Section 5.3 or (iv) making 5.2 as if they were the Company. Any violation of this Section 5.2 by any “stop, look and listen” communication to the shareholders Representative of the Company pursuant or any Representative of a Company Subsidiary will be deemed to Rule 14d-9(f) under be a Breach of this Section 5.2 by the Exchange ActCompany.
(fh) As used in For purposes of this Agreement, “Takeover Proposal” shall mean any inquiry, proposal or offer (whether or not in writing) from any Person (other than Parent, Merger Sub and any of its Affiliates thereof) to purchase or otherwise acquire, directly or indirectly, in a single transaction or series of related transactions, (a) assets of the Company and its Subsidiaries (including securities of Subsidiaries) that account for 15% or more of the Company’s consolidated assets or from which 15% or more of the Company’s revenues or earnings on a consolidated basis are derived or (b) 15% or more of the outstanding Company Common Stock pursuant to a merger, consolidation or other business combination, sale or issuance of shares of capital stock, tender offer, share exchange, other business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company, in each case other than the Merger.:
Appears in 1 contract
No Solicitation; Change in Recommendation. (a) The Each of the Company and Broadcom agrees that neither it nor any of its Subsidiaries nor any of the directors, officers and employees of it or its Subsidiaries shall, and that it shall cause its Subsidiaries and its and its Subsidiaries’ directors, officers and employees to, and shall use its reasonable best efforts to cause its other Representatives to, immediately cease all existing discussions or negotiations with any Person conducted heretofore with respect to any Takeover Proposal, immediately request the prompt return or destruction of all confidential information previously furnished and immediately terminate all physical and electronic data room access previously granted to any such Person or its Representatives. Except as otherwise provided in this Agreement, from the date of this Agreement until the earlier of the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 7.1, the Company shall not, and shall cause its Subsidiaries and its and its Subsidiaries’ directors, officers and employees not to, and shall use its reasonable best efforts to cause its other Representatives not to, directly or indirectly, (i) initiate, solicit, initiatepropose, knowingly encourage or knowingly facilitate any Takeover Proposal inquiry or the making of any proposal or consummation thereof offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (ii) enter intoengage in, continue or otherwise participate in any discussions with or negotiations relating to any Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to an Acquisition Proposal (except other than to notify state that the terms of this Agreement prohibit such discussions), (iii) provide any nonpublic information to any Person in connection with any Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to an Acquisition Proposal, (iv) approve or execute or enter into any letter of intent, agreement in principle, merger agreement, business combination agreement, sale or purchase agreement or share exchange agreement, option agreement or any other similar agreement related to any Acquisition Proposal (an “Acquisition Agreement”) or (v) propose, authorize or agree to do any of the existence foregoing.
(i) Notwithstanding the foregoing, prior to the Company Meeting (in the case of the provisions Company) or the Broadcom Special Meeting or the Broadcom Redomiciliation Meeting (as applicable) (in the case of Broadcom), in response to an unsolicited, bona fide written Acquisition Proposal (that did not result from such Party’s breach of this Section 5.3) or negotiations regarding, or furnish to any Person any information in connection with, any Takeover Proposal.
(b) Notwithstanding anything to the contrary contained in this Agreement, if the Company or any of its Subsidiaries, or any of its or their respective Representatives receives an unsolicited bona fide written Takeover Proposal made after the date of this Agreement, subject to compliance with the Companyother terms of this Section 5.3, the Company Board or Broadcom, as applicable, shall be permitted to (or a duly authorized committee thereofA) and the Company’s Representatives may engage in discussions and negotiations and discussions with, or furnish any information and other access to, any with the Person making who has made such Takeover Acquisition Proposal and (B) provide any of its Representatives or potential sources of financing if nonpublic information in response to a request therefor to the Person who has made such Acquisition Proposal if, prior to so providing such information, the Company Board determines in good faithor Broadcom, after consultation as applicable, first enters into a confidentiality agreement with the Company’s outside legal and financial advisors, Person who has made such Acquisition Proposal having provisions that are no less favorable to such Takeover Proposal is or could reasonably be expected to lead to a Superior ProposalParty than those contained in the Confidentiality Agreement; provided that prior to engaging taking any action described in any negotiations clause (A) or discussions with, or furnishing any information to, any such Person or its Representatives(B) above, the Company Board of Directors or the Broadcom Board of Directors, as applicable, determines in good faith after consultation with outside legal counsel that (1) based on the information then available and after consultation with its financial advisors, such Acquisition Proposal either constitutes a Superior Proposal or is reasonably likely to result in a Superior Proposal and (2) the Person making failure to take such Takeover Proposal shall have entered into an Acceptable Confidentiality Agreementaction would be inconsistent with the fiduciary duties of the directors of the applicable board under applicable Law. The Company will or Broadcom, as applicable, shall provide the other with a copy of any nonpublic information provided to any Person pursuant to the prior sentence prior to or simultaneously with furnishing such information to such Person, unless such information has been previously made available to Broadcom or the Company, as applicable.
(ii) Each of the Company and Broadcom shall notify the other Party promptly (and but in any no event within the later of than twenty-four (24) hours hours) after receipt of any Acquisition Proposal, or 5:00 p.m. New York City time on any request for nonpublic information relating to such Party or any of its Subsidiaries by any Person that informs such Party or any of its Subsidiaries that it is considering making, or has made, an Acquisition Proposal, or any inquiry from any Person seeking to have discussions or negotiations with such Party relating to a possible Acquisition Proposal. Such notice shall be made orally and confirmed in writing, and shall indicate the next Business Day) notify Parent in writing identity of the receipt of such Takeover person making the Acquisition Proposal, inquiry or request and the material terms and conditions of any such Takeover Proposal inquiries, proposals or offers (including a copy thereof if in writing and the identity of the Person making such Takeover Proposalany related material documentation or material correspondence, including proposed agreements). The Company will keep Parent informed in all material respects on a prompt basis (Each Party shall also promptly, and in any event within the later of twenty-four (24) hours hours, notify the other Party, orally and in writing, if it enters into discussions or 5:00 p.m. New York City time on negotiations concerning any Acquisition Proposal or provides nonpublic information to any person in accordance with this Section 5.3(b) and keep the next Business Day) other Party reasonably informed of the status and terms of any such proposals, offers, discussions or negotiations on a reasonably current basis, including by providing a copy of all material terms documentation or material correspondence relating thereto, including proposed agreements and status of such Takeover Proposal (including any material change in the price or any other material terms thereof). The Company shall not terminate, amend, modify, waive or fail to enforce any provision of any “standstill” or similar obligation of any Person unless the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Lawintentions as previously notified.
(ciii) Except as otherwise provided in this AgreementSection 5.3(b)(iv) or Section 5.3(b)(v), neither the Company Board of Directors nor the Broadcom Board of Directors, nor any committee thereof thereof, shall (i)(AA) withhold, withdraw, change, qualify, withhold qualify or modify, or publicly propose to withdraw, change, qualify, withhold or modify, modify in a any manner adverse to Parentthe other Party, or propose publicly or resolve to withhold, withdraw, qualify or modify in any manner adverse to the other Party, the Company Board Recommendation or the Broadcom Board Recommendation, as applicable, (B) adoptif any tender offer or exchange offer that constitutes an Acquisition Proposal with respect to the applicable Party is commenced, approve or recommendrecommend in favor of such Acquisition Proposal or, or publicly propose to adopt, approve or recommend, any Takeover Proposal, (C) fail to include in the Proxy Statement the Company Board Recommendation, (D) fail to recommend against any Takeover Proposal subject to Regulation 14D under the Exchange Act in any solicitation or recommendation statement made on Schedule 14D-9 within ten (10) Business Days after Parent so requests reaffirmation in writing (providedthe commencement thereof, that Parent shall be entitled fail to make recommend against such a written request for reaffirmation only once for each Takeover Proposal and once for each material amendment to such Takeover Acquisition Proposal), or (EC) resolve at any time after the public announcement of an Acquisition Proposal with respect to the applicable Party, fail to publicly recommend against such Acquisition Proposal or fail to publicly propose reaffirm the Company Board Recommendation or the Broadcom Board Recommendation, as applicable, in each case within ten (10) Business Days after receipt of written request by the other Party to do any of the foregoing so (any action described referred to in the foregoing clauses (A), (B) and/or this clause (iC) being referred to herein as a “Company Adverse Recommendation Change”) Change of Recommendation” or (ii) cause or permit the Company or any of its Affiliates to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, agreement or commitment (other than an Acceptable Confidentiality Agreement) constituting, or that would reasonably be expected to lead to, any Takeover Proposal (a “Company Acquisition Agreement”Broadcom Change of Recommendation,” as applicable).
(div) Notwithstanding anything in this Agreement to the contrary in (but subject to this AgreementSection 5.3(b)(iv)), at any time prior to obtaining the Company Shareholder Approval, Meeting (in the case of the Company Board of Directors) or the Broadcom Special Meeting or the Broadcom Redomiciliation Meeting (or a duly authorized committee thereofas applicable) may make a Company Adverse Recommendation Change (andin the case of the Broadcom Board of Directors), solely with respect to a Superior an Acquisition Proposal, the Company Board of Directors or the Broadcom Board of Directors, as applicable, may make a Company Change of Recommendation or a Broadcom Change of Recommendation, as applicable, or may authorize the Company or Broadcom, as applicable, to terminate this Agreement pursuant to Section 7.1(d)(ii)), if (i) (A) a Company Intervening Event has occurred or (B) the Company has received a Superior Proposal other than as a result of a breach of this Section 5.3 (other than immaterial breach)enter into an Acquisition Agreement, in each case, if and only if (A) an unsolicited bona fide written Acquisition Proposal (that did not result from a breach of this Section 5.3) is made to the Company or Broadcom, as applicable, by a third party, and such Acquisition Proposal is not withdrawn, (B) the Company Board (of Directors or a duly authorized committee thereof) the Broadcom Board of Directors, as applicable, determines in good faithfaith (after consultation with its outside legal counsel and financial advisors) that such Acquisition Proposal constitutes a Superior Proposal, (C) the Company Board of Directors or the Broadcom Board of Directors, as applicable, has determined in good faith (after consultation with its outside legal counsel, ) that the failure to make a Company Adverse Recommendation Change as a result of the occurrence of such Company Intervening Event or in response to the receipt of such Superior Proposal, as the case may be, do so would reasonably be expected to be inconsistent with its the fiduciary duties of the directors of the applicable board under applicable Law and Law, (iiD) (A) the Company provides Parent prior written notice of its intent to make any Company Adverse Recommendation Change or terminate this Agreement pursuant to Section 7.1(d)(ii) at least four (4) Business Days prior shall have elapsed since the time the Party proposing to taking take such action has given written notice to the effect thatother Party advising such other Party that the notifying Party intends to take such action and specifying in reasonable detail the reasons therefor, absent any modification to including the terms and conditions of this Agreement, the Company Board has resolved to effect a Company Adverse Recommendation Change or to terminate this Agreement pursuant to Section 7.1(d)(ii), which notice shall specify any such Superior Proposal that is the basis for such Company Adverse Recommendation Change or termination and attaching the most current draft of any Company Acquisition Agreement with respect to, the Superior Proposal (or, if no such draft exists, a summary of the material terms and conditions of such Superior Proposal), if applicable proposed action (a “Notice of Superior Proposal Recommendation Change”) (it being understood and agreed that any amendment to any material term of such Notice of Recommendation Change shall not in itself be deemed a Company Adverse Recommendation Change and that Superior Proposal (including any change in price the form or material revision or amendment to the terms amount of a Superior Proposal, if applicable, consideration) shall require a new notice to which the provisions Notice of clauses Superior Proposal Recommendation Change and an additional three (ii)(A3)-Business Day period or periods), (B) and (C) of this Section 5.3(d) shall apply mutatis mutandis except that, in the case of such a new notice, all references to four (4) Business Days in this Section 5.3(d) shall be deemed to be two (2) Business Days); (BE) during such four (4) Business 4)-Business Day period, if requested by Parentperiod (or additional three (3)-Business Day period or periods), the Company shall make its Representatives available to negotiate notifying Party has considered and, at the reasonable request of the other Party, engaged in good faith discussions with Parent and its Representatives regarding such Party regarding, any modifications to the terms and conditions adjustment or modification of this Agreement that Parent proposes to make; and (C) at the end of such four (4) Business Day period and taking into account any modifications to the terms of this Agreement proposed by Parentthe other Party, if anyand (F) the applicable board of directors proposing to take such action, following such four (4)-Business Day period (or additional three (3)-Business Day period or periods), again determines in good faith (after consultation with outside legal counsel and financial advisors, and taking into account any adjustment or modification of the terms of this Agreement proposed by the other Party) that such Alternative Proposal constitutes a Superior Proposal and failure to do so would be inconsistent with the fiduciary duties of the directors of the applicable board under applicable Law; provided that, in a writtenthe case of termination of this Agreement to enter into an Acquisition Agreement pursuant to this Section 5.3(b)(iv), binding (x) the terminating Party shall pay or cause to be paid to the other Party the Company Termination Fee or the Broadcom Termination Fee, as applicable, in connection with such termination and irrevocable offer(y) neither Party nor any Subsidiary thereof shall enter into any Acquisition Agreement unless this Agreement has been or is substantially concurrently terminated in accordance with its terms.
(v) Notwithstanding anything in this Agreement to the contrary (but subject to this Section 5.3(b)(v)), prior to the Company Meeting (in the case of the Company Board of Directors) or the Broadcom Special Meeting or the Broadcom Redomiciliation Meeting (as applicable) (in the case of the Broadcom Board of Directors), in circumstances not involving or relating to an Acquisition Proposal, the Company Board of Directors or the Broadcom Board of Directors, as applicable, may make a Company Change of Recommendation or Broadcom Change of Recommendation, as applicable, if and only if (A) a material change or development relating to the business and operations of such Party has occurred or arisen after the date of this Agreement that was neither known to such Party or its directors nor reasonably foreseeable as of the date of this Agreement (and which change or development does not involve or relate to (1) an Acquisition Proposal, (2) any change in the price or trading volume of Broadcom Ordinary Shares or Company Shares or any other securities of Broadcom, the Company or any Subsidiary thereof or (3) any change in credit rating or failure to meet forecasts, projections or estimates), (B) the Company Board of Directors or the Broadcom Board of Directors, as applicable, has determined in good faith (after consultation with outside legal counsel) that failure to do so would be inconsistent with the fiduciary duties of the directors of the applicable board under applicable Law, (C) four (4) Business Days shall have elapsed since the time the Party proposing to take such action has given written notice to the other Party advising such other Party that the notifying Party intends to take such action and specifying in reasonable detail the reasons therefor, (D) during such four (4)-Business Day period, the notifying Party has considered and, at the reasonable request of the other Party, engaged in good faith discussions with such Party regarding, any adjustment or modification of the terms of this Agreement proposed by the other Party, and (E) the applicable board of directors proposing to take such action, following such four (4)-Business Day period, again determines in good faith (after consultation with outside legal counsel, and taking into account any adjustment or modification of the terms of this Agreement proposed by the other Party) that failure to do so would be inconsistent with the fiduciary duties of the directors of the applicable board under applicable Law.
(vi) Nothing contained in this Section 5.3 shall prohibit the Company Board of Directors or the Broadcom Board of Directors, as applicable, from: (A) taking and disclosing to the stockholders of the Company or the shareholders of Broadcom, as applicable, a position contemplated by Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act or (B) making any “stop, look and listen” communication to the stockholders of the Company or the shareholders of Broadcom, as applicable pursuant to Rule 14d-9(f) promulgated under the Exchange Act; provided that any such disclosure shall be deemed to be a Company Change of Recommendation or Broadcom Change of Recommendation, as applicable, unless the Company Board of Directors or the Broadcom Board of Directors, as applicable, expressly publicly reaffirms the Company Board Recommendation or Broadcom Board Recommendation, as applicable; provided, further, that the foregoing clause (A) or (B) shall not permit the Company Board of Directors or the Broadcom Board of Directors, as applicable, to make any Company Change of Recommendation or Broadcom Change of Recommendation, as applicable, except as permitted by and in compliance with Section 5.3(b)(iv) or Section 5.3(b)(v).
(c) Each of the Company and Broadcom agrees that (i) it will and will cause its Subsidiaries, and its and their Representatives to, immediately cease and terminate any and all existing activities, discussions or negotiations with any third parties conducted heretofore with respect to any Acquisition Proposal, and demand the return or destruction of all confidential, non-public information and materials that have been provided to third parties relating to a possible Acquisition Proposal, and (ii) it will not release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which it or any of its Subsidiaries is a party with respect to any Acquisition Proposal, and will use reasonable efforts to enforce the provisions of such agreements; provided that, in the case of this clause (ii), the Company Board of Directors or the Broadcom Board of Directors, as applicable, may waive any such standstill provision solely to permit a third party (that has not been solicited in violation of this Section 5.3) to make an Acquisition Proposal if such board determines in good faith (after consultation with outside legal counsel) that the failure to make such a Company Adverse Recommendation Change do so would reasonably be expected to be inconsistent with its the fiduciary duties of the directors of the applicable board under applicable Law, and that, in the case of a Company Adverse Recommendation Change with respect to a Takeover Proposal, such Takeover Proposal still constitutes a Superior Proposal.
(e) Nothing contained in this Agreement shall prohibit the Company or the Company Board (or a duly authorized committee thereof) from (i) taking and disclosing to the shareholders of the Company a position contemplated by Rule 14e-2(a) under the Exchange Act or making a statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9 under the Exchange Act, (ii) making any disclosure to the shareholders of the Company if the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure to make such disclosure would be reasonably likely to be inconsistent with applicable Law, (iii) informing any Person of the existence of the provisions contained in this Section 5.3 or (iv) making any “stop, look and listen” communication to the shareholders of the Company pursuant to Rule 14d-9(f) under the Exchange Act.
(f) As used in this Agreement, “Takeover Proposal” shall mean any inquiry, proposal or offer (whether or not in writing) from any Person (other than Parent, Merger Sub and any of its Affiliates thereof) to purchase or otherwise acquire, directly or indirectly, in a single transaction or series of related transactions, (a) assets of the Company and its Subsidiaries (including securities of Subsidiaries) that account for 15% or more of the Company’s consolidated assets or from which 15% or more of the Company’s revenues or earnings on a consolidated basis are derived or (b) 15% or more of the outstanding Company Common Stock pursuant to a merger, consolidation or other business combination, sale or issuance of shares of capital stock, tender offer, share exchange, other business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company, in each case other than the Merger.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Broadcom Cayman L.P.)
No Solicitation; Change in Recommendation. (a) The Company agrees that it shall, and shall cause its Subsidiaries and its and its Subsidiaries’ directors, respective directors and officers and employees to, and shall use its reasonable best efforts to cause its other Representatives to, cease immediately cease all existing discussions or negotiations with any Person or its Representatives conducted heretofore with respect to any Takeover Proposal, immediately request the prompt return or destruction of all confidential information previously furnished and immediately terminate all physical and electronic data room access previously granted to by any such Person or its RepresentativesRepresentative to any online data room maintained by or behalf of the Company, and promptly request that any such Person and its Representatives promptly return or destroy all confidential information concerning the Company and its Subsidiaries previously furnished to them. Except as otherwise provided in this Agreement, from the date of this Agreement until the earlier of the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 7.1, the Company shall not, and shall cause its Subsidiaries and its and its Subsidiaries’ directors, respective directors and officers and employees not to, and shall use its reasonable best efforts to cause its other Representatives not to, directly or indirectly, (i) solicit, initiate, knowingly encourage facilitate, or knowingly facilitate encourage any Takeover Proposal or the making or consummation thereof or thereof, (ii) enter into, continue or otherwise participate in any discussions (except to notify such Person of the existence of the provisions of this Section 5.3) or negotiations regarding, or furnish to any Person any non-public information in connection withwith or for the purpose of knowingly encouraging or facilitating, a Takeover Proposal or any proposal or offer that could reasonably be expected to lead to a Takeover Proposal, or (iii) enter into any letter of intent, acquisition agreement, agreement in principle or similar agreement with respect to a Takeover Proposal or with respect to any proposal or offer that could reasonably be expected to lead to a Takeover Proposal.
(b) Notwithstanding anything to the contrary contained in Section 5.3(a), but subject to the last sentence of this AgreementSection 5.3(b), if the Company or any of its Subsidiaries, or any of its or their respective Representatives receives an unsolicited bona fide written Takeover Proposal made after the date of this Agreement, which did not result from any breach of this Section 5.3, the Company, the Company Board (or a duly authorized committee thereof) and the Company’s Representatives may engage shall be permitted to (i) furnish, pursuant to (and only pursuant to) an Acceptable Confidentiality Agreement, information with respect to the Company and each of its Subsidiaries to the Person who has made the Takeover Proposal; provided that the Company shall promptly (and in negotiations and discussions with, any event within 24 hours) provide to Parent any non-public information concerning the Company or furnish any information and other access to, its Subsidiaries that is provided to any Person making given such access and that was not previously provided to Parent, and (ii) participate in discussions or negotiations regarding such Takeover Proposal and any of its Representatives or potential sources of financing Proposal, in each case only if the Company Company’s Board of Directors determines in good faith, after consultation with the Company’s financial advisors and outside legal and financial advisorscounsel, that such Takeover Proposal is or could reasonably be expected to lead to or constitute a Superior Proposal; provided that prior to engaging in any negotiations or discussions with, or furnishing any information to, any such Person or its Representatives, the Company and the Person making such Takeover Proposal shall have entered into an Acceptable Confidentiality Agreement. The Company will promptly (and in any event within the later of twenty-four (24) hours or 5:00 p.m. New York City time on the next Business Day24 hours) notify Parent in writing of the receipt of such any inquiries, proposals, or offers with respect to a Takeover Proposal by the Company or any of its Subsidiaries or Representatives and provide Parent with a copy of any written Takeover Proposal received (including any written agreements, arrangements, understandings, forms of agreements supplied to third parties, and any other material documents with respect to the Takeover Proposal, the material terms ) and conditions of a written statement with respect to any such non-written Takeover Proposal and or inquiry received, which statement shall include the identity of the Person parties making such the Takeover ProposalProposal or inquiry and the material terms thereof. The Company will keep Parent informed reasonably apprised in all material respects on a prompt reasonably current basis (and in any event within the later of twenty-four (24) hours or 5:00 p.m. New York City time on the next Business Day) of the material terms status and status content of such any discussions regarding any Takeover Proposal (including any change in the price or any other material terms thereof)with a third party. The Company shall agrees that it and its Subsidiaries will not terminate, amend, modify, waive or fail to enforce enter into any provision of any “standstill” or similar obligation of confidentiality agreement with any Person unless subsequent to the date hereof which prohibits the Company Board (from providing any information to Parent in accordance with this Section 5.3 or a duly authorized committee thereof) determines in good faith, after consultation otherwise prohibit the Company from complying with its outside legal counsel, that the failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties obligations under applicable Lawthis Section 5.3.
(c) Except as otherwise provided in this AgreementAgreement (including Section 5.3(d) or Section 5.3(e)), neither the Company Board nor any committee thereof shall (i)(A) withdraw, change, qualify, withhold or modify, or publicly propose to withdraw, change, qualify, withhold or modify, in a manner adverse to Parent, the Company Board Recommendation, (B) adopt, approve or recommend, or publicly propose to adopt, approve or recommend, any Takeover Proposal, (C) fail to include in the Proxy Statement the Company Board Recommendation, Recommendation in the Schedule 14D-9 or (D) fail to recommend against any in the event a tender offer that constitutes a Takeover Proposal subject to Regulation 14D under the Exchange Act is commenced, fail to recommend against such Takeover Proposal in any solicitation or recommendation statement made on Schedule 14D-9 within ten (10) Business Days after Parent so requests reaffirmation in writing (provided, that Parent shall be entitled to make such a written request for reaffirmation only once for each Takeover Proposal and once for each material amendment to such Takeover Proposal), or (E) resolve or publicly propose to do any of the foregoing (any action described in this clause (i) being referred to herein as a “Company Adverse Recommendation Change”) or (ii) cause or permit the Company or any of its Affiliates to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, agreement or commitment (other than an Acceptable Confidentiality Agreement) constituting, or that would reasonably be expected to lead to, providing for any Takeover Proposal (a “Company Acquisition Agreement”).
(d) Notwithstanding anything to the contrary in this Agreement, at any time prior to obtaining :
(i) if the Company Shareholder Approvalhas received a bona fide written Takeover Proposal (which Takeover Proposal did not arise out of a breach of Section 5.3) that has not been withdrawn and the Company’s Board of Directors (or a duly authorized committee thereof) determines in good faith, after consultation with its financial advisors and outside legal counsel, that such Takeover Proposal constitutes a Superior Proposal, the Company Company’s Board of Directors (or a duly authorized committee thereof) may make a Company Adverse Recommendation Change (and, solely with respect to a Superior Proposal, and/or terminate this Agreement pursuant to Section 7.1(d)(ii))) to accept such Takeover Proposal, if and only if (i) (A) a Company Intervening Event has occurred or (B) the Company has received a Superior Proposal other than as a result of a breach of this Section 5.3 (other than immaterial breach), in each case, if the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure to make a Company Adverse Recommendation Change as a result of the occurrence of such Company Intervening Event or in response to the receipt of such Superior Proposal, as the case may be, Proposal would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law and (ii) (A) the Company provides Parent prior written notice of its intent to make any Company Adverse Recommendation Change or take such action and terminate this Agreement pursuant to Section 7.1(d)(ii) at least four five (45) Business Days prior to taking such action to the effect that, absent any modification to the terms and conditions of this Agreement, the Company Board has resolved to effect a Company Adverse Recommendation Change or to terminate this Agreement pursuant to Section 7.1(d)(ii)action, which notice shall specify the basis for such Company Adverse Recommendation Change or termination and attaching attach the most current draft of any Company Acquisition Agreement with respect to, the to such Superior Proposal (or, if no such draft exists, a summary of the material terms and conditions of such Superior Proposal), if applicable Proposal (a “Notice of Intended Recommendation Change”) (it being understood that such Notice of Intended Recommendation Change shall not in itself be deemed a Company Adverse Recommendation Change and that any change in price or material revision or amendment to the terms of a Superior Proposal, if applicable, shall require a new notice to which the provisions of clauses (ii)(A), (B) and (C) of this Section 5.3(d5.3(d)(i) shall apply mutatis mutandis except that, in the case of such a new notice, all references to four five (45) Business Days in this Section 5.3(d5.3(d)(i) shall be deemed to refer to be two three (23) Business Days); (B) during such four five (45) Business Day period, if requested by period following Parent’s receipt of the Notice of Intended Recommendation Change, the Company shall, and shall make cause its financial and legal advisors and other Representatives available to to, negotiate in good faith with Parent and its Representatives regarding any modifications (if Parent has requested that they negotiate) to make such adjustments in the terms and conditions of this Agreement that Parent proposes to make; and (C) at the end of such four five (45) Business Day period and taking into account any modifications to the terms of this Agreement proposed by Parent, if any, Parent to the Company in a written, binding and irrevocable offer, the Company Board determines in good faith (after consultation with outside legal counsel) that the failure to make such a Company Adverse Recommendation Change would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, and that, in the case of a Company Adverse Recommendation Change with respect to a Takeover Proposal, that such Takeover Proposal still constitutes a Superior Proposal; or
(ii) other than in connection with a Takeover Proposal, the Company’s Board of Directors (or a duly authorized committee thereof) may make a Company Adverse Recommendation Change in response to a Company Intervening Event, if and only if: (A) the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law; (B) the Company then provides written notice to Parent (a “Notice of Intended Intervening Event”) that the Company intends to take such action and describing the Company Intervening Event that is the basis for such action in reasonable detail (it being understood that such Notice of Intended Intervening Event shall not in itself be deemed a Company Adverse Recommendation Change); (C) during the five (5) Business Day period following Parent’s receipt of the Notice of Intended Intervening Event, the Company shall, and shall cause its financial and legal advisors and other Representatives to, negotiate with Parent (if Parent has requested that they negotiate) to make such adjustments in the terms and conditions of this Agreement so that such Company Intervening Event would no longer necessitate a Company Adverse Recommendation Change; and (D) following the end of such five (5) Business Day period, the Company’s Board of Directors shall then have determined in good faith, taking into account any changes to the terms of this Agreement proposed by Parent to the Company in a written, binding and irrevocable offer in response to the Notice of Intended Intervening Event, that the failure to effect a Company Adverse Recommendation Change in response to such Company Intervening Event would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law.
(e) Nothing contained in this Agreement shall prohibit the Company or the Company Board (or a duly authorized committee thereof) from (i) taking and disclosing to the shareholders stockholders of the Company a position contemplated by Rule 14e-2(a) under the Exchange Act or making a statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9 under the Exchange Act, (ii) making any disclosure to the shareholders stockholders of the Company if the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure to make such disclosure would be reasonably likely to be inconsistent with applicable Law, (iii) informing any Person of the existence of the provisions contained in this Section 5.3 or (iv) making any “stop, look and listen” communication to the shareholders stockholders of the Company pursuant to Rule 14d-9(f) under the Exchange ActAct (or any similar communication to the stockholders of the Company). No disclosures under this Section 5.3(e) shall be, in themselves, a breach of Section 5.3 or a basis for Parent to terminate this Agreement pursuant to Article VII.
(f) As used in this Agreement, “Takeover Proposal” shall mean any inquiry, proposal or offer (whether or not in writing) from any Person (other than Parent, Merger Sub and or any of its Affiliates thereof) to purchase or otherwise acquire, directly or indirectly, in a single transaction or series of related transactions, (ai) assets of the Company and its Subsidiaries (including securities of Subsidiaries, but excluding sales of assets in the ordinary course of business) that account for 1520% or more of the Company’s consolidated assets or from which 1520% or more of the Company’s revenues or earnings on a consolidated basis are derived or (bii) 1520% or more of the outstanding Company Common Stock pursuant to a merger, consolidation or other business combination, sale or issuance of shares of capital stock, tender offer, share exchange, other business combination, recapitalization, liquidation, dissolution recapitalization or similar transaction involving the Company, in each case other than the Merger.
Appears in 1 contract
No Solicitation; Change in Recommendation. (a) The During the period beginning on the date of this Agreement and continuing until 12:01 a.m. Eastern Time on June 21, 2006 (the “No-Shop Period Start Date”), the Company agrees and its Subsidiaries and their respective officers, directors, employees, agents, advisors (including financial advisors), affiliates and other representatives (such Persons, together with the Subsidiaries of the Company, collectively, the “Company Representatives”) shall have the right to: (i) initiate, solicit and encourage Takeover Proposals, including by way of providing access to non-public information to any other Person pursuant to a confidentiality agreement on terms no more favorable to such Person than those contained in the Confidentiality Agreement; provided that it the Company shall promptly provide to Newco any material non-public information concerning the Company or its Subsidiaries that is provided to any Person given such access which was not previously provided to Newco; and (ii) enter into and maintain or continue discussions or negotiations with respect to Takeover Proposals or otherwise cooperate with or assist or participate in, or facilitate any such inquiries, proposals, discussions or negotiations.
(b) Subject to Section 6.2(c) and except as may relate to any Person or group of related Persons from whom the Company has received, after the date hereof and prior to the No-Shop Period Start Date, a bona fide written Takeover Proposal that the Board of Directors or any committee thereof believes in good faith after consultation with a financial advisor of nationally recognized reputation, such as Gxxxxxx Sxxxx or Mxxxxx Sxxxxxx, that such Takeover Proposal constitutes or could reasonably be expected to lead to a Superior Proposal (any such Person or group of related Persons, an “Excluded Party”), the Company shall, and the Company shall cause its Subsidiaries and its and its Subsidiaries’ directors, officers and employees to, and shall use its reasonable best efforts to cause its other the Company Representatives to, (i) from the date hereof, not modify, waive, amend or release any standstill, confidentiality or similar agreements entered into with such parties or any confidentiality agreement entered into by the Company or any of its Subsidiaries in respect of or in contemplation of a Takeover Proposal; (ii) on the No-Shop Period Start Date, immediately cease all existing any discussions or negotiations with any Person conducted heretofore parties that may be ongoing with respect to any a Takeover ProposalProposal and, immediately if not already so requested, request the prompt return or destruction of all confidential information previously furnished to such parties or their representatives within the last 18 months; and immediately terminate all physical and electronic data room access previously granted to any such Person or its Representatives. Except as otherwise provided in this Agreement, (iii) from the date No-Shop Period Start Date until the Effective Time or, if earlier, the termination of this Agreement until the earlier of the Effective Time or the datein accordance with Article IX, if any, on which this Agreement is terminated pursuant to Section 7.1, the Company shall not, and shall cause its Subsidiaries and its and its Subsidiaries’ directors, officers and employees not to, and shall use its reasonable best efforts to cause its other Representatives not to, directly or indirectly, (iA) solicit, initiate, knowingly encourage propose or knowingly facilitate or encourage (including by way of furnishing non-public information or providing access to its properties, books, records or personnel) any Takeover Proposal inquiries regarding, or the making of any proposal or consummation thereof or (ii) enter intooffer that constitutes, or otherwise could reasonably be expected to result in, a Takeover Proposal, (B) initiate or participate in any discussions (except to notify such Person of the existence of the provisions of this Section 5.3) or negotiations regarding, regarding a Takeover Proposal or furnish or disclose to any Person (other than Newco or its representatives) any information in connection with, or which would reasonably be expected to result in, any Takeover Proposal, (C) otherwise cooperate with, or assist or participate in, or knowingly facilitate or encourage any effort or attempt by any Person (other than Newco or its representatives) with respect to, or which would reasonably be expected to result in, a Takeover Proposal, or (D) exempt any Person from the restrictions contained in any state takeover or similar laws, including Section 203 of the DGCL or otherwise cause such restrictions not to apply.
(bc) Notwithstanding anything to the contrary contained in Section 6.2(b) but subject to the last sentence of this AgreementSection 6.2(c), if if, at any time following the No-Shop Period Start Date and prior to obtaining the Company or any of its SubsidiariesStockholder Approval, or any of its or their respective Representatives receives in response to an unsolicited bona fide written Takeover Proposal by any Person, which Takeover Proposal was made after the date of this AgreementNo-Shop Period Start Date, the Company, Board of Directors of the Company Board (or a duly authorized any committee thereof) and the Company’s Representatives may engage in negotiations and discussions with, or furnish any information and other access to, any Person making such Takeover Proposal and any of its Representatives or potential sources of financing if the Company Board thereof determines in good faith, faith (i) after consultation with the Company’s outside legal and a financial advisorsadvisor of nationally recognized reputation, such as Gxxxxxx Sachs or Mxxxxx Sxxxxxx, that such Takeover Proposal is constitutes or could reasonably be expected to lead to a Superior Proposal; provided that prior to engaging in any negotiations or discussions with, or furnishing any information to, any such Person or its Representatives, the Company and the Person making such Takeover Proposal shall have entered into an Acceptable Confidentiality Agreement. The Company will promptly (and in any event within the later of twenty-four (24) hours or 5:00 p.m. New York City time on the next Business Day) notify Parent in writing of the receipt of such Takeover Proposal, the material terms and conditions of any such Takeover Proposal and the identity of the Person making such Takeover Proposal. The Company will keep Parent informed in all material respects on a prompt basis (and in any event within the later of twenty-four (24ii) hours or 5:00 p.m. New York City time on the next Business Day) of the material terms and status of such Takeover Proposal (including any change in the price or any other material terms thereof). The Company shall not terminate, amend, modify, waive or fail to enforce any provision of any “standstill” or similar obligation of any Person unless the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure actions set forth in clauses (x) and (y) below with respect to take such action would reasonably be expected to be inconsistent with Takeover Proposal are required by its fiduciary duties under applicable Law.
(c) Except as otherwise provided in this Agreement, neither the Company Board nor any committee thereof shall (i)(A) withdraw, change, qualify, withhold or modify, or publicly propose to withdraw, change, qualify, withhold or modify, in a manner adverse to Parentlaw, the Company Board Recommendationmay, (B) adopt, approve or recommend, or publicly propose in response to adopt, approve or recommend, any such Takeover Proposal, (Cx) fail furnish information (including non-public information) with respect to include in the Proxy Statement the Company Board Recommendation, (D) fail and its Subsidiaries to recommend against any Takeover Proposal subject to Regulation 14D under the Exchange Act in any solicitation or recommendation statement Person who has made on Schedule 14D-9 within ten (10) Business Days after Parent so requests reaffirmation in writing (provided, that Parent shall be entitled to make such a written request for reaffirmation only once for each Takeover Proposal and once for each material amendment to such Takeover Proposal, pursuant to a confidentiality agreement on terms no more favorable to such Person than those contained in the Confidentiality Agreement and (y) participate in discussions and negotiations regarding such Takeover Proposal. On the No-Shop Period Start Date, the Company shall advise Newco orally and in writing of the number (but not identities) of Excluded Parties and provide to Newco (within 48 hours), or at the Company’s option, either (Ex) resolve or publicly propose a copy of all written materials provided to do any of the foregoing (any action described in this clause (i) being referred to herein as a “Company Adverse Recommendation Change”) or (ii) cause or permit the Company or any of its Affiliates to execute or enter into, any letter of intent, memorandum of understanding, agreement Subsidiaries in principle, agreement or commitment (other than an Acceptable Confidentiality Agreement) constituting, or that would reasonably be expected to lead to, any connection with each Takeover Proposal received from an Excluded Party or (a “Company Acquisition Agreement”).
(d) Notwithstanding anything to the contrary in this Agreement, at any time prior to obtaining the Company Shareholder Approval, the Company Board (or a duly authorized committee thereof) may make a Company Adverse Recommendation Change (and, solely with respect to a Superior Proposal, terminate this Agreement pursuant to Section 7.1(d)(ii)), if (i) (Ay) a Company Intervening Event has occurred or (B) the Company has received a Superior Proposal other than as a result of a breach of this Section 5.3 (other than immaterial breach), in each case, if the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure to make a Company Adverse Recommendation Change as a result of the occurrence of such Company Intervening Event or in response to the receipt of such Superior Proposal, as the case may be, would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law and (ii) (A) the Company provides Parent prior written notice of its intent to make any Company Adverse Recommendation Change or terminate this Agreement pursuant to Section 7.1(d)(ii) at least four (4) Business Days prior to taking such action to the effect that, absent any modification to the terms and conditions of this Agreement, the Company Board has resolved to effect a Company Adverse Recommendation Change or to terminate this Agreement pursuant to Section 7.1(d)(ii), which notice shall specify the basis for such Company Adverse Recommendation Change or termination and attaching the most current draft of any Company Acquisition Agreement with respect to, the Superior Proposal (or, if no such draft exists, a summary of the material terms and conditions of such Superior Proposal), if applicable (a “Notice of Recommendation Change”) (it being understood that such Notice of Recommendation Change shall not in itself be deemed a Company Adverse Recommendation Change and that any change in price or material revision or amendment to each Takeover Proposal received from an Excluded Party. Following the terms of a Superior Proposal, if applicable, shall require a new notice to which the provisions of clauses (ii)(A), (B) and (C) of this Section 5.3(d) shall apply mutatis mutandis except that, in the case of such a new notice, all references to four (4) Business Days in this Section 5.3(d) shall be deemed to be two (2) Business Days); (B) during such four (4) Business Day period, if requested by ParentNo-Shop Period Start Date, the Company shall make its Representatives available to negotiate promptly advise Newco orally and in good faith with Parent and its Representatives regarding any modifications to the terms and conditions of this Agreement that Parent proposes to make; and (C) at the end of such four (4) Business Day period and taking into account any modifications to the terms of this Agreement proposed by Parent, if any, in a written, binding and irrevocable offer, the Company Board determines in good faith (after consultation with outside legal counsel) that the failure to make such a Company Adverse Recommendation Change would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, and that, in the case of a Company Adverse Recommendation Change with respect to a Takeover Proposal, such Takeover Proposal still constitutes a Superior Proposal.
(e) Nothing contained in this Agreement shall prohibit the Company or the Company Board (or a duly authorized committee thereof) from (i) taking and disclosing to the shareholders writing of the Company a position contemplated receipt by Rule 14e-2(a) under the Exchange Act it or making a statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9 under the Exchange Act, (ii) making any disclosure to the shareholders of the Company if the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure to make such disclosure would be reasonably likely to be inconsistent with applicable Law, (iii) informing any Person of the existence of the provisions contained in this Section 5.3 or (iv) making any “stop, look and listen” communication to the shareholders of the Company pursuant to Rule 14d-9(f) under the Exchange Act.
(f) As used in this Agreement, “Takeover Proposal” shall mean any inquiry, proposal or offer (whether or not in writing) from any Person (other than Parent, Merger Sub and any of its Affiliates thereof) to purchase or otherwise acquire, directly or indirectly, in a single transaction or series of related transactions, (a) assets of the Company and its Subsidiaries (including securities of Subsidiaries) that account for 15% or more of the Company’s consolidated assets or from which 15% or more of the Company’s revenues or earnings on a consolidated basis are derived or (b) 15% or more of the outstanding Company Common Stock pursuant to a merger, consolidation or other business combination, sale or issuance of shares of capital stock, tender offer, share exchange, other business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company, in each case other than the Merger.any
Appears in 1 contract
Samples: Merger Agreement (West Corp)
No Solicitation; Change in Recommendation. (a) The Company agrees that it Seller and its Subsidiaries shall, and shall cause its Subsidiaries and its and its Subsidiaries’ directors, officers and employees to, and shall use its reasonable best efforts to cause its other direct their respective Representatives to, immediately cease all existing and cause to be terminated any discussions or negotiations with any Person conducted heretofore with respect to an Alternative Transaction Proposal. Except as otherwise expressly permitted by this Section 7.4, Seller and its Subsidiaries shall not, and shall use their reasonable best efforts to cause their Representatives not to, directly or indirectly (A) initiate, solicit or encourage (including by way of furnishing non-public information), or take any Takeover other action to facilitate, any inquiries regarding, or the making of any proposal or offer (including any proposal or offer to Seller’s shareholders) that constitutes, or could reasonably be expected to result in, an Alternative Transaction Proposal, immediately (B) engage in, continue or otherwise participate in any discussions or negotiations regarding an Alternative Transaction Proposal, (C) agree to, approve, endorse, recommend or consummate an Alternative Transaction Proposal, (D) enter into any Seller Acquisition Agreement, (E) take any action to approve a third party becoming an “interested stockholder,” or to approve any transaction with an “interested stockholder,” for purposes of Section 14A:10A-1 et seq. of the New Jersey Shareholders’ Protection Act or Seller’s Restated Certificate of Incorporation, as amended, or (F) resolve, propose or agree, or authorize or permit any Representative, to do any of the foregoing. Seller acknowledges and agrees that doing any of the foregoing by any Representative of Seller or any of its Subsidiaries shall be deemed to be a breach by Seller of this Section 7.4(a). Seller shall, within two (2) Business Days after the date of this Agreement, promptly request each Person that has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring the prompt Purchased Assets to return or destruction (or, if permitted by the applicable confidentiality agreement, destroy) all information required to be returned (or, if applicable, destroyed) by such Person under the terms of all confidential information previously furnished the applicable confidentiality agreement and, if requested by Purchaser, to enforce such Person’s obligation to do so and Seller shall immediately terminate all physical and electronic data room dataroom access previously granted to any such Person or its Representatives. Except as otherwise provided in this Agreement, from the date of this Agreement until the earlier of the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 7.1, the Company shall not, and shall cause its Subsidiaries and its and its Subsidiaries’ directors, officers and employees not to, and shall use its reasonable best efforts to cause its other Representatives not to, directly or indirectly, (i) solicit, initiate, knowingly encourage or knowingly facilitate any Takeover Proposal or the making or consummation thereof or (ii) enter into, or otherwise participate in any discussions (except to notify such Person of the existence of the provisions of this Section 5.3) or negotiations regarding, or furnish to any Person any information in connection with, any Takeover Proposal.
(b) Notwithstanding anything to the contrary contained in Section 7.4(a), but subject to Seller’s compliance in all material respects with the other provisions of this AgreementSection 7.4, if the Company or any board of its Subsidiaries, or any directors of its or their respective Representatives Seller receives an unsolicited unsolicited, written bona fide written Takeover Alternative Transaction Proposal made from a Person, that did not arise from a breach of this Section 7.4, after the date of this Agreement, Agreement and prior to the Company, date Seller obtains the Company Board Seller Shareholder Approval that the board of directors of Seller (or a duly authorized committee thereof) and the Company’s Representatives may engage in negotiations and discussions with, or furnish any information and other access to, any Person making such Takeover Proposal and any of its Representatives or potential sources of financing if the Company Board determines in good faithdetermines, after consultation with receiving the Company’s advice of outside legal counsel and an independent financial advisorsadvisor of nationally recognized reputation, that such Takeover Proposal is constitutes or could would reasonably be expected to lead to result in a Superior Proposal; provided that , then, prior to engaging in any negotiations or discussions withobtaining the Seller Shareholder Approval, or furnishing Seller may (i) furnish pursuant to an Acceptable Confidentiality Agreement any information to, any such Person or with respect to Seller and its Representatives, the Company and Subsidiaries to the Person making such Takeover Proposal shall have entered into an Acceptable Confidentiality Agreement. The Company will promptly (and in any event within the later of twenty-four (24) hours or 5:00 p.m. New York City time on the next Business Day) notify Parent in writing of the receipt of such Takeover Alternative Transaction Proposal, the material terms and conditions of provided that any such Takeover information must be provided to Purchaser simultaneously with or promptly following its provision to such Person to the extent reasonably practicable and not previously made available to Purchaser, and (ii) participate in discussions and negotiations with such Person regarding an Alternative Transaction Proposal and if, but only if, prior to taking the identity actions described in either of clause (i) or (ii), the Person making such Takeover Proposal. The Company will keep Parent informed in all material respects on a prompt basis (and in any event within the later board of twenty-four (24) hours or 5:00 p.m. New York City time on the next Business Day) directors of the material terms and status of such Takeover Proposal (including any change in the price or any other material terms thereof). The Company shall not terminate, amend, modify, waive or fail to enforce any provision of any “standstill” or similar obligation of any Person unless the Company Board Seller (or a duly authorized committee thereof) determines in good faith, (A) after consultation with its receiving advice from Seller’s outside legal counsel, determines in good faith that the failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law.
(c) Except as otherwise provided in this Agreement, neither the Company Board nor any committee thereof shall (i)(A) withdraw, change, qualify, withhold or modify, or publicly propose to withdraw, change, qualify, withhold or modify, in a manner adverse to Parent, the Company Board Recommendation, (B) adopt, approve or recommend, or publicly propose to adopt, approve or recommend, any Takeover Proposal, (C) fail to include in the Proxy Statement the Company Board Recommendation, (D) fail to recommend against any Takeover Proposal subject to Regulation 14D under the Exchange Act in any solicitation or recommendation statement made on Schedule 14D-9 within ten (10) Business Days after Parent so requests reaffirmation in writing (provided, that Parent shall be entitled to make such a written request for reaffirmation only once for each Takeover Proposal Seller and once for each material amendment to such Takeover Proposal), or (E) resolve or publicly propose to do any of the foregoing (any action described in this clause (i) being referred to herein as a “Company Adverse Recommendation Change”) or (ii) cause or permit the Company or any of its Affiliates to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, agreement or commitment (other than an Acceptable Confidentiality Agreement) constituting, or that would reasonably be expected to lead to, any Takeover Proposal (a “Company Acquisition Agreement”).
(d) Notwithstanding anything to the contrary in this Agreement, at any time prior to obtaining the Company Shareholder Approval, the Company Board (or a duly authorized committee thereof) may make a Company Adverse Recommendation Change (and, solely with respect to a Superior Proposal, terminate this Agreement pursuant to Section 7.1(d)(ii)), if (i) (A) a Company Intervening Event has occurred or (B) the Company has received a Superior Proposal other than as a result of a breach of this Section 5.3 (other than immaterial breach), in each case, if the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure to make a Company Adverse Recommendation Change as a result of the occurrence of such Company Intervening Event or in response to the receipt of such Superior Proposal, as the case may be, would reasonably be expected to be inconsistent with its fiduciary duties shareholders under applicable Law and (iiB) (A) obtains from such Person an Acceptable Confidentiality Agreement and, substantially simultaneously with its execution, delivers to Purchaser a copy of such Acceptable Confidentiality Agreement. For the Company provides Parent prior written notice of its intent to make any Company Adverse Recommendation Change or terminate this Agreement pursuant to Section 7.1(d)(ii) at least four (4) Business Days prior to taking such action to the effect that, absent any modification to the terms and conditions purposes of this Agreement, “Acceptable Confidentiality Agreement” means any confidentiality agreement entered into after the Company Board has resolved to effect a Company Adverse Recommendation Change or to terminate this Agreement pursuant to Section 7.1(d)(ii), which notice shall specify the basis for such Company Adverse Recommendation Change or termination and attaching the most current draft of any Company Acquisition Agreement with respect to, the Superior Proposal (or, if no such draft exists, a summary of the material terms and conditions of such Superior Proposal), if applicable (a “Notice of Recommendation Change”) (it being understood that such Notice of Recommendation Change shall not in itself be deemed a Company Adverse Recommendation Change and that any change in price or material revision or amendment to the terms of a Superior Proposal, if applicable, shall require a new notice to which the provisions of clauses (ii)(A), (B) and (C) of this Section 5.3(d) shall apply mutatis mutandis except that, in the case of such a new notice, all references to four (4) Business Days in this Section 5.3(d) shall be deemed to be two (2) Business Days); (B) during such four (4) Business Day period, if requested by Parent, the Company shall make its Representatives available to negotiate in good faith with Parent and its Representatives regarding any modifications to the terms and conditions date of this Agreement that Parent proposes to make; contains confidentiality and (C) at the end of such four (4) Business Day period and taking into account any modifications to the terms of this Agreement proposed by Parent, if any, in a written, binding and irrevocable offer, the Company Board determines in good faith (after consultation with outside legal counsel) standstill provisions that the failure to make such a Company Adverse Recommendation Change would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, and that, are no less favorable in the case of a Company Adverse Recommendation Change with respect aggregate to a Takeover Proposal, such Takeover Proposal still constitutes a Superior Proposal.
(e) Nothing Seller than those contained in this the Confidentiality Agreement shall prohibit the Company or the Company Board (or a duly authorized committee thereof) from (i) taking and disclosing to the shareholders of the Company a position contemplated by Rule 14e-2(a) under the Exchange Act or making a statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9 under the Exchange Act, (ii) making any disclosure to the shareholders of the Company if the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure to make such disclosure would be reasonably likely to be inconsistent with applicable Law, (iii) informing any Person of the existence of the provisions contained in this Section 5.3 or (iv) making any “stop, look and listen” communication to the shareholders of the Company pursuant to Rule 14d-9(f) under the Exchange Actas defined herein).
(f) As used in this Agreement, “Takeover Proposal” shall mean any inquiry, proposal or offer (whether or not in writing) from any Person (other than Parent, Merger Sub and any of its Affiliates thereof) to purchase or otherwise acquire, directly or indirectly, in a single transaction or series of related transactions, (a) assets of the Company and its Subsidiaries (including securities of Subsidiaries) that account for 15% or more of the Company’s consolidated assets or from which 15% or more of the Company’s revenues or earnings on a consolidated basis are derived or (b) 15% or more of the outstanding Company Common Stock pursuant to a merger, consolidation or other business combination, sale or issuance of shares of capital stock, tender offer, share exchange, other business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company, in each case other than the Merger.
Appears in 1 contract
No Solicitation; Change in Recommendation. (a) The During the Pre-Closing Period, the Company agrees that will not, nor will it shallauthorize or permit any of its officers, and shall cause its Subsidiaries and its and its Subsidiaries’ directors, officers and employees directors or affiliates to, and shall use will instruct its reasonable best efforts to cause its employees and any investment banker, attorney or other Representatives to, immediately cease advisor or representative retained by the Company (all existing discussions or negotiations with any Person conducted heretofore with respect to any Takeover Proposal, immediately request the prompt return or destruction of all confidential information previously furnished and immediately terminate all physical and electronic data room access previously granted to any such Person or its Representatives. Except as otherwise provided in this Agreement, from the date of this Agreement until the earlier of the Effective Time or foregoing collectively being the date, if any, on which this Agreement is terminated pursuant to Section 7.1, the “Company shall not, and shall cause its Subsidiaries and its and its Subsidiaries’ directors, officers and employees not to, and shall use its reasonable best efforts to cause its other Representatives Representatives”) not to, directly or indirectly, (i) solicit, solicit or initiate, knowingly encourage or knowingly facilitate encourage, directly or indirectly, any Takeover Proposal inquiries regarding or the making or consummation thereof or submission of, any Acquisition Proposal, (ii) enter into, or otherwise participate in any discussions (except to notify such Person of the existence of the provisions of this Section 5.3) or negotiations regarding, or furnish to any Person Third Party any confidential information in connection withor data with respect to, or knowingly facilitate the making of, an Acquisition Proposal, or (iii) subject to Section 5.2(d), enter into any Takeover agreement with respect to any Acquisition Proposal (other than a confidentiality agreement permitted pursuant to Section 5.2(c)) or approve or resolve to approve any Acquisition Proposal. On the Agreement Date, the Company shall, and it shall instruct the Company Representatives to, immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal.
(b) Notwithstanding anything to The Company will promptly and, in any event, within one Business Day, advise the contrary contained in this Agreement, if Acquiror of the existence of any Acquisition Proposal received by the Company or any of its Subsidiaries, or any of its or their respective Representatives receives an unsolicited bona fide written Takeover Proposal made after the date of this Agreement, the Company, the Company Board (or a duly authorized committee thereof) and the Company’s Representatives may engage in negotiations and discussions with, or furnish any information and other access to, any Person making such Takeover Proposal and any of its Representatives or potential sources of financing if the Company Board determines in good faith, after consultation with the Company’s outside legal and financial advisors, that such Takeover Proposal is or could reasonably be expected to lead to a Superior Proposal; provided that prior to engaging in any negotiations or discussions with, or furnishing any information to, any such Person or its Representatives, the Company and the Person making such Takeover Proposal shall have entered into an Acceptable Confidentiality AgreementAgreement Date. The Company will promptly (and in any event within communicate to the later of twenty-four (24) hours or 5:00 p.m. New York City time on the next Business Day) notify Parent in writing of the receipt of such Takeover Proposal, Acquiror the material terms and conditions of any such Takeover Proposal Acquisition Proposal, and will keep the identity Acquiror fully informed of the Person making such Takeover Proposal. The Company will keep Parent informed in all material respects on a prompt basis (status and in any event within the later of twenty-four (24) hours or 5:00 p.m. New York City time on the next Business Day) of the material terms and status of such Takeover Proposal (including any change in the price or any other material terms thereof). The Company shall not terminate, amend, modify, waive or fail to enforce any provision details of any “standstill” or similar obligation of any Person unless the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable LawAcquisition Proposal.
(c) Notwithstanding anything to the contrary in this Section 5.2, at any time during the Pre-Closing Period and prior to the Effective Time, if the Company has received from any Third Party a written inquiry or Acquisition Proposal, (i) the Company may contact such Third Party or its advisors for the purpose of clarifying such inquiry or Acquisition Proposal and the material terms and conditions thereof, so as to determine whether such inquiry or Acquisition Proposal is reasonably likely to lead to a Superior Proposal, (ii) the Company may negotiate the terms of, and enter into, a confidentiality agreement with such Third Party under terms similar to, and no less favorable to the Company than, the Confidentiality Agreements, and (iii) the Company may furnish information concerning its business, properties or assets to such Third Party pursuant to such a confidentiality agreement, and may negotiate and participate in discussions and negotiations with such Third Party concerning an Acquisition Proposal, if such Third Party has submitted a Superior Proposal, or an Acquisition Proposal that the Company Board determines in good faith (after consultation with its financial advisor) is reasonably likely to constitute or lead to a Superior Proposal.
(d) Except as otherwise provided set forth in this AgreementSection 5.2(d), neither the Company Board nor any committee thereof shall (i)(Ai) withdraw, change, qualify, withhold or modify, or publicly propose to withdraw, change, qualify, withhold withdraw or modify, in a manner adverse to Parentthe Acquiror or the Sub, the Company Board Recommendation (a “Change in Recommendation”), (Bii) adopt, approve or recommendrecommend any Acquisition Proposal or (iii) enter into any agreement with respect to any Acquisition Proposal (other than a confidentiality agreement permitted pursuant to Section 5.2(c)). Notwithstanding anything in this Agreement to the contrary, or publicly propose to adopt, approve or recommend, any Takeover Proposal, (C) fail to include in the Proxy Statement the Company Board Recommendation, (D) fail to recommend against any Takeover Proposal subject to Regulation 14D under the Exchange Act in any solicitation or recommendation statement made on Schedule 14D-9 within ten (10) Business Days after Parent so requests reaffirmation in writing (provided, that Parent shall be entitled to make such a written request for reaffirmation only once for each Takeover Proposal and once for each material amendment to such Takeover Proposal), or (E) resolve or publicly propose to do may take any of the foregoing actions if (any action described in this clause (iA) being referred to herein as a “Company Adverse Recommendation Change”) or (ii) cause or permit the Company or any of its Affiliates to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, agreement or commitment (other than an Acceptable Confidentiality Agreement) constituting, or that would reasonably be expected to lead to, any Takeover Proposal (a “Company Acquisition Agreement”).
(d) Notwithstanding anything to the contrary in this Agreement, at any time prior to obtaining the Company Shareholder Approval, the Company Board (or a duly authorized committee thereof) may make a Company Adverse Recommendation Change (and, solely with respect to a Superior Proposal, terminate this Agreement pursuant to Section 7.1(d)(ii)), if (i) (A) a Company Intervening Event has occurred or (B) the Company has received a Superior Proposal other than as a result of a breach of this Section 5.3 (other than immaterial breach), in each case, if the Company Board (or a duly authorized committee thereof) determines shall have determined in good faith, after consultation with its outside legal counsel, that the failure to make a Company Adverse Recommendation Change as a result of the occurrence of take such Company Intervening Event or in response to the receipt of such Superior Proposal, as the case may be, action would be reasonably be expected likely to be inconsistent with its the Company’s directors’ fiduciary duties under applicable Law to the Company Shareholders and (B) in the case of the actions referred to in clauses (ii) or (Aiii) of the preceding sentence, (x) the Company provides Parent prior shall have received a Superior Proposal, (y) the Company shall have provided the Acquiror with written notice of its intent to make any Company Adverse Recommendation Change or terminate this Agreement pursuant to Section 7.1(d)(ii) at least four (4) Business Days prior to taking such action to advising the effect that, absent any modification to the terms and conditions of this Agreement, Acquiror that the Company Board has resolved to effect received such a Company Adverse Recommendation Change or to terminate this Agreement pursuant to Section 7.1(d)(ii), which notice shall specify the basis for such Company Adverse Recommendation Change or termination and attaching the most current draft of any Company Acquisition Agreement with respect to, the Superior Proposal (orwhich it intends to accept, if no such draft exists, a summary of specifying the material terms and conditions of such Superior Proposal), if applicable Proposal and (a “Notice z) at least five Business Days shall have passed following the Acquiror’s receipt of Recommendation Change”) (it being understood that such Notice of Recommendation Change notice and the Acquiror shall not in itself be deemed have made a Company Adverse Recommendation Change and that any change in price or material revision or amendment binding written offer to the terms of a Superior Proposal, if applicable, shall require a new notice to which the provisions of clauses (ii)(A), (B) and (C) of this Section 5.3(d) shall apply mutatis mutandis except that, in the case of such a new notice, all references to four (4) Business Days in this Section 5.3(d) shall be deemed to be two (2) Business Days); (B) during such four (4) Business Day period, if requested by Parent, the Company shall make its Representatives available to negotiate in good faith with Parent and its Representatives regarding any modifications to the terms and conditions of this Agreement that Parent proposes to make; and (C) at the end of such four (4) Business Day period and taking into account any modifications to the terms of this Agreement proposed by Parent, if any, in a written, binding and irrevocable offer, the Company Board determines shall have concluded in its good faith (judgment, after consultation with outside legal counsel) that the failure its financial advisors, causes such Superior Proposal to make such a Company Adverse Recommendation Change would reasonably no longer be expected to be inconsistent with its fiduciary duties under applicable Law, and that, in the case of a Company Adverse Recommendation Change with respect to a Takeover Proposal, such Takeover Proposal still constitutes a Superior Proposal.
(e) Nothing contained in this Section 5.2 or elsewhere in this Agreement shall prohibit the Company or the Company Board (or a duly authorized committee thereof) from (iA) taking and disclosing to the shareholders of the Company Shareholders a position contemplated with respect to a tender or exchange offer by Rule 14e-2(a) under the Exchange Act a Third Party pursuant to Rules 14d-9 and 14e-2 or making a statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9 promulgated under the Exchange Act, Act or (iiB) making any such disclosure to the shareholders Company Shareholders, the failure of which, in the good faith judgment of the Company if the Company Board (or a duly authorized committee thereof) determines in good faithBoard, after consultation with its outside legal counsel, that the failure to make such disclosure would result in a breach of or be reasonably likely to be inconsistent with applicable Law, (iii) informing any Person of the existence of the provisions contained result in this Section 5.3 or (iv) making any “stop, look and listen” communication to the shareholders of the Company pursuant to Rule 14d-9(f) under the Exchange Act.
(f) As used in this Agreement, “Takeover Proposal” shall mean any inquiry, proposal or offer (whether or not in writing) from any Person (other than Parent, Merger Sub and any a breach of its Affiliates thereof) to purchase or otherwise acquire, directly or indirectly, in a single transaction or series of related transactions, (a) assets of the Company and its Subsidiaries (including securities of Subsidiaries) that account for 15% or more of the Company’s consolidated assets or from which 15% or more of the Company’s revenues or earnings on a consolidated basis are derived or (b) 15% or more of the outstanding Company Common Stock pursuant to a merger, consolidation or other business combination, sale or issuance of shares of capital stock, tender offer, share exchange, other business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company, in each case other than the Mergerfiduciary duties under applicable law.
Appears in 1 contract
Samples: Merger Agreement (Mathstar Inc)
No Solicitation; Change in Recommendation. (a) The Company agrees that it shall, and shall cause each of its Subsidiaries and its and its Subsidiaries’ directors, officers and employees to, and shall use its reasonable best efforts to cause its other their Representatives to, (i) immediately cease all existing any solicitation, encouragement, discussions or negotiations with any Person conducted heretofore persons with respect to any a Takeover Proposal, immediately request the prompt return Proposal that existed on or destruction of all confidential information previously furnished and immediately terminate all physical and electronic data room access previously granted prior to any such Person or its Representatives. Except as otherwise provided in this Agreement, from the date of this Agreement and (ii) from the date hereof until the earlier of the Effective Time or the dateTime, if any, on which this Agreement is terminated pursuant to Section 7.1, the Company shall not, and shall cause its Subsidiaries and its and its Subsidiaries’ directors, officers and employees not to, and shall use its reasonable best efforts to cause its other Representatives not to, directly or indirectly, (iA) solicit, initiate, knowingly encourage solicit or knowingly facilitate or encourage the making of any Takeover Proposal or the making or consummation thereof or (iiB) enter intoengage in, continue or otherwise participate in any discussions (except to notify such Person of the existence of the provisions of this Section 5.3) or negotiations regarding, or furnish to any Person other person any non-public information in connection with, any with a Takeover Proposal.
(b) Notwithstanding anything contained in Section 5.02(a) or any other provision of this Agreement to the contrary contained in this Agreementcontrary, if at any time after the date hereof and prior to obtaining the Company Stockholder Approval, the Company or any of its Subsidiaries, or any of its or their respective Representatives receives an unsolicited bona fide a written Takeover Proposal, which Takeover Proposal made after the date did not result from any breach of this AgreementSection 5.02, the Company, the Company Board (or a duly authorized committee thereofi) and the Company’s Representatives may engage in negotiations and discussions with, or furnish any information and other access to, any Person making such Takeover Proposal and any of its Representatives or potential sources of financing if the Company Board determines in good faith, after consultation with the Company’s outside legal and financial advisors, that such Takeover Proposal is or could reasonably be expected to lead to a Superior Proposal; provided that prior to engaging in any negotiations or discussions with, or furnishing any information to, any such Person or its Representatives, the Company and its Representatives may contact such person or group of persons making the Person making such Takeover Proposal shall have entered into an Acceptable Confidentiality Agreement. The Company will promptly (and in any event within solely to clarify the later of twenty-four (24) hours or 5:00 p.m. New York City time on the next Business Day) notify Parent in writing of the receipt of such Takeover Proposal, the material terms and conditions thereof and (ii) if the Board of any such Takeover Proposal and the identity Directors of the Person making such Takeover Proposal. The Company will keep Parent informed in all material respects on a prompt basis (and in any event within the later of twenty-four (24) hours or 5:00 p.m. New York City time on the next Business Day) of the material terms and status of such Takeover Proposal (including any change in the price or any other material terms thereof). The Company shall not terminate, amend, modify, waive or fail to enforce any provision of any “standstill” or similar obligation of any Person unless the Company Board (or a duly authorized committee thereof) thereof determines in good faith, after consultation with its financial advisors and outside legal counsel, that such Takeover Proposal constitutes or would reasonably be expected to lead to a Superior Proposal and the failure to take such action the following actions would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law.
(c) Except as otherwise provided in this Agreement, neither the Company Board nor any committee thereof shall (i)(A) withdraw, change, qualify, withhold or modify, or publicly propose to withdraw, change, qualify, withhold or modify, in a manner adverse to Parent, the Company Board Recommendation, (B) adopt, approve or recommend, or publicly propose to adopt, approve or recommend, any Takeover Proposal, (C) fail to include in the Proxy Statement the Company Board Recommendation, (D) fail to recommend against any Takeover Proposal subject to Regulation 14D under the Exchange Act in any solicitation or recommendation statement made on Schedule 14D-9 within ten (10) Business Days after Parent so requests reaffirmation in writing (provided, that Parent shall be entitled to make such a written request for reaffirmation only once for each Takeover Proposal and once for each material amendment to such Takeover Proposal), or (E) resolve or publicly propose to do any of the foregoing (any action described in this clause (i) being referred to herein as a “Company Adverse Recommendation Change”) or (ii) cause or permit the Company or any of its Affiliates to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, agreement or commitment (other than an Acceptable Confidentiality Agreement) constituting, or that would reasonably be expected to lead to, any Takeover Proposal (a “Company Acquisition Agreement”).
(d) Notwithstanding anything to the contrary in this Agreement, at any time prior to obtaining the Company Shareholder Approval, the Company Board (or a duly authorized committee thereof) may make a Company Adverse Recommendation Change (and, solely with respect to a Superior Proposal, terminate this Agreement pursuant to Section 7.1(d)(ii)), if (i) (A) a Company Intervening Event has occurred or (B) the Company has received a Superior Proposal other than as a result of a breach of this Section 5.3 (other than immaterial breach), in each case, if the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure to make a Company Adverse Recommendation Change as a result of the occurrence of such Company Intervening Event or in response to the receipt of such Superior Proposal, as the case may be, would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law and (ii) (A) the Company provides Parent prior written notice of its intent to make any Company Adverse Recommendation Change or terminate this Agreement pursuant to Section 7.1(d)(ii) at least four (4) Business Days prior to taking such action to the effect that, absent any modification to the terms and conditions of this Agreement, the Company Board has resolved to effect a Company Adverse Recommendation Change or to terminate this Agreement pursuant to Section 7.1(d)(ii), which notice shall specify the basis for such Company Adverse Recommendation Change or termination and attaching the most current draft of any Company Acquisition Agreement with respect to, the Superior Proposal (or, if no such draft exists, a summary of the material terms and conditions of such Superior Proposal), if applicable (a “Notice of Recommendation Change”) (it being understood that such Notice of Recommendation Change shall not in itself be deemed a Company Adverse Recommendation Change and that any change in price or material revision or amendment to the terms of a Superior Proposal, if applicable, shall require a new notice to which the provisions of clauses (ii)(A), (B) and (C) of this Section 5.3(d) shall apply mutatis mutandis except that, in the case of such a new notice, all references to four (4) Business Days in this Section 5.3(d) shall be deemed to be two (2) Business Days); (B) during such four (4) Business Day period, if requested by Parent, the Company shall make its Representatives available to negotiate in good faith with Parent and its Representatives regarding any modifications to the terms and conditions of this Agreement that Parent proposes to make; and (C) at the end of such four (4) Business Day period and taking into account any modifications to the terms of this Agreement proposed by Parent, if any, in a written, binding and irrevocable offer, the Company Board determines in good faith (after consultation with outside legal counsel) that the failure to make such a Company Adverse Recommendation Change would reasonably be expected to be inconsistent with its directors’ fiduciary duties under applicable Law, and that, in the case of a Company Adverse Recommendation Change with respect to a Takeover Proposal, such Takeover Proposal still constitutes a Superior Proposal.
(e) Nothing contained in this Agreement shall prohibit the Company or the Company Board (or a duly authorized committee thereof) from (i) taking and disclosing to the shareholders of the Company a position contemplated by Rule 14e-2(a) under the Exchange Act or making a statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9 under the Exchange Act, (ii) making any disclosure to the shareholders of the Company if the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure to make such disclosure would be reasonably likely to be inconsistent with applicable Law, (iii) informing any Person of the existence of the provisions contained in this Section 5.3 or (iv) making any “stop, look and listen” communication to the shareholders of the Company pursuant to Rule 14d-9(f) under the Exchange Act.
(f) As used in this Agreement, “Takeover Proposal” shall mean any inquiry, proposal or offer (whether or not in writing) from any Person (other than Parent, Merger Sub and any of its Affiliates thereof) to purchase or otherwise acquire, directly or indirectly, in a single transaction or series of related transactions, (a) assets of then the Company and its Subsidiaries Representatives may (including securities of Subsidiariesx) that account for 15% or more of the Company’s consolidated assets or from which 15% or more of the Company’s revenues or earnings on a consolidated basis are derived or (b) 15% or more of the outstanding Company Common Stock pursuant to a merger, consolidation or other business combination, sale or issuance of shares of capital stock, tender offer, share exchange, other business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company, in each case other than the Merger.enter into an
Appears in 1 contract
No Solicitation; Change in Recommendation. (a) The Company agrees that it shall, and shall cause its Subsidiaries and its and its Subsidiaries’ directors, officers and employees to, and shall use its reasonable best efforts to cause its other Representatives to, immediately cease all existing discussions or negotiations with any Person conducted heretofore with respect to any Takeover Proposal, immediately request the prompt return or destruction of all confidential information previously furnished and immediately terminate all physical and electronic data room access previously granted to any such Person or its Representatives. Except as otherwise provided in permitted by this AgreementSection 6.3, from the date of this Agreement until the earlier of the Effective Time or the dateor, if anyearlier, on which the termination of this Agreement is terminated pursuant to Section 7.1in accordance with Article VIII, the Company shall not, and shall cause each of its Subsidiaries and its and its Subsidiaries’ directors, officers and employees not to, and shall use direct each of its reasonable best efforts to cause its other Representatives not to, directly or indirectly, (i) solicit, initiate, knowingly encourage initiate or knowingly facilitate or encourage (including by way of furnishing non-public information or affording access to the business, properties, assets, books or records of the Company or any Takeover Proposal of its Subsidiaries) any inquiries regarding, or the making of any proposal or consummation thereof offer that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (ii) enter intoengage in, continue or otherwise participate in any discussions or negotiations regarding an Acquisition Proposal, or (except iii) enter into any Contract or agreement in principle with respect to notify such Person an Acquisition Proposal; provided that, it is understood and agreed that any determination or action by the Company Board permitted under Section 6.3(b), Section 6.3(c), Section 6.3(d) or Section 8.1(d)(iii), shall not, in and of the existence of the provisions itself, be deemed to be a breach or violation of this Section 5.36.3(a) or, in the case of Section 6.3(b), give Parent a right to terminate this Agreement pursuant to Section 8.1(c)(ii). The Company shall, and shall cause its Subsidiaries and direct each of their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations regardingwith any Persons conducted prior to the execution of this Agreement by the Company, any of its Subsidiaries or furnish its or any of their Representatives with respect to any Person any information in connection with, any Takeover Acquisition Proposal.
(b) Notwithstanding anything to the contrary contained in this AgreementSection 6.3(a), if the Company at any time on or any of its Subsidiaries, or any of its or their respective Representatives receives an unsolicited bona fide written Takeover Proposal made after the date of this Agreement, Agreement and until the CompanyPurchase Time, the Company Board (or its Representatives receives a duly authorized bona fide, unsolicited written Acquisition Proposal from any Person or group of Persons, which Acquisition Proposal was made on or after the date of this Agreement and which did not arise or result from any breach of this Section 6.3, if the Company Board, or any committee thereof) and , determines in good faith, after consultation with the Company’s Representatives may engage in negotiations independent financial advisors and discussions withoutside legal counsel, that such Acquisition Proposal constitutes, or furnish any information and other access is reasonably likely to lead to, any Person making such Takeover a Superior Proposal and any of its Representatives or potential sources of financing if the Company Board Board, or any committee thereof, determines in good faith, after consultation with the Company’s outside legal and financial advisors, that such Takeover Proposal is or could reasonably be expected to lead to a Superior Proposal; provided that prior to engaging in any negotiations or discussions with, or furnishing any information to, any such Person or its Representatives, the Company and the Person making such Takeover Proposal shall have entered into an Acceptable Confidentiality Agreement. The Company will promptly (and in any event within the later of twenty-four (24) hours or 5:00 p.m. New York City time on the next Business Day) notify Parent in writing of the receipt of such Takeover Proposal, the material terms and conditions of any such Takeover Proposal and the identity of the Person making such Takeover Proposal. The Company will keep Parent informed in all material respects on a prompt basis (and in any event within the later of twenty-four (24) hours or 5:00 p.m. New York City time on the next Business Day) of the material terms and status of such Takeover Proposal (including any change in the price or any other material terms thereof). The Company shall not terminate, amend, modify, waive or fail to enforce any provision of any “standstill” or similar obligation of any Person unless the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law.
(c) Except as otherwise provided in this Agreement, neither the Company Board nor any committee thereof shall (i)(A) withdraw, change, qualify, withhold or modify, or publicly propose to withdraw, change, qualify, withhold or modify, in a manner adverse to Parent, the Company Board Recommendation, (B) adopt, approve or recommend, or publicly propose to adopt, approve or recommend, any Takeover Proposal, (C) fail to include in the Proxy Statement the Company Board Recommendation, (D) fail to recommend against any Takeover Proposal subject to Regulation 14D under the Exchange Act in any solicitation or recommendation statement made on Schedule 14D-9 within ten (10) Business Days after Parent so requests reaffirmation in writing (provided, that Parent shall be entitled to make such a written request for reaffirmation only once for each Takeover Proposal and once for each material amendment to such Takeover Proposal), or (E) resolve or publicly propose to do any of the foregoing (any action described in this clause (i) being referred to herein as a “Company Adverse Recommendation Change”) or (ii) cause or permit the Company or any of its Affiliates to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, agreement or commitment (other than an Acceptable Confidentiality Agreement) constituting, or that would reasonably be expected to lead to, any Takeover Proposal (a “Company Acquisition Agreement”).
(d) Notwithstanding anything to the contrary in this Agreement, at any time prior to obtaining the Company Shareholder Approval, the Company Board (or a duly authorized committee thereof) may make a Company Adverse Recommendation Change (and, solely with respect to a Superior Proposal, terminate this Agreement pursuant to Section 7.1(d)(ii)), if (i) (A) a Company Intervening Event has occurred or (B) the Company has received a Superior Proposal other than as a result of a breach of this Section 5.3 (other than immaterial breach), in each case, if the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure to make a Company Adverse Recommendation Change as a result of the occurrence of such Company Intervening Event or in response to the receipt of such Superior Proposal, as the case may be, would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law and (ii) (A) the Company provides Parent prior written notice of its intent to make any Company Adverse Recommendation Change or terminate this Agreement pursuant to Section 7.1(d)(ii) at least four (4) Business Days prior to taking such action to the effect that, absent any modification to the terms and conditions of this Agreement, the Company Board has resolved to effect a Company Adverse Recommendation Change or to terminate this Agreement pursuant to Section 7.1(d)(ii), which notice shall specify the basis for such Company Adverse Recommendation Change or termination and attaching the most current draft of any Company Acquisition Agreement with respect to, the Superior Proposal (or, if no such draft exists, a summary of the material terms and conditions of such Superior Proposal), if applicable (a “Notice of Recommendation Change”) (it being understood that such Notice of Recommendation Change shall not in itself be deemed a Company Adverse Recommendation Change and that any change in price or material revision or amendment to the terms of a Superior Proposal, if applicable, shall require a new notice to which the provisions of clauses (ii)(A), (B) and (C) of this Section 5.3(d) shall apply mutatis mutandis except that, in the case of such a new notice, all references to four (4) Business Days in this Section 5.3(d) shall be deemed to be two (2) Business Days); (B) during such four (4) Business Day period, if requested by Parent, the Company shall make its Representatives available to negotiate in good faith with Parent and its Representatives regarding any modifications to the terms and conditions of this Agreement that Parent proposes to make; and (C) at the end of such four (4) Business Day period and taking into account any modifications to the terms of this Agreement proposed by Parent, if any, in a written, binding and irrevocable offer, the Company Board determines in good faith (after consultation with outside legal counsel) that the failure to make such a Company Adverse Recommendation Change would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, then the Company and thatits Representatives may (A) furnish, in the case of a Company Adverse Recommendation Change pursuant to an Acceptable Confidentiality Agreement, information (including non-public information) with respect to a Takeover Proposal, such Takeover Proposal still constitutes a Superior Proposal.
(e) Nothing contained in this Agreement shall prohibit the Company or the Company Board (or a duly authorized committee thereof) from (i) taking and disclosing to the shareholders of the Company a position contemplated by Rule 14e-2(a) under the Exchange Act or making a statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9 under the Exchange Act, (ii) making any disclosure to the shareholders of the Company if the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure to make such disclosure would be reasonably likely to be inconsistent with applicable Law, (iii) informing any Person of the existence of the provisions contained in this Section 5.3 or (iv) making any “stop, look and listen” communication to the shareholders of the Company pursuant to Rule 14d-9(f) under the Exchange Act.
(f) As used in this Agreement, “Takeover Proposal” shall mean any inquiry, proposal or offer (whether or not in writing) from any Person (other than Parent, Merger Sub and any of its Affiliates thereof) to purchase or otherwise acquire, directly or indirectly, in a single transaction or series of related transactions, (a) assets of the Company and its Subsidiaries to the Person or group of Persons who has made such Acquisition Proposal; provided, that the Company shall promptly provide to Parent any material non-public information concerning the Company or its Subsidiaries that is provided to any Person given such access which was not previously provided to Parent or its Representatives; and (including securities B) engage in or otherwise participate in discussions and/or negotiations with the Person or group of SubsidiariesPersons making such Acquisition Proposal. Notwithstanding anything to the contrary contained in Section 6.3(a), the Company shall be permitted to grant a waiver or release to any Person or group of Persons subject to an Acceptable Confidentiality Agreement for the sole purpose of allowing such Person or Group of Persons to submit an Acquisition Proposal that the Company Board, or any committee thereof, determines in good faith is reasonably likely to lead to a Superior Proposal if the Company Board determines that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law. For the purposes of this Agreement, “Acceptable Confidentiality Agreement” means (i) any pre-existing confidentiality agreement between the Company and any such Person and (ii) any confidentiality agreement entered into after the date of this Agreement that account contains provisions that are no less favorable in the aggregate to the Company than those contained in the Confidentiality Agreement, provided that any such agreement under (i) or (ii) shall permit the Company to comply with the terms of this Section, and provided further that a copy of any such agreement shall be promptly (and in any event within 24 hours of execution) provided for 15% or more informational purposes to Parent. The Company shall notify Parent promptly (but in no event later than 24 hours) after it obtains knowledge of the Company’s consolidated assets receipt by the Company or from which 15% any of its Subsidiaries or more Representatives) of any Acquisition Proposal, or any request for non-public information relating to the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of the Company’s revenues Company or earnings any of its Subsidiaries by any Person that is seeking to make or has made after the date hereof an Acquisition Proposal. The Company shall provide such notice in writing and shall identify the Person making, and the terms and conditions of, any such Acquisition Proposal or request. The Company shall keep Parent informed, on a consolidated prompt basis are derived or (b) 15% or more but in any event within 24 hours), of the outstanding status and material terms of any such Acquisition Proposal, including any material amendments or proposed amendments as to price and other material terms thereof. The Company Common Stock pursuant agrees that it and its Subsidiaries will not enter into any confidentiality agreement with any Person subsequent to a merger, consolidation or other business combination, sale or issuance of shares of capital stock, tender offer, share exchange, other business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company, in each case other than date hereof which prohibits the MergerCompany from providing such information to Parent.
Appears in 1 contract
No Solicitation; Change in Recommendation. (a) The Company agrees that it shall, and shall cause its Subsidiaries and its and its Subsidiaries’ Subsidiaries respective directors, officers and employees to, and shall use its reasonable best efforts to cause its other Representatives to, immediately cease all existing discussions or negotiations with any Person conducted heretofore with respect to any Takeover Proposal, immediately request the prompt return or destruction of all confidential information previously furnished and immediately terminate all physical and electronic data room access previously granted to any such Person or its Representatives. Except as otherwise provided in this Agreement, from the date of this Agreement until the earlier of the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 7.1, the Company shall not, and shall cause its Subsidiaries and its and its Subsidiaries’ Subsidiaries respective directors, officers and employees not to, and shall use its reasonable best efforts to cause its other Representatives not to, directly or indirectly, (i) solicit, initiate, knowingly encourage or knowingly facilitate any Takeover Proposal or the making or consummation thereof or (ii) enter into, or otherwise participate in any discussions (except to notify such Person of the existence of the provisions of this Section 5.3) or negotiations regarding, or furnish to any Person any material non-public information in connection with, any Takeover Proposal.
(b) Notwithstanding anything to the contrary contained in this Agreement, if the Company or any of its Subsidiaries, or any of its or their respective Representatives Representatives, receives an unsolicited bona fide written Takeover Proposal made after the date of this AgreementAgreement and prior to the receipt of the Company Shareholder Approval, the Company, the Company Board (or a duly authorized committee thereof) and the Company’s Representatives may engage in negotiations and discussions with, or furnish any information and other access to, any Person making such Takeover Proposal and any of its Representatives or potential sources of financing if the Company Board determines in good faith, after consultation with the Company’s outside legal and financial advisors, that such Takeover Proposal is or could reasonably be expected to lead to a Superior ProposalProposal and that failure to take such actions would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law; provided that prior to engaging in any negotiations or discussions with, or furnishing any material non-public information to, any such Person or its Representatives, the Company and the Person making such Takeover Proposal shall have entered into an Acceptable Confidentiality Agreement. The Company will promptly (and in any event within the later of twenty-four (24) hours or and 5:00 p.m. New York City Pacific time on the next Business Day) notify Parent in writing of the receipt of such Takeover Proposal, Proposal and the material terms and conditions of any such Takeover Proposal and Proposal, including the identity of the Person making such Takeover Proposal. The Company will keep Parent promptly informed in all material respects on a prompt basis (and in any event within the later of twenty-four (24) hours or and 5:00 p.m. New York City Pacific time on the next Business Day) of the material terms and status of communications relating to such Takeover Proposal (including any change in the price or any other material terms thereof). The Company shall not terminate, amend, modify, waive or fail to enforce any provision of any “standstill” or similar obligation of any Person unless the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law.
(c) Except as otherwise provided in this Agreement, neither the Company Board nor any committee thereof shall (i)(A) withdraw, change, qualify, withhold or modifymodify in a manner adverse to Parent, or publicly propose to withdraw, change, qualify, withhold or modify, modify in a manner adverse to Parent, the Company Board Recommendation, (B) adopt, approve or recommend, or publicly propose to adopt, approve or recommend, any Takeover Proposal, (C) fail to include the Company Board Recommendation in the Proxy Statement the Company Board Recommendation, or (D) fail to recommend against any in the event a tender offer that constitutes a Takeover Proposal subject to Regulation 14D under the Exchange Act is commenced, fail to recommend against such Takeover Proposal in any solicitation or recommendation statement made on Schedule 14D-9 within ten (10) Business Days after Parent so requests reaffirmation in writing (provided, provided that Parent shall be entitled to make such a written request for reaffirmation only once for each Takeover Proposal and once for each material amendment to such Takeover Proposal), or (E) resolve or publicly propose to do any of the foregoing (any action described in this clause (i) being referred to herein as a “Company Adverse Recommendation Change”) or (ii) cause or permit the Company or any of its Affiliates to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, agreement or commitment (other than an Acceptable Confidentiality Agreement) constituting, or that would reasonably be expected to lead to, any to a Takeover Proposal (a “Company Acquisition Agreement”).
(d) Notwithstanding anything to the contrary in this Agreement, :
(i) at any time prior to obtaining the Company Shareholder Approval, the Company Board (or a duly authorized committee thereof) may make a Company Adverse Recommendation Change (and, solely with respect to a Superior Proposal, terminate this Agreement pursuant to Section 7.1(d)(ii)), if (i) (A) a Company Intervening Event has occurred or (B) the Company has received a Superior Proposal other than as a result of a breach of this Section 5.3 (other than an immaterial breach), in each casethe Company Board (or a duly authorized committee thereof) may make a Company Adverse Recommendation Change and, solely with respect to a Superior Proposal, terminate this Agreement pursuant to Section 7.1(d)(ii), if (A) the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure to make a Company Adverse Recommendation Change as a result of the occurrence of such Company Intervening Event or in response to the receipt of such Superior Proposal, as the case may be, Proposal would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law and (iiB) (A1) the Company provides Parent prior written notice of its intent to make any a Company Adverse Recommendation Change or and terminate this Agreement pursuant to Section 7.1(d)(ii) at least four (4) Business Days prior to taking such action to the effect that, absent any modification to the terms and conditions of this Agreement, the Company Board has resolved to effect a Company Adverse Recommendation Change or and to terminate this Agreement pursuant to Section 7.1(d)(ii), which notice shall specify the basis for such Company Adverse Recommendation Change or termination and attaching attach the most current draft of any Company Acquisition Agreement with respect to, to the Superior Proposal (or, if no such draft exists, a written summary of the material terms and conditions of such Superior Proposal), if applicable ) (a “Notice of Superior Proposal Recommendation Change”) (it being understood that such Notice of Superior Proposal Recommendation Change shall not in itself be deemed a Company Adverse Recommendation Change and that any change in price or material revision or amendment to the terms of a such Superior Proposal, if applicable, Proposal shall require a new notice to which the provisions of clauses (ii)(AB)(1), (B2) and (C3) of this Section 5.3(d5.3(d)(i) shall apply mutatis mutandis except that, in the case of such a new notice, all references to four (4) Business Days in this Section 5.3(d5.3(d)(i) shall be deemed to be two three (23) Business Days); (B2) during such four (4) Business Day periodperiod following Parent’s receipt of the Notice of Superior Proposal Recommendation Change, if requested by Parent, the Company shall make its Representatives reasonably available to negotiate in good faith with Parent and its Representatives regarding any modifications to the terms and conditions of this Agreement that Parent proposes to make; and (C3) at the end of such four (4) Business Day period and taking into account any modifications to the terms of this Agreement proposed by Parent to the Company in a written, binding and irrevocable offer, the Company Board determines in good faith (after consultation with outside legal counsel) that the failure to make such a Company Adverse Recommendation Change would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law and that such Takeover Proposal still constitutes a Superior Proposal; and
(ii) at any time prior to obtaining the Company Shareholder Approval, the Company Board (or a duly authorized committee thereof) may make a Company Adverse Recommendation Change in response to the occurrence of a Company Intervening Event if (A) the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure to make a Company Adverse Recommendation Change as a result of the occurrence of such Company Intervening Event would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law and (B) (1) the Company provides Parent prior written notice of its intent to make a Company Adverse Recommendation Change at least four (4) Business Days prior to taking such action to the effect that, absent any modification to the terms and conditions of this Agreement, the Company Board has resolved to effect a Company Adverse Recommendation Change, which notice shall describe in reasonable detail the Company Intervening Event that is the basis for such Company Adverse Recommendation Change (a “Notice of Intervening Event Recommendation Change”) (it being understood that such Notice of Intervening Event Recommendation Change shall not in itself be deemed a Company Adverse Recommendation Change); (2) during such four (4) Business Day period following Parent’s receipt of the Notice of Intervening Event Recommendation Change, if requested by Parent, if any, the Company shall make its Representatives reasonably available to negotiate in good faith with Parent and its Representatives regarding any modifications to the terms and conditions of this Agreement that Parent proposes to make; and (3) at the end of such four (4) Business Day period and taking into account any modifications to the terms of this Agreement proposed by Parent to the Company in a written, binding and irrevocable offer, the Company Board determines in good faith (after consultation with outside legal counsel) that the failure to make such a Company Adverse Recommendation Change would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, and that, in the case of a Company Adverse Recommendation Change with respect to a Takeover Proposal, such Takeover Proposal still constitutes a Superior Proposal.
(e) Nothing contained in this Agreement shall prohibit the Company or the Company Board (or a duly authorized committee thereof) from (i) taking and disclosing to the shareholders of the Company a position contemplated by Rule 14e-2(a) under the Exchange Act or making a statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9 under the Exchange Act, (ii) making any disclosure to the shareholders of the Company if the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure to make such disclosure would be reasonably likely to be inconsistent with applicable Law, (iii) informing any Person of the existence of the provisions contained in this Section 5.3 or (iv) making any “stop, look and listen” communication to the shareholders of the Company pursuant to Rule 14d-9(f) under the Exchange ActAct (or any similar communication to the shareholders of the Company). No disclosures under this Section 5.3(e) shall be, in themselves, a breach of Section 5.3 or a basis for Parent to terminate this Agreement pursuant to Article VII.
(f) As used in this Agreement, “Takeover Proposal” shall mean any bona fide inquiry, proposal or offer (whether or not in writing) from any Person (other than Parent, US Parent, Merger Sub and or any of its Affiliates thereoftheir respective Affiliates) to purchase or otherwise acquire, directly or indirectly, in a single transaction or series of related transactions, (ai) assets of the Company and its Subsidiaries (including securities of Subsidiaries) that account for 15% or more of the Company’s consolidated assets or from which 15% or more of the Company’s revenues or earnings on a consolidated basis are derived or (bii) 15% or more of the outstanding Company Common Stock pursuant to a merger, consolidation or other business combination, sale or issuance of shares of capital stock, tender offer, share exchange, other business combination, recapitalization, liquidation, dissolution recapitalization or similar transaction involving the Company, in each case other than the Merger.;
Appears in 1 contract
Samples: Merger Agreement (Avista Corp)
No Solicitation; Change in Recommendation. (a) The Subject to the terms of this Section 5.02, the Company agrees that it shall, shall and shall cause each of its Subsidiaries and its and its Subsidiaries’ directors, their officers and employees directors to, and shall instruct and use its reasonable best efforts to cause its other Representatives to, immediately (i) from the time this Agreement is executed until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article VII, (A) cease all existing any solicitation, discussions or negotiations with any Person conducted heretofore Persons that may be ongoing with respect to a Takeover Proposal and promptly (and in any Takeover Proposalevent, immediately within 48 hours) request the prompt return or destruction of all confidential information previously furnished and immediately terminate all physical and electronic data room access previously granted by the Company or on its behalf to any such Person and its Representatives with respect to a Takeover Proposal on or its Representatives. Except as prior to the time this Agreement is executed and (B) not, directly or indirectly, (1) initiate, solicit, knowingly facilitate or knowingly encourage the submission of any inquiries regarding, or the making of any proposal or offer that constitutes, or could reasonably be expected to lead to, a Takeover Proposal or (2) engage in, continue or otherwise provided participate in any discussions or negotiations regarding (except to notify any Person of the provisions of this AgreementSection 5.02), or furnish to any other Person any non-public information in connection with, or for the purpose of, encouraging a Takeover Proposal and (ii) from the date of this Agreement until the earlier of the Effective Time or the dateor, if anyearlier, on which the termination of this Agreement is terminated pursuant to Section 7.1in accordance with Article VII, the Company shall notenter into any letter of intent, and shall cause its Subsidiaries and its and its Subsidiaries’ directorsmemorandum of understanding, officers and employees not toagreement in principle, and shall use its reasonable best efforts to cause its merger agreement, acquisition agreement or other Representatives not to, directly or indirectly, (i) solicit, initiate, knowingly encourage or knowingly facilitate any Takeover Proposal or the making or consummation thereof or (ii) enter into, or otherwise participate in any discussions (except to notify such Person of the existence of the provisions of this Section 5.3) or negotiations regarding, or furnish to any Person any information in connection with, any similar agreement providing for a Takeover Proposal.
(b) Notwithstanding anything contained in Section 5.02(a) or any other provision of this Agreement to the contrary contained in this Agreementcontrary, if at any time after the time this Agreement is executed and prior to obtaining the Company Stockholder Approval, but not after, the Company or any of its SubsidiariesRepresentatives receives a Takeover Proposal, which Takeover Proposal did not result from a knowing and material breach of Section 5.02(a), (i) the Company and its Representatives may contact and engage in discussions with such Person or any group of Persons making the Takeover Proposal or its or their respective Representatives receives an unsolicited bona fide written and financing sources to clarify the terms and conditions thereof or to request that any Takeover Proposal made after orally be made in writing or to notify such Person or group of Persons or its or their Representatives and financing sources of the date provisions of this Agreement, Section 5.02 and (ii) if the Company, Board of Directors of the Company Board (or a duly authorized any committee thereof) and the Company’s Representatives may engage in negotiations and discussions with, or furnish any information and other access to, any Person making such Takeover Proposal and any of its Representatives or potential sources of financing if the Company Board thereof determines in good faith, after consultation with the Company’s its financial advisors and outside legal and financial advisorscounsel, that such Takeover Proposal constitutes or could reasonably be expected to result in, a Superior Proposal, then the Company and any of its Representatives may (A) enter into an Acceptable Confidentiality Agreement with the Person or group of Persons making the Takeover Proposal and furnish pursuant to an Acceptable Confidentiality Agreement information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group of Persons who has made such Takeover Proposal and its or their respective Representatives and financing sources; provided that the Company shall substantially concurrently (and in any event within 48 hours of furnishing such Person or group of Persons making the Takeover Proposal with such information) provide to Parent any non-public information concerning the Company or any of its Subsidiaries that is provided to any Person given such access that was not previously provided to Parent or its Representatives and (B) engage in or otherwise participate in discussions or negotiations with the Person or group of Persons making such Takeover Proposal and its or their Representatives and financing sources, in each case, only for so long as such Takeover Proposal constitutes a Superior Proposal or could reasonably be expected to lead to a Superior Proposal; provided that prior to engaging in any negotiations or discussions with, or furnishing any information to, any such Person or its Representatives, the Company and the Person making such Takeover Proposal shall have entered into an Acceptable Confidentiality Agreement. .
(c) The Company will shall promptly (and in any event within 48 hours after receipt by an executive officer of the later Company or after any member of twenty-four (24) hours the Board of Directors of the Company or 5:00 p.m. New York City time on any executive officer of the next Business DayCompany obtains actual knowledge of a Takeover Proposal) notify Parent in writing the event that the Company or any of the receipt of such its Subsidiaries or its or their Representatives receives a Takeover Proposal, or an inquiry that could reasonably be expected to lead to a Takeover Proposal, and shall disclose to Parent the material terms and conditions of any such Takeover Proposal and the identity of the Person or group of Persons making such Takeover Proposal and copies of any material documents evidencing or delivered in connection with such Takeover Proposal. The , and the Company will shall keep Parent reasonably informed in all promptly of any material respects on a prompt basis (and in developments with respect to any event within the later of twenty-four (24) hours or 5:00 p.m. New York City time on the next Business Day) of the material terms and status of such Takeover Proposal (including any change material changes thereto and including by providing copies of any revised or new material documents evidencing or delivered in connection with such Takeover Proposal). For the avoidance of doubt, all information provided to Parent pursuant to this Section 5.02(c) shall be subject to the terms of the Confidentiality Agreement.
(d) Neither the Board of Directors of the Company nor any committee thereof shall (i) (A) withhold (in the price case of the Board of Directors of the Company) or withdraw (or modify in a manner adverse to Parent), or publicly propose to withhold (in the case of the Board of Directors of the Company) or withdraw (or modify in a manner adverse to Parent), the Company Board Recommendation, (B) in the case of the Board of Directors of the Company, if any 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, (C) fail to reaffirm the Company Board Recommendation within ten days of a written request made by Parent to do so (it being understood that Parent may only make such a request on two occasions) or (D) recommend the approval or adoption of, or approve or adopt, or publicly propose to recommend, approve or adopt, any Takeover Proposal (it being understood that the Board of Directors of the Company or any committee thereof may, and may cause the Company to, (x) make a customary “stop, look and listen” communication, (y) elect to take no position with respect to a Takeover Proposal until the close of business on the tenth Business Day after the commencement of such Takeover Proposal pursuant to Rule 14e-2 under the Exchange Act and (z) subject to Section 5.02(c), disclose that the Company has received a Takeover Proposal, that the Board of Directors of the Company or any committee thereof has determined that a Takeover Proposal constitutes a Superior Proposal, that the Board of Directors of the Company or any committee thereof intends to make an Adverse Recommendation Change or that the Company intends to terminate this Agreement to enter into a Company Acquisition Agreement and in each case any material facts and circumstances relating thereto) (any action described in this clause (i), other than the actions in the foregoing clauses (x) – (z), being referred to as an “Adverse Recommendation Change”) or (ii) subject to Section 5.02(e), authorize, execute or enter into (or cause or permit the Company or any of its Subsidiaries to execute or enter into) any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement or other similar agreement providing for a Takeover Proposal, other than any Acceptable Confidentiality Agreement (each, a “Company Acquisition Agreement”).
(e) Notwithstanding the foregoing or any other provision of this Agreement to the contrary, prior to obtaining the Company Stockholder Approval, but not after, the Board of Directors of the Company or any committee thereof may, in response to a bona fide written Takeover Proposal not solicited in knowing and material breach of this Section 5.02, (i) make an Adverse Recommendation Change or (ii) cause the Company to enter into a Company Acquisition Agreement with respect to such Takeover Proposal and terminate this Agreement pursuant to Section 7.01(d)(ii), in either case if the Board of Directors of the Company or any committee thereof has determined in good faith, after consultation with its financial advisors and outside legal counsel, that such Takeover Proposal constitutes a Superior Proposal; provided that the Board of Directors of the Company or any committee thereof shall not, and shall cause the Company not to, take any such action set forth in clause (i) or (ii) unless (A) the Company has given Parent at least four Business Days’ prior written notice of its intention to take such action (which notice shall specify the identity of the party making such Superior Proposal, the material terms thereof and, if available, copies of any written agreements and other documents relating thereto provided to the Company or its Representatives), (B) 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 and the other agreements contemplated herein that would cause such Superior Proposal to no longer constitute a Superior Proposal and (C) following the end of such notice period the Board of Directors of the Company or any committee thereof shall have considered in good faith such binding offer, and shall have determined that the Superior Proposal would continue to constitute a Superior Proposal if the revisions proposed in such binding offer were to be given effect (it being understood that in the event of any change to the financial terms or any other material terms thereofof such Superior Proposal, this proviso shall again apply with respect to each such revision (but the four Business Day period shall instead be two Business Days). The Company shall not terminate); provided that, amendnone of the Company, modify, waive any of its Affiliates or fail any of their respective Representatives may disclose to enforce any Person or “group” of Persons making a Takeover Proposal the specific price per share or other economic terms of any offer of Parent pursuant to this Section 5.02(e) unless and until a definitive agreement with respect to such Takeover Proposal is executed by the Company.
(f) Notwithstanding the foregoing or any other provision of any “standstill” or similar obligation of any Person unless this Agreement to the contrary, prior to obtaining the Company Stockholder Approval, but not after, the Board (of Directors of the Company or a duly authorized any committee thereof) determines thereof may make an Adverse Recommendation Change in response to an Intervening Event if the Board of Directors of the Company or any committee thereof has determined in good faith, after consultation with its outside legal counsel, that the failure to take such action would reasonably be expected to be inconsistent with its the directors’ fiduciary duties under applicable Law.
(c) Except as otherwise ; provided in this Agreement, neither that the Board of Directors of the Company Board nor or any committee thereof shall (i)(A) withdrawnot, change, qualify, withhold or modify, or publicly propose to withdraw, change, qualify, withhold or modify, in a manner adverse to Parent, and shall cause the Company Board Recommendation, (B) adopt, approve or recommend, or publicly propose to adopt, approve or recommend, any Takeover Proposal, (C) fail to include in the Proxy Statement the Company Board Recommendation, (D) fail to recommend against any Takeover Proposal subject to Regulation 14D under the Exchange Act in any solicitation or recommendation statement made on Schedule 14D-9 within ten (10) Business Days after Parent so requests reaffirmation in writing (provided, that Parent shall be entitled to make such a written request for reaffirmation only once for each Takeover Proposal and once for each material amendment to such Takeover Proposal), or (E) resolve or publicly propose to do any of the foregoing (any action described in this clause (i) being referred to herein as a “Company Adverse Recommendation Change”) or (ii) cause or permit the Company or any of its Affiliates to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, agreement or commitment (other than an Acceptable Confidentiality Agreement) constituting, or that would reasonably be expected to lead not to, take any Takeover Proposal (a “Company Acquisition Agreement”).
(d) Notwithstanding anything to the contrary in this Agreement, at any time prior to obtaining the Company Shareholder Approval, the Company Board (or a duly authorized committee thereof) may make a Company Adverse Recommendation Change (and, solely with respect to a Superior Proposal, terminate this Agreement pursuant to Section 7.1(d)(ii)), if (i) such action unless (A) the Company has given Parent at least four Business Days’ prior written notice of its intention to take such action (which notice shall include a Company reasonably detailed description of such Intervening Event has occurred or Event), (B) the Company has received 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 Superior Proposal other than as a result of a breach binding offer to effect revisions to the terms of this Section 5.3 (Agreement and the other than immaterial breach), in each case, if the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its outside legal counsel, agreements contemplated herein such that the failure to make a Company such Adverse Recommendation Change as a result of the occurrence of such Company Intervening Event or in response to the receipt of such Superior Proposal, as the case may be, would no longer reasonably be expected to be inconsistent with its fiduciary duties the directors’ fiduciaries under applicable Law and (ii) (A) the Company provides Parent prior written notice of its intent to make any Company Adverse Recommendation Change or terminate this Agreement pursuant to Section 7.1(d)(ii) at least four (4) Business Days prior to taking such action to the effect that, absent any modification to the terms and conditions of this Agreement, the Company Board has resolved to effect a Company Adverse Recommendation Change or to terminate this Agreement pursuant to Section 7.1(d)(ii), which notice shall specify the basis for such Company Adverse Recommendation Change or termination and attaching the most current draft of any Company Acquisition Agreement with respect to, the Superior Proposal (or, if no such draft exists, a summary of the material terms and conditions of such Superior Proposal), if applicable (a “Notice of Recommendation Change”) (it being understood that such Notice of Recommendation Change shall not in itself be deemed a Company Adverse Recommendation Change and that any change in price or material revision or amendment to the terms of a Superior Proposal, if applicable, shall require a new notice to which the provisions of clauses (ii)(A), (B) and (C) of this Section 5.3(d) shall apply mutatis mutandis except that, in the case of such a new notice, all references to four (4) Business Days in this Section 5.3(d) shall be deemed to be two (2) Business Days); (B) during such four (4) Business Day period, if requested by Parent, the Company shall make its Representatives available to negotiate in good faith with Parent and its Representatives regarding any modifications to the terms and conditions of this Agreement that Parent proposes to make; and (C) at following the end of such four (4) Business Day period and taking into account any modifications to the terms of this Agreement proposed by Parent, if any, in a written, binding and irrevocable offernotice period, the Board of Directors of the Company Board determines or any committee thereof shall have considered in good faith (after consultation with outside legal counsel) such binding offer, and shall have determined that the failure to make such a Company Adverse Recommendation Change would continue to reasonably be expected to be inconsistent with its the directors’ fiduciary duties under applicable Law, and that, Law if the revisions proposed in such binding offer were to be given effect (it being understood that in the case event of a Company Adverse Recommendation Change any change to the financial or any other material facts of such Intervening Event, this proviso shall again apply with respect to a Takeover Proposal, each such Takeover Proposal still constitutes a Superior Proposalrevision (but the four Business Day period shall instead be two Business Days)).
(eg) Nothing contained in this Section 5.02 or elsewhere in this Agreement shall prohibit the Company or the Board of Directors of the Company Board (or a duly authorized any committee thereof) thereof from (i) taking and disclosing to the shareholders stockholders of the Company a position contemplated by Rule 14e-2(a) under the Exchange Act ), Rule 14d-9 or making a statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9 promulgated under the Exchange Act, Act or (ii) making any disclosure to the shareholders stockholders of the Company that is required by applicable Law or if the Board of Directors of the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its the Company’s outside legal counsel, that the failure of the Board of Directors of the Company to make such disclosure would be reasonably likely to be inconsistent with the directors’ exercise of their duties to the Company’s stockholders under applicable Law, it being understood that (iiix) informing any Person such statement or disclosure made by the Board of the existence of the provisions contained in this Section 5.3 or (iv) making any “stop, look and listen” communication to the shareholders Directors of the Company (or a committee thereof) pursuant to Rule 14d-9(fthis Section 5.02(g) must be subject to the terms and conditions of this Agreement and will not limit or otherwise affect the obligations of the Company or the Board of Directors of the Company (or any committee thereof) and the rights of Parent under this Section 5.02 and (y) nothing in the Exchange Actforegoing will be deemed to permit the Company or the Board of Directors of the Company (or a committee thereof) to effect a Adverse Recommendation Change other than in accordance with Section 5.02(e) or Section 5.02(f).
(fh) The Company agrees that any material breach of this Section 5.02 by any of its Representatives (acting as such at the direction of or on behalf of the Company) will be deemed to be a breach of this Agreement by the Company.
(i) As used in this Agreement, “Takeover Proposal” shall mean any inquiry, proposal or offer (whether or not in writing) from any Person (other than Parent, Merger Sub and any of its Affiliates thereof) to purchase or otherwise acquire, directly or indirectly, in a single transaction or series of related transactions, (a) assets of the Company and its Subsidiaries (including securities of Subsidiaries) that account for 15% or more of the Company’s consolidated assets or from which 15% or more of the Company’s revenues or earnings on a consolidated basis are derived or (b) 15% or more of the outstanding Company Common Stock pursuant to a merger, consolidation or other business combination, sale or issuance of shares of capital stock, tender offer, share exchange, other business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company, in each case other than the Merger.:
Appears in 1 contract
No Solicitation; Change in Recommendation. (a) The Company agrees that it shall, and shall cause each of its Subsidiaries and its and its Subsidiaries’ directors, officers and employees to, and shall use its reasonable best efforts to cause its other and their Representatives to, (i) immediately cease all existing any inquiries, solicitation, encouragement, discussions or negotiations with any Person conducted heretofore Persons with respect to any Takeover Proposal, immediately request the prompt return or destruction of all confidential information previously furnished and immediately terminate all physical and electronic data room access previously granted to any such Person or its Representatives. Except as otherwise provided in this Agreement, from the date of this Agreement until the earlier of the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 7.1, the Company shall not, and shall cause its Subsidiaries and its and its Subsidiaries’ directors, officers and employees not to, and shall use its reasonable best efforts to cause its other Representatives not to, directly or indirectly, (i) solicit, initiate, knowingly encourage or knowingly facilitate any a Takeover Proposal or the making or consummation thereof or (ii) enter into, or otherwise participate in any discussions (except to notify such Person of the existence of the provisions of this Section 5.3) or negotiations regarding, or furnish to any Person any information in connection with, any Takeover Proposal.
(b) Notwithstanding anything to the contrary contained in this Agreement, if the Company or any of its Subsidiaries, or any of its or their respective Representatives receives an unsolicited bona fide written Takeover Proposal made after the date of this Agreement, the Company, the Company Board (or a duly authorized committee thereof) and the Company’s Representatives may engage in negotiations and discussions with, or furnish any information and other access to, any Person making such Takeover Proposal and any of its Representatives or potential sources of financing if the Company Board determines in good faith, after consultation with the Company’s outside legal and financial advisors, that such Takeover Proposal is or could reasonably be expected to lead to a Superior Takeover Proposal; provided ) that existed on or prior to engaging in any negotiations or discussions withthe date of this Agreement, or furnishing any information to, any such Person or its Representatives, the Company and the Person making such Takeover Proposal shall have entered into an Acceptable Confidentiality Agreement. The Company will (ii) promptly (and in any event within the later of twenty-four (244) hours or 5:00 p.m. New York City time Business Days of the date of this Agreement) deliver a written notice to each such Person to the effect that the Company is ending all such discussions and negotiations with such Person, effective on the next Business Daydate of this Agreement, and which written notice shall also request such Person to promptly return or destroy all nonpublic information concerning the Company and its Subsidiaries previously provided to any such Person by the Company or any of its Subsidiaries or their respective Representatives, (iii) notify Parent in writing immediately cease all access of any Person (other than Purchaser and its Affiliates and Representatives and the receipt Company and its Representatives) to any electronic data room maintained by the Company with respect to the transactions contemplated by this Agreement, and (iv) from the date hereof until the Effective Time, not, and not publicly announce any intention to, directly or indirectly, (A) initiate, solicit, cause, or knowingly facilitate or encourage any inquiries or the making of such any proposal or offer that constitutes, or could reasonably be expected to lead to, any Takeover Proposal, (B) engage in, continue or otherwise participate in any discussions or negotiations regarding, furnish to any other Person any non-public information, or afford any other Person with access to the material terms business, employees, officers, contracts, properties, assets, or books and conditions of any such Takeover Proposal and the identity of the Person making such records, in each case in connection with, or that could reasonably be expected to lead to, a Takeover Proposal. The Company will keep Parent informed in all material respects on a prompt basis , or (and in C) grant any event within the later of twenty-four (24) hours waiver, amendment or 5:00 p.m. New York City time on the next Business Day) of the material terms and status of such Takeover Proposal (including release under any change in the price standstill or any other material terms thereof). The Company shall not terminateconfidentiality agreement, amend, modify, waive or fail to enforce any provision of any “standstill” standstill or similar obligation of any Person confidentiality agreement unless the Board of Directors of the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation consulting with its the outside legal counsel, counsel that the failure to take grant any such action waiver, amendment or release would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law.
(cb) Except as otherwise provided Notwithstanding anything contained in Section 5.02(a) or any other provision of this AgreementAgreement to the contrary, neither if at any time after the date hereof and prior to obtaining the Company Board nor any committee thereof shall (i)(A) withdrawStockholder Approval, change, qualify, withhold or modify, or publicly propose to withdraw, change, qualify, withhold or modify, in a manner adverse to Parent, the Company Board Recommendation, (B) adopt, approve or recommend, or publicly propose to adopt, approve or recommend, any Takeover Proposal, (C) fail to include in the Proxy Statement the Company Board Recommendation, (D) fail to recommend against any Takeover Proposal subject to Regulation 14D under the Exchange Act in any solicitation or recommendation statement made on Schedule 14D-9 within ten (10) Business Days after Parent so requests reaffirmation in writing (provided, that Parent shall be entitled to make such a written request for reaffirmation only once for each Takeover Proposal and once for each material amendment to such Takeover Proposal), or (E) resolve or publicly propose to do any of the foregoing (any action described in this clause (i) being referred to herein as a “Company Adverse Recommendation Change”) or (ii) cause or permit the Company or any of its Affiliates Representatives receives a Takeover Proposal that was unsolicited and did not otherwise result from a breach of the Company’s obligations under this Section 5.02, (i) the Company and its Representatives may contact such Person or group of Persons making the Takeover Proposal solely to execute clarify the terms and conditions thereof or enter into, any letter of intent, memorandum of understanding, agreement in principle, agreement or commitment (other than an Acceptable Confidentiality Agreement) constituting, or to request that would reasonably be expected to lead to, any Takeover Proposal made orally be made in writing and (a “Company Acquisition Agreement”).
(dii) Notwithstanding anything to if the contrary in this Agreement, at any time prior to obtaining Board of Directors of the Company Shareholder Approval, the Company Board (or a duly authorized any committee thereof) may make a Company Adverse Recommendation Change (and, solely with respect to a Superior Proposal, terminate this Agreement pursuant to Section 7.1(d)(ii)), if (i) (A) a Company Intervening Event has occurred or (B) the Company has received a Superior Proposal other than as a result of a breach of this Section 5.3 (other than immaterial breach), in each case, if the Company Board (or a duly authorized committee thereof) thereof determines in good faith, after consultation with its financial advisors and outside legal counsel, that both (A) the failure to make a Company Adverse Recommendation Change as a result take the applicable action referred to in either of clause (x) or (y) below would be inconsistent with the exercise of fiduciary duties of the occurrence Board of such Directors of the Company Intervening Event or in response to the receipt of Company’s stockholders under applicable Law and (B) such Superior Proposal, as the case may be, Takeover Proposal would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law and (ii) (A) result, after the Company provides Parent prior written notice of its intent to make any Company Adverse Recommendation Change or terminate this Agreement pursuant to Section 7.1(d)(ii) at least four (4) Business Days prior to taking such action to the effect that, absent any modification to the terms and conditions of this Agreement, the Company Board has resolved to effect a Company Adverse Recommendation Change or to terminate this Agreement pursuant to Section 7.1(d)(ii), which notice shall specify the basis for such Company Adverse Recommendation Change or termination and attaching the most current draft of any Company Acquisition Agreement with respect to, the Superior Proposal (or, if no such draft exists, a summary of the material terms and conditions actions referred to in either of such Superior Proposal)clause (x) or (y) below, if applicable (a “Notice of Recommendation Change”) (it being understood that such Notice of Recommendation Change shall not in itself be deemed a Company Adverse Recommendation Change and that any change in price or material revision or amendment to the terms of a Superior Proposal, if applicablethen the Company and its Representatives may (x) enter into an Acceptable Confidentiality Agreement with the Person or group of Persons making the Takeover Proposal and, shall require a new notice after entering into such Acceptable Confidentiality Agreement, furnish pursuant thereto information (including non-public information) with respect to which the provisions Company and its Subsidiaries to the Person or group of clauses (ii)(A), (B) Persons who has made such Takeover Proposal and (Cy) following entry into such Acceptable Confidentiality Agreement, engage in or otherwise participate in discussions or negotiations with the Person or group of Persons making such Takeover Proposal. If, pursuant to clause (x) of this Section 5.3(d) shall apply mutatis mutandis except thatthe foregoing sentence, in the case Company furnishes to a Person or group of such Persons making a new notice, all references Takeover Proposal any written information or other material information concerning the Company or its Subsidiaries that has not previously been furnished or made available to four (4) Business Days in this Section 5.3(d) shall be deemed to be two (2) Business Days); (B) during such four (4) Business Day period, if requested by ParentPurchaser or its Representatives, the Company shall make its Representatives available to negotiate promptly (and in good faith with Parent and its Representatives regarding any modifications to the terms and conditions of this Agreement that Parent proposes to make; and (C) at the end of such event within twenty-four (424) Business Day period and taking into account any modifications hours) furnish such information to the terms of this Agreement proposed by Parent, if any, in a written, binding and irrevocable offer, the Company Board determines in good faith (after consultation with outside legal counsel) that the failure to make such a Company Adverse Recommendation Change would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, and that, in the case of a Company Adverse Recommendation Change with respect to a Takeover Proposal, such Takeover Proposal still constitutes a Superior Proposal.
(e) Nothing contained in this Agreement shall prohibit the Company or the Company Board (or a duly authorized committee thereof) from (i) taking and disclosing to the shareholders of the Company a position contemplated by Rule 14e-2(a) under the Exchange Act or making a statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9 under the Exchange Act, (ii) making any disclosure to the shareholders of the Company if the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure to make such disclosure would be reasonably likely to be inconsistent with applicable Law, (iii) informing any Person of the existence of the provisions contained in this Section 5.3 or (iv) making any “stop, look and listen” communication to the shareholders of the Company pursuant to Rule 14d-9(f) under the Exchange Act.
(f) Purchaser. As used in this Agreement, the term “Takeover ProposalAcceptable Confidentiality Agreement” shall mean means any inquiry, proposal or offer (whether or not in writing) from any Person (other than Parent, Merger Sub and any of its Affiliates thereof) to purchase or otherwise acquire, directly or indirectly, in a single transaction or series of related transactions, (a) assets of confidentiality agreement entered into by the Company from and its Subsidiaries (including securities of Subsidiaries) after the date hereof that account for 15% or more of contains provisions that are substantially similar to and not less favorable in the Company’s consolidated assets or from which 15% or more of aggregate to the Company’s revenues or earnings on Company than those contained in the Confidentiality Agreement, except that such confidentiality agreement need not include a consolidated basis are derived or (b) 15% or more of the outstanding Company Common Stock pursuant to a merger, consolidation or other business combination, sale or issuance of shares of capital stock, tender offer, share exchange, other business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company, in each case other than the Mergerstandstill.
Appears in 1 contract
Samples: Merger Agreement (RealD Inc.)
No Solicitation; Change in Recommendation. (a) The Subject to Section 5.04(b) and (c), from and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article VIII, (x) the Company agrees that it shall, shall and shall cause each of its Subsidiaries and its and its Subsidiaries’ directorstheir respective officers, officers directors and employees to, and (y) the Company shall instruct and use its commercially reasonable best efforts to cause each of its consultants, agents, financial advisors, attorneys, accountants, other Representatives toadvisors, Affiliates and other representatives (collectively, including the Persons identified in the immediately preceding clause (x), “Representatives”) to (i) immediately cease all existing any discussions or negotiations with any Person conducted heretofore Persons that have occurred or are currently ongoing with respect to any Takeover Proposal, immediately request the prompt return or destruction of all confidential information previously furnished an Alternative Proposal and immediately terminate all physical and electronic data room access previously granted to any such Person or its Representatives. Except as otherwise provided in this Agreement, from the date of this Agreement until the earlier of the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 7.1, the Company shall (ii) not, and shall cause its Subsidiaries and its and its Subsidiaries’ directors, officers and employees not to, and shall use its reasonable best efforts to cause its other Representatives not to, directly or indirectly, (iA) solicit, initiate, knowingly encourage initiate or knowingly facilitate or encourage (including by way of furnishing non-public information) any Takeover Proposal inquiries regarding, or the making of any proposal or consummation thereof offer that constitutes, or would reasonably be expected to lead to, an Alternative Proposal or (iiB) enter intoengage in, continue or otherwise participate in any discussions (except to notify such Person of the existence of the provisions of this Section 5.3) or negotiations regarding, or furnish to any other Person any non-public information in connection withwith or for the purpose of encouraging or facilitating, any Takeover an Alternative Proposal.
(b) Notwithstanding anything to the contrary contained in this AgreementSection 5.04(a), if at any time on or after the date hereof and prior to obtaining the Company Shareholder Approval (but not thereafter), the Company or any of its Subsidiaries, or any of its or their respective Representatives receives an unsolicited bona fide a written Takeover Alternative Proposal made after the date from any Person or group of Persons, which Alternative Proposal did not result from any breach of this AgreementSection 5.04, the Company, the Company Board (or a duly authorized committee thereofA) and the Company’s Representatives may engage in negotiations and discussions with, or furnish any information and other access to, any Person making such Takeover Proposal and any of its Representatives or potential sources of financing if the Company Board determines in good faith, after consultation with the Company’s outside legal and financial advisors, that such Takeover Proposal is or could reasonably be expected to lead to a Superior Proposal; provided that prior to engaging in any negotiations or discussions with, or furnishing any information to, any such Person or its Representatives, the Company and the Person making such Takeover Proposal shall have entered into an Acceptable Confidentiality Agreement. The Company will promptly (and in any event within the later of twenty-four (24) hours or 5:00 p.m. New York City time on the next Business Day) notify Parent in writing of the receipt of such Takeover Proposal, the material terms and conditions of any such Takeover Proposal and the identity of the Person making such Takeover Proposal. The Company will keep Parent informed in all material respects on a prompt basis (and in any event within the later of twenty-four (24) hours or 5:00 p.m. New York City time on the next Business Day) of the material terms and status of such Takeover Proposal (including any change in the price or any other material terms thereof). The Company shall not terminate, amend, modify, waive or fail to enforce any provision of any “standstill” or similar obligation of any Person unless the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure to take such action would reasonably be expected to be inconsistent with its the directors’ fiduciary duties under applicable LawFlorida Law and (B) if the Company Board determines in good faith, After Consultation, that such Alternative Proposal constitutes or would reasonably be expected to result in a Superior Proposal, then the Company and its Representatives may (x) furnish, pursuant to an Acceptable Confidentiality Agreement, information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group of Persons who has made such Alternative Proposal; provided that the Company shall promptly (and in any event within 24 hours) provide to Parent any material non-public information concerning the Company or any of its Subsidiaries that is provided to any Person given such access which was not previously provided to Parent or its Representatives and (y) engage in or otherwise participate in discussions or negotiations with the Person or group of Persons making such Alternative Proposal. The Company shall promptly (and in any event within 24 hours) provide to Parent (i) to the extent in the possession of the Company, its Subsidiaries or their respective Representatives, an unredacted copy of the transaction documents for any such Alternative Proposal provided to the Company or any of its Subsidiaries (including unredacted copies of any proposal letters, side letters, other ancillary document and/or financing commitments (including any fee letters) relating thereto) and (ii) a written summary of the material terms of any such Alternative Proposal not covered by clause (i) (including any financing commitments relating thereto). The terms and existence of any such Alternative Proposal, the identity of the Group or group of Persons making such Alternative Proposal, and all information provided to Parent pursuant to Section 5.04(c) and Section 5.04(d) shall be deemed “Confidential Information” under, and subject to the terms of, the Confidentiality Agreement.
(c) The Company shall keep Parent reasonably informed of any material developments, discussions or negotiations regarding any Alternative Proposal on a prompt basis (and in any event within 24 hours) and upon the reasonable request of Parent shall apprise Parent of the status of such Alternative Proposal. The Company agrees that it and its Subsidiaries will not enter into any confidentiality agreement with any Person subsequent to the date hereof which prohibits the Company from providing any information to Parent in accordance with this Section 5.04.
(d) Except as otherwise provided in expressly permitted by this AgreementSection 5.04(d) or Section 5.04(e), neither the Company Board nor any committee thereof shall not (i)(A) withdrawfail to make the Company Recommendation or fail to include the Company Recommendation in the Proxy Statement, (B) change, qualify, withhold withhold, withdraw or modify, or publicly propose to withdraw, change, qualify, withhold withhold, withdraw or modify, in a manner adverse to Parent, the Company Board Recommendation, (BC) if requested in writing by Parent, fail to publicly recommend to the Company’s shareholders rejection of an Alternative Proposal (including any tender or exchange offer) within 10 Business Days after the announcement or commencement thereof, or (D) adopt, approve or recommend, or publicly propose to adopt, approve or recommend, any Takeover Proposal, (C) fail recommend to include in the Proxy Statement shareholders of the Company Board Recommendation, an Alternative Proposal (D) fail to recommend against any Takeover Proposal subject to Regulation 14D under the Exchange Act in any solicitation or recommendation statement made on Schedule 14D-9 within ten (10) Business Days after Parent so requests reaffirmation in writing (provided, that Parent shall be entitled to make such a written request for reaffirmation only once for each Takeover Proposal and once for each material amendment to such Takeover Proposal), or (E) resolve or publicly propose to do any of the foregoing (any action actions described in this clause (i) being referred to herein as a an “Company Adverse Recommendation Change”) or ), (ii) authorize, cause or permit the Company or any of its Affiliates Subsidiaries to execute or enter into, into any letter of intent, memorandum of understanding, agreement or agreement in principle, agreement or commitment principle with respect to any Alternative Proposal (other than an Acceptable Confidentiality AgreementAgreement in accordance with Section 5.04(b)) constituting(each, or that would reasonably be expected to lead to, any Takeover Proposal (a “Company Acquisition Agreement”) or (iii) terminate this Agreement pursuant to Section 8.01(d). Notwithstanding anything to the contrary set forth in this Agreement, prior to the time the Company Shareholder Approval is obtained, but not after, in connection with an Alternative Proposal that did not result from a violation of Section 5.04, the Company Board may make an Adverse Recommendation Change or terminate this Agreement pursuant to Section 8.01(d) if the Company Board has determined in good faith, After Consultation, (x) that failure to take such action would reasonably be expected to be inconsistent with the directors’ fiduciary duties under Florida Law and (y) that such Alternative Proposal constitutes a Superior Proposal; provided, however, that prior to making any such Adverse Recommendation Change or terminating this Agreement (1) the Company has given Parent at least four Business Days’ prior written notice of its intention to take such action (which notice shall include, to the extent in the possession of the Company, its Subsidiaries or their respective Representatives, an unredacted copy of the Superior Proposal, an unredacted copy of the most recent draft of the relevant proposed transaction agreements and an unredacted copy of any proposal letter, side letter, other ancillary document and/or financing commitments (including fee letters) relating thereto and a written summary of the material terms of any Superior Proposal not made in writing, including any financing commitments relating thereto), (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 has notified the Company that it wishes to so negotiate, to enable Parent to submit to the Company prior to the expiration of the aforementioned notice period a proposed definitive amendment to this Agreement (in such form which, if accepted and approved by the Company Board and entered into, would constitute a binding definitive agreement among the Company, Parent and Merger Sub) (and, if applicable, the Financing Letter and/or any other material transaction documents), and (3) if Parent shall have submitted to the Company prior to the expiration of such notice period the proposed definitive amendments described in clause (2), the Company Board shall have determined in good faith, After Consultation, that after giving effect to such proposed amendments and entering into the definitive amendment to this Agreement (and, if applicable, the Financing Letter and/or any other material transaction documents) proposed by Parent that the Superior Proposal would continue to constitute a Superior Proposal; provided, further, however, (i) that any change to the price or other material change to the material terms of such Superior Proposal will require a new written notice to be delivered by the Company to Parent consistent with the content requirements described in clause (1) above and a new two Business Day period and negotiation period shall commence under this Section 5.04(d), (ii) the Company has complied in all material respects with its obligations under this Section 5.04, and (iii) purported termination of this Agreement pursuant to this sentence shall be void and of no force and effect, unless the Company termination is made in accordance with Section 8.01(d) and the Company pays Parent the applicable Termination Fee in accordance with Section 8.03 prior to or concurrently with such termination.
(de) Notwithstanding anything to the contrary in this Agreementherein, at any time prior to obtaining the time the Company Shareholder ApprovalApproval is obtained, but not after, solely in response to an Intervening Event, the Company Board (or a duly authorized committee thereof) may make a Company effect an Adverse Recommendation Change if the Board of Directors of the Company has determined in good faith, After Consultation, that failure to take such action would reasonably be expected to be inconsistent with the directors’ fiduciary duties under Florida Law; provided, however, that prior to taking such action, (andx) the Company Board has given Parent at least four Business Days’ prior written notice of its intention to take such action and a description of the reasons for taking such action, solely with respect to a Superior Proposal, terminate this Agreement pursuant to Section 7.1(d)(ii)), if (i) (A) a Company Intervening Event has occurred or (By) the Company has received negotiated, and has caused its Representatives to negotiate, in good faith with Parent during such notice period, to the extent Parent has notified the Company that it wishes to so negotiate, to enable Parent to submit to the Company prior to the expiration of the aforementioned notice period a Superior Proposal proposed definitive amendment to this Agreement (in such form which, if accepted and approved by the Company Board and entered into, would constitute a binding definitive agreement among the Company, Parent and Merger Sub) (and, if applicable, the Financing Letter and/or any other than as a result material transaction documents) and (z) if Parent shall have submitted to the Company prior to the expiration of a breach of such notice period the proposed definitive amendments described in clause (y), the Company Board shall have determined in good faith, After Consultation, that after giving effect to such proposed amendments and entering into the definitive amendment to this Agreement (and, if applicable, the Financing Letter and/or any other material transaction documents) proposed by Parent, that failure to effect an Adverse Recommendation Change would reasonably be expected to be inconsistent with the directors’ fiduciary duties under Florida Law.
(f) Nothing contained in this Section 5.3 5.04 shall prohibit the Company from (other than immaterial breach)x) taking and disclosing to its shareholders a position contemplated by Rule 14d-9, in each case, Rule 14e-2(a) or Item 1012 of Regulation M-A under the Exchange Act or (y) making any disclosure to its shareholders if the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its outside legal counselAfter Consultation, that making such disclosure would be required by applicable Law (and, in the failure to make a Company Adverse Recommendation Change as a result case of the occurrence of Company Board’s fiduciary duties, not making such Company Intervening Event or in response to the receipt of such Superior Proposal, as the case may be, disclosure would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law and Florida Law) or (ii) (A) the Company provides Parent prior written notice of making any “stop-look-and-listen” communication to its intent to make any Company Adverse Recommendation Change or terminate this Agreement shareholders pursuant to Section 7.1(d)(ii14d-9(f) at least four (4) Business Days prior to taking such action to under the effect that, absent any modification to the terms and conditions of this Agreement, the Company Board has resolved to effect a Company Adverse Recommendation Change or to terminate this Agreement pursuant to Section 7.1(d)(ii), which notice shall specify the basis for such Company Adverse Recommendation Change or termination and attaching the most current draft of any Company Acquisition Agreement with respect to, the Superior Proposal (or, if no such draft exists, a summary of the material terms and conditions of such Superior Proposal), if applicable (a “Notice of Recommendation Change”) (it being understood that such Notice of Recommendation Change shall not in itself be deemed a Company Adverse Recommendation Change and that any change in price or material revision or amendment to the terms of a Superior Proposal, if applicable, shall require a new notice to which the provisions of clauses (ii)(A), (B) and (C) of this Section 5.3(d) shall apply mutatis mutandis except that, in the case of such a new notice, all references to four (4) Business Days in this Section 5.3(d) shall be deemed to be two (2) Business Days); (B) during such four (4) Business Day period, if requested by Parent, the Company shall make its Representatives available to negotiate in good faith with Parent and its Representatives regarding any modifications to the terms and conditions of this Agreement that Parent proposes to make; and (C) at the end of such four (4) Business Day period and taking into account any modifications to the terms of this Agreement proposed by Parent, if any, in a written, binding and irrevocable offer, the Company Board determines in good faith (after consultation with outside legal counsel) that the failure to make such a Company Adverse Recommendation Change would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, and that, in the case of a Company Adverse Recommendation Change with respect to a Takeover Proposal, such Takeover Proposal still constitutes a Superior Proposal.
(e) Nothing contained in this Agreement shall prohibit the Company or the Company Board Exchange Act (or a duly authorized committee thereof) from (i) taking and disclosing any similar communications to the shareholders of the Company whether or not in the context of a position contemplated tender offer or exchange offer that discloses the occurrence of any state of facts, events, conditions or developments but does not include an Adverse Recommendation Change); provided that, it is hereby acknowledged and agreed that a factually accurate public or other statement made by Rule 14e-2(a) under the Exchange Act or making a statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9 under the Exchange Act, (ii) making any disclosure to the shareholders of the Company if the Company Board (or a duly authorized committee thereof) determines including in good faith, after consultation with its outside legal counsel, that the failure response to make such disclosure would be reasonably likely to be inconsistent with applicable Law, (iii) informing any Person of the existence of the provisions contained in this Section 5.3 or (iv) making any “stop, look and listen” communication to the shareholders of the Company pursuant to Rule 14d-9(f) under the Exchange Act.
(f) As used in this Agreement, “Takeover Proposal” shall mean any unsolicited inquiry, proposal or offer (whether or expression of interest made by any Person to the Company not in writingviolation of this Section 5.04) from that describes the operations of the provisions of this Section 5.04 and of Section 8.01(d) will not, in and of itself, constitute an Adverse Recommendation Change for any Person (other than Parentpurpose of this Agreement; provided, Merger Sub and further, in any of its Affiliates thereof) to purchase or otherwise acquirethe foregoing, directly or indirectly, in a single transaction or series of related transactions, (a) assets so long as any such statement includes an express reaffirmation of the Company and its Subsidiaries Recommendation.
(including securities g) For purposes of Subsidiaries) that account for 15% or more of the Company’s consolidated assets or from which 15% or more of the Company’s revenues or earnings on a consolidated basis are derived or (b) 15% or more of the outstanding Company Common Stock pursuant to a merger, consolidation or other business combination, sale or issuance of shares of capital stock, tender offer, share exchange, other business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company, in each case other than the Merger.this Agreement:
Appears in 1 contract
Samples: Merger Agreement (Exactech Inc)
No Solicitation; Change in Recommendation. (a) The Company agrees that it shall, and shall cause its Subsidiaries and its and its Subsidiaries’ directors, officers and employees to, and shall use its reasonable best efforts to cause its other Representatives to, immediately cease all existing discussions or negotiations with any Person conducted heretofore with respect to any Takeover Proposal, immediately request the prompt return or destruction of all confidential information previously furnished and immediately terminate all physical and electronic data room access previously granted to any such Person or its Representatives. Except as otherwise provided in expressly permitted by this AgreementSection 5.4, from and after the date of this Agreement until the earlier of the Effective Time or and the date, if any, on which termination of this Agreement is terminated pursuant to Section 7.1in accordance with Article VII, (x) the Company shall not, and shall cause each of its Subsidiaries not to, and its and their respective employees, officers and directors not to, and (y) the Company shall use its reasonable best efforts to cause each of its and its Subsidiaries’ respective investment bankers, attorneys, accountants and other advisors, agents and representatives (a Person’s employees, directors, officers, investment bankers, attorneys, accountants, other advisors, agents and representatives, collectively, “Representatives”) not to (i) directly or indirectly, solicit, initiate, knowingly facilitate or encourage (including by means of furnishing non-public Company information) any inquiries, expressions of interest, requests for information, discussions, proposals or offers that constitute, or would reasonably be expected to lead to, an Acquisition Proposal, (ii) provide (including through access to any data room) any non-public information relating to Parent or Merger Sub to any Person relating to an Acquisition Proposal or that would reasonably be expected to lead to an Acquisition Proposal, (iii) enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, share purchase agreement, asset purchase agreement, share exchange agreement, option agreement or other Contract (other than an Acceptable Confidentiality Agreement entered into in accordance with the terms of this Agreement) with respect to an Acquisition Proposal or requiring the Company to abandon, terminate or fail to consummate the transactions contemplated by this Agreement (each, an “Alternative Acquisition Agreement”), (iv) otherwise knowingly facilitate any effort or attempt to make an Acquisition Proposal, (v) terminate, waive, amend, release or modify any provision of, grant permission under, or take any other action having a similar effect with respect to, any standstill, confidentiality or similar agreement to which the Company is a party, except to the extent necessary to allow the counterparty thereof to make a private Acquisition Proposal to the Company Board in accordance with this Agreement, (vi) provide any further information with respect to the Company or any Acquisition Proposal (and shall turn off any data rooms maintained by the Company) to any Persons or their Representatives, or (vii) resolve, propose or agree to do any of the foregoing. The Company shall, and shall cause each of its Subsidiaries to, and its and their respective employees, officers and employees not directors to, and shall use its reasonable best efforts to cause each of its other and its Subsidiaries’ respective Representatives not to, directly or indirectly, (i) solicit, initiate, knowingly encourage or knowingly facilitate immediately cease all discussions and negotiations with any Takeover Proposal or Person initiated and conducted prior to the making or consummation thereof or (ii) enter into, or otherwise participate in any discussions (except to notify such Person of the existence of the provisions of this Section 5.3) or negotiations regarding, or furnish date hereof with respect to any Person any information in connection with, any Takeover Acquisition Proposal.
(b) Notwithstanding anything to the contrary contained in Section 5.4(a) or elsewhere in this Agreement, express or implied, if at any time on or after the date hereof and prior to the Written Consent Effective Time, the Company or any of its Subsidiaries, or any of its or their respective Representatives receives an unsolicited bona fide a written Takeover Acquisition Proposal made after the date from any Person that did not result from a breach of this Agreement, the CompanySection 5.4(a), the Company and its Representatives may contact the Person who made such Acquisition Proposal (and such Person’s Representatives) solely to ascertain facts or clarify terms so that the Company Board (or a duly authorized committee thereof) may become fully informed with respect to the terms and conditions of such Acquisition Proposal and the Company’s Representatives may engage in negotiations Person who submitted the same, and discussions with, or furnish any information and other access to, any Person making such Takeover Proposal and any of its Representatives or potential sources of financing if the Company Board determines in good faith, after consultation (A) After Consultation with the Company’s financial advisor and outside legal and financial advisorscounsel, that such Takeover Acquisition Proposal is constitutes or could would reasonably be expected to lead to a Superior Proposal; provided that prior to engaging in any negotiations or discussions with, or furnishing any information to, any such Person or its Representatives, the Company and the Person making such Takeover Proposal shall have entered into an Acceptable Confidentiality Agreement. The Company will promptly (and in any event within the later of twenty-four (24) hours or 5:00 p.m. New York City time on the next Business Day) notify Parent in writing of the receipt of such Takeover Proposal, the material terms and conditions of any such Takeover Proposal and (B) After Consultation with the identity of the Person making such Takeover Proposal. The Company will keep Parent informed in all material respects on a prompt basis (and in any event within the later of twenty-four (24) hours or 5:00 p.m. New York City time on the next Business Day) of the material terms and status of such Takeover Proposal (including any change in the price or any other material terms thereof). The Company shall not terminate, amend, modify, waive or fail to enforce any provision of any “standstill” or similar obligation of any Person unless the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its Company’s outside legal counsel, that the failure to take such action the actions described in clause (x) or (y) below would reasonably be expected to be inconsistent with its fiduciary the duties of the Company’s directors under applicable Law, then the Company and its Representatives may (x) furnish, pursuant to an Acceptable Confidentiality Agreement, information (including non-public Company information) to the Person who made such Acquisition Proposal; provided that the Company promptly (and in any event within 48 hours) shall provide to Parent such material non-public information, if such information was not previously provided to Parent or its Representatives, and (y) engage and participate in discussions and negotiations with the Person making such Acquisition Proposal. The Company shall promptly (and in any event within 48 hours) provide to Parent to the extent provided to and in the possession of the Company, its Subsidiaries or their respective Representatives, a copy of the proposed transaction documents in respect of such Acquisition Proposal (including any financing commitments relating thereto, but not including any financing fee information). The terms and existence of any such Acquisition Proposal, the identity of the Person making such Acquisition Proposal, and all information provided to Parent pursuant to this Section 5.4(b) shall be deemed “Confidential Information” under, and subject to the terms of, the Confidentiality Agreement. The Company shall keep Parent reasonably informed (promptly and in any event within 24 hours) of any material developments, discussions or negotiations regarding the status of any Acquisition Proposal.
(c) Except as otherwise provided in this Agreementexpressly permitted by Section 5.4(d), neither the Company Board nor any committee thereof shall not (i)(A) withdrawfail to make the Company Recommendation or fail to include the Company Recommendation in the Information Statement, (B) change, qualify, withhold withhold, withdraw or modify, or propose publicly propose to withdraw, change, qualify, withhold withhold, withdraw or modify, in each case in a manner adverse to Parent, the Company Board Recommendation, (BC) fail to publicly recommend to the Stockholders rejection of any Acquisition Proposal constituting a tender or exchange offer within 10 Business Days after the “commencement” (within the meaning of Rule 14d-2 under the Exchange Act) thereof or (D) adopt, approve or recommend, or propose publicly propose to adopt, approve or recommend, any Takeover Proposalan Acquisition Proposal to the Stockholders, (C) fail to include in the Proxy Statement the Company Board Recommendation, (D) fail to recommend against any Takeover Proposal subject to Regulation 14D under the Exchange Act in any solicitation or recommendation statement made on Schedule 14D-9 within ten (10) Business Days after Parent so requests reaffirmation in writing (provided, that Parent shall be entitled to make such a written request for reaffirmation only once for each Takeover Proposal and once for each material amendment to such Takeover Proposal), or (E) resolve or publicly propose to do any of the foregoing (any action described in this clause (i) being referred to herein as a “Company Adverse Recommendation Change”) or (ii) authorize, cause or permit the Company or any of its Affiliates Subsidiaries to execute or enter into, into any letter of intent, memorandum of understanding, agreement in agreement-in-principle, written commitment or definitive agreement or commitment with respect to any Acquisition Proposal (other than an Acceptable Confidentiality AgreementAgreement in accordance with Section 5.4(b)) constituting(the actions described in clauses (i) and (ii) being referred to, collectively, as an “Adverse Recommendation Change”), or that would reasonably be expected (iii) terminate this Agreement pursuant to lead to, any Takeover Proposal (a “Company Acquisition Agreement”Section 7.3(b).
(d) Notwithstanding anything to the contrary set forth in this Section 5.4 or elsewhere in this Agreement, at any time express or implied, prior to obtaining the Written Consent Effective Time, in connection with any Acquisition Proposal received by the Company Shareholder Approvalthat did not result from a material breach of Section 5.4(a), the Company Board (or a duly authorized committee thereof) may make a Company an Adverse Recommendation Change (and, solely with respect to a Superior Proposal, and terminate this Agreement pursuant to Section 7.1(d)(ii)), 7.3(b) if (i) (A) a Company Intervening Event it has occurred or (B) the Company has received a Superior Proposal other than as a result of a breach of this Section 5.3 (other than immaterial breach), in each case, if the Company Board (or a duly authorized committee thereof) determines determined in good faith, after consultation with its outside legal counselAfter Consultation, that such Acquisition Proposal constitutes a Superior Proposal; provided, however, that the failure Company shall not be entitled to make a Company Adverse Recommendation Change as a result of the occurrence of such Company Intervening Event or in response to the receipt of such Superior Proposal, as the case may be, would reasonably be expected to be inconsistent with exercise its fiduciary duties under applicable Law and (ii) (A) the Company provides Parent prior written notice of its intent right to make any Company such Adverse Recommendation Change or terminate this Agreement pursuant to Section 7.1(d)(ii7.3(b) at least four until after the fourth (44th) Business Days prior Day (the “Superior Proposal Notice Period”) following Parent’s receipt of written notice (a “Superior Proposal Notice”) from the Company advising Parent that the Company Board intends to taking take such action to action, including the effect that, absent any modification to details of the terms and conditions of any Superior Proposal that is the basis of the proposed action by the Company Board and the identity of the party making such Superior Proposal, and, if applicable, contemporaneously providing a copy of all of the relevant proposed transaction agreements and any other material documents provided by, or material correspondence with, the party making such Superior Proposal; and provided, further, that prior to making such Adverse Recommendation Change or terminating this AgreementAgreement pursuant to Section 7.3(b), (i) the Company shall have negotiated, and have caused its Representatives to negotiate, in good faith with Parent during the Superior Proposal Notice Period, to the extent Parent theretofore shall have notified the Company that it desires to so negotiate, to enable Parent to submit to the Company, prior to the expiration of the Superior Proposal Notice Period, a proposed definitive amendment to this Agreement in such form that, if approved by the Company Board and entered into, would constitute a binding definitive agreement among the Company, Parent and Merger Sub (and, if applicable, any other material transaction documents), and (ii) if Parent shall have submitted to the Company prior to the expiration of the Superior Proposal Notice Period the proposed definitive amendments described in clause (i), the Company Board has resolved shall have determined in good faith, After Consultation, that after giving effect to effect such proposed amendments and entering into the aforementioned definitive amendment to this Agreement (and, if applicable, or any other material transaction documents) proposed by Parent, the applicable Acquisition Proposal would continue to constitute a Superior Proposal; provided, further, however, (1) that any change to the price or other material change to the material terms of such Acquisition Proposal will require a new Superior Proposal Notice, to be delivered by the Company to Parent consistent with the content requirements described in clause (i) above, and will trigger a new three (3) Business Day period following Parent’s receipt of such new Superior Proposal Notice (a “Subsequent Superior Proposal Notice Period”) during which the Company shall not be entitled to exercise its right to make any such Adverse Recommendation Change or to terminate this Agreement pursuant to Section 7.1(d)(ii7.3(b) and shall comply with its obligations set forth in clauses (i) and (ii) above, and (2) any purported termination of this Agreement pursuant to this sentence shall be void and of no force and effect unless the Company terminates this Agreement in accordance with Section 7.3(b), which notice shall specify has complied in all material respects with its obligations under this Section 5.4 and pays (or causes to be paid) to Parent the basis for Company Termination Payment in accordance with Section 7.5(b) substantially concurrently with such termination. The Company Board may not make an Adverse Recommendation Change or termination and attaching the most current draft of any Company Acquisition Agreement with in respect to, the Superior Proposal (or, if no such draft exists, a summary of the material terms and conditions of such Superior Proposal), if applicable (a “Notice of Recommendation Change”) (it being understood that such Notice of Recommendation Change shall not in itself be deemed a Company Adverse Recommendation Change and that any change in price or material revision or amendment to the terms of a Superior Proposal, Proposal if applicable, shall require any such Superior Proposal resulted from a new notice to which breach by the provisions of clauses (ii)(A), (B) and (C) Company of this Section 5.3(d) shall apply mutatis mutandis except that, in the case of such a new notice, all references to four (4) Business Days in this Section 5.3(d) shall be deemed to be two (2) Business Days); (B) during such four (4) Business Day period, if requested by Parent, the Company shall make its Representatives available to negotiate in good faith with Parent and its Representatives regarding any modifications to the terms and conditions of this Agreement that Parent proposes to make; and (C) at the end of such four (4) Business Day period and taking into account any modifications to the terms of this Agreement proposed by Parent, if any, in a written, binding and irrevocable offer, the Company Board determines in good faith (after consultation with outside legal counsel) that the failure to make such a Company Adverse Recommendation Change would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, and that, in the case of a Company Adverse Recommendation Change with respect to a Takeover Proposal, such Takeover Proposal still constitutes a Superior Proposal5.4.
(e) Nothing contained in this Agreement Section 5.4 shall prohibit the Company or the Company Board (or a duly authorized committee thereof) from (i) (x) taking and disclosing to the shareholders of the Company Stockholders a position contemplated by Rule 14d-9, Rule 14e-2(a) or Item 1012 of Regulation M-A under the Exchange Act or making a statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9 under the Exchange Act, (iiy) making any disclosure to the shareholders of the Company Stockholders if the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation After Consultation with its the Company’s outside legal counsel, that the failure to make such disclosure would reasonably be reasonably likely to be inconsistent with applicable Law (and, specifically in the case of the duties of the Company’s directors under applicable Law, (iii) informing any Person that the failure to make such disclosure would reasonably be expected to be inconsistent with the duties of the existence of Company’s directors under the provisions contained in this Section 5.3 applicable Law) or (ivii) making any “stop, look and -look-and-listen” communication to the shareholders of the Company Stockholders pursuant to Rule Section 14d-9(f) under the Exchange Act.
Act (f) As used or any similar communications to the Stockholders, whether or not in this Agreementthe context of a tender offer or exchange offer, “Takeover Proposal” shall mean that discloses the occurrence of any state of facts, events, conditions or developments but does not include an Adverse Recommendation Change); provided that, it is hereby acknowledged and agreed that a factually accurate public or other statement made by the Company (including in response to any unsolicited inquiry, proposal or offer (whether or expression of interest made by any Person to the Company not in writingbreach of Section 5.4(a) from any Person (other than Parent, Merger Sub and any that describes the operations of its Affiliates thereofthe provisions of this Section 5.4 and/or Section 7.3(b) to purchase or otherwise acquire, directly or indirectlywill not, in a single transaction and of itself, constitute an Adverse Recommendation Change, so long as any such factually accurate public or series of related transactions, (a) assets other statement includes an express reaffirmation of the Company and its Subsidiaries (including securities of Subsidiaries) that account for 15% or more of the Company’s consolidated assets or from which 15% or more of the Company’s revenues or earnings on a consolidated basis are derived or (b) 15% or more of the outstanding Company Common Stock pursuant to a merger, consolidation or other business combination, sale or issuance of shares of capital stock, tender offer, share exchange, other business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company, in each case other than the MergerRecommendation).
Appears in 1 contract
No Solicitation; Change in Recommendation. (a) The Company agrees that it shall, and shall cause its Subsidiaries and its and its Subsidiaries’ directors, officers and employees to, and shall use its reasonable best efforts to cause its other Representatives to, immediately cease all existing discussions or negotiations with any Person conducted heretofore with respect to any Takeover Proposal, immediately request the prompt return or destruction of all confidential information previously furnished and immediately terminate all physical and electronic data room access previously granted to any such Person or its Representatives. Except as otherwise provided in this Agreement, from From the date of this Agreement until the earlier of the Effective Time or the date, if any, on which termination of this Agreement is terminated pursuant to Section 7.1Agreement, the Company shall not, will not and shall cause will not authorize or permit any Subsidiary or any of its Subsidiaries and its and its Subsidiaries’ directors, officers and employees not to, and shall use its reasonable best efforts to cause its other Representatives not to, directly or indirectly, :
(i) solicit, initiateseek or initiate any inquiries, knowingly encourage proposals or knowingly facilitate any Takeover Proposal offers other than from Parent or the making an Affiliate thereof that constitute, or consummation thereof or would be reasonably likely to lead to, an Acquisition Proposal;
(ii) enter intoengage in discussions or negotiations with any Person or group other than Parent or its affiliates (a “Third Party”) concerning any Acquisition Proposal, or otherwise participate in provide any discussions (except non-public information, or afford access to notify such Person the properties, books, records, or personnel of the existence Company or any of its Subsidiaries, to any Third Party that the Company has reason to believe is considering making, or has made, any Acquisition Proposal;
(iii) grant any waiver, amendment or release under any standstill or confidentiality agreement;
(iv) approve, endorse, recommend, or execute or enter into any letter of intent, agreement in principle, merger agreement, acquisition agreement or other similar agreement relating to an Acquisition Proposal or any proposal or offer that could reasonably be expected to lead to an Acquisition Proposal (any of which individually, or collectively, an “Acquisition Agreement”), or that contradicts this Agreement or requires the Company to abandon this Agreement; or
(v) resolve, propose or agree to do any of the provisions of this Section 5.3) or negotiations regarding, or furnish to any Person any information in connection with, any Takeover Proposalforegoing.
(b) Notwithstanding anything to the contrary contained in this AgreementSection 6.3(a), if at any time prior to obtaining the Company Shareholder Approval, the Company or any of its SubsidiariesRepresentatives receives a written Acquisition Proposal from any Third Party that the Company Board, or any of its or their respective Representatives receives an unsolicited bona fide written Takeover Proposal made after the date of this Agreement, the Company, the Company Board (or a duly authorized committee thereof) and the Company’s Representatives may engage in negotiations and discussions with, or furnish any information and other access to, any Person making such Takeover Proposal and any of its Representatives or potential sources of financing if the Company Board reasonably determines in good faith, faith based on the information available and after consultation with the Company’s outside legal and financial advisors, that such Takeover Proposal constitutes or is or could reasonably be expected likely to lead to result in a Superior Proposal; provided that prior to engaging in any negotiations or discussions with, and if the Company Board, or furnishing any information to, any such Person or its Representatives, the Company and the Person making such Takeover Proposal shall have entered into an Acceptable Confidentiality Agreement. The Company will promptly (and in any event within the later of twenty-four (24) hours or 5:00 p.m. New York City time on the next Business Day) notify Parent in writing of the receipt of such Takeover Proposal, the material terms and conditions of any such Takeover Proposal and the identity of the Person making such Takeover Proposal. The Company will keep Parent informed in all material respects on a prompt basis (and in any event within the later of twenty-four (24) hours or 5:00 p.m. New York City time on the next Business Day) of the material terms and status of such Takeover Proposal (including any change in the price or any other material terms thereof). The Company shall not terminate, amend, modify, waive or fail to enforce any provision of any “standstill” or similar obligation of any Person unless the Company Board (or a duly authorized committee thereof) , determines in good faith, faith after consultation with its outside legal counsel, and financial advisors that the failure to take such action any of the following actions would be reasonably be expected likely to be inconsistent with violate its fiduciary duties to the holders of the Company Common Stock under applicable Law, then: (i) the Company and its Representatives may furnish, pursuant to an Acceptable Confidentiality Agreement, information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group of Persons who has made such Acquisition Proposal; provided that the Company shall promptly provide to Parent any material non-public information concerning the Company or any of its 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 Acquisition Proposal. Prior to taking any of the actions referred to in this Section 6.3(b), the Company shall notify Parent and Merger Sub that it proposes to furnish non-public information and/or enter into discussions or negotiations as provided in this Section 6.3(b). Without modifying the generality of the foregoing, in making such determinations the Company Board, or any committee thereof, shall take into consideration such factors it deems necessary and appropriate to fulfill its fiduciary duties to the holders of the Company Common Stock under applicable Law.
(c) The Company shall notify Parent as soon as practicable (but in any event within twenty-four (24) hours) after the receipt by the Company or any of its Representatives of any Acquisition Proposal and any material modification or amendment to an Acquisition Proposal. Such notice shall be made in writing and shall indicate in reasonable detail the identity of the party making such Acquisition Proposal and the material terms and conditions of such Acquisition Proposal (including, if applicable, copies of any written requests, proposals or offers, including proposed agreements), and the Company shall continue to keep Parent reasonably informed on a current basis of the status of any such Acquisition Proposal and any material changes thereto. The Company shall provide to Parent copies of all correspondence and other written material sent or provided to the Company or any of its Representatives relating to any such material developments, discussions or negotiations.
(d) The Company will, and will cause each of its Subsidiaries and Representatives to, cease immediately and cause to be terminated all discussions or negotiations with any Persons (other than Parent and its Affiliates) conducted prior to the date hereof with respect to any Acquisition Proposal.
(e) Except as otherwise expressly provided in this Agreementby Section 6.3(f), at any time after the date hereof, neither the Company Board nor any committee thereof shall shall:
(i)(Ai) withdraw(A) withhold, changewithdraw (or not continue to make), qualify, withhold qualify or modify, modify (or publicly propose or resolve to withdrawwithhold, changewithdraw (or not continue to make), qualify, withhold qualify or modify), in a manner adverse to ParentParent or Merger Sub, the Company Board Recommendation, (B) adopt, approve or recommend, recommend or publicly propose to adopt, approve or recommend, any Takeover Proposalrecommend (publicly or otherwise) an Acquisition Proposal from a Third Party, (C) fail to include in the Proxy Statement publicly reaffirm the Company Board RecommendationRecommendation within two (2) Business Days after Parent so requests in writing, (D) fail to recommend against any Takeover Acquisition Proposal from a Third Party subject to Regulation 14D under the Exchange Act in any solicitation or recommendation statement made a Solicitation/Recommendation Statement on Schedule 14D-9 within ten (10) Business Days after Parent so requests reaffirmation in writing (provided, that Parent shall be entitled to make the commencement of such a written request for reaffirmation only once for each Takeover Acquisition Proposal and once for each material amendment to such Takeover Proposal), or (E) resolve or publicly propose fail to do any of include the foregoing Company Recommendation in the Proxy Statement (any action described in this clause clauses (iA) being referred to herein as through (E), a “Company Adverse Recommendation ChangeChange of Recommendation”) or ); or
(ii) cause or permit the Company or any of its Affiliates Subsidiaries to execute or enter into, into any letter of intent, memorandum of understanding, agreement in principle, agreement or commitment (other than an Acceptable Confidentiality Agreement) constituting, or that would reasonably be expected Acquisition Agreement relating to lead to, any Takeover Acquisition Proposal (from a “Company Acquisition Agreement”)Third Party.
(df) Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Company Shareholder Approval, the Company Board (or a duly authorized committee thereof) may make a Company Adverse Recommendation Change (and, solely with respect to a Superior Proposal, terminate this Agreement pursuant to Section 7.1(d)(ii)), if (i) (A) a Company Intervening Event has occurred or (B) the Company has received a Superior an Acquisition Proposal other than as a result of a breach of this Section 5.3 (other than immaterial breach), in each case, if from any Person that is not withdrawn and that the Company Board (or a duly authorized committee thereof) determines concludes in good faith, faith (after consultation with its outside legal counseland financial advisors) constitutes a Superior Proposal, that (x) the failure Company Board may effect a Change of Recommendation with respect to make a Company Adverse Recommendation Change as a result of the occurrence of such Company Intervening Event or in response to the receipt of such Superior Proposal, as or (y) the case Company Board may beauthorize the Company to terminate this Agreement to enter into an Acquisition Agreement with respect to such Superior Proposal, if and only if:
(i) that failure to take such action would or would reasonably be expected likely to be inconsistent with its violate the directors’ fiduciary duties under applicable Law and Law;
(ii) neither the Company nor any of its Subsidiaries or, acting on the Company’s behalf pursuant to its instructions, its Representatives, will have violated this Section 6.3;
(iii) (A) the Company provides Parent shall have provided prior written notice of its intent to make any Company Adverse Recommendation Change or terminate this Agreement pursuant to Section 7.1(d)(ii) Parent at least four three (43) Business Days prior to taking such action in advance (the “Notice Period”), to the effect thatthat the Company Board has received an Acquisition Proposal that is not withdrawn and that the Company Board concludes in good faith constitutes a Superior Proposal and, absent any modification revision to the terms and conditions of this Agreement, the Company Board has resolved to effect a Company Adverse Change of Recommendation Change or and/or to terminate this Agreement pursuant to Section 7.1(d)(ii8.1(g), which notice shall specify the basis for such Company Adverse Change of Recommendation Change or termination and attaching termination, including the most current draft identity of any Company Acquisition Agreement with respect to, the party making the Superior Proposal (orProposal, if no such draft exists, a summary of the material terms thereof and conditions copies of all relevant documents relating to such Superior Proposal), if applicable ;
(a “Notice iv) prior to effecting such Change of Recommendation Change”) (it being understood that such Notice of Recommendation Change shall not in itself be deemed a Company Adverse Recommendation Change and that any change in price or material revision or amendment to the terms of a Superior Proposal, if applicable, shall require a new notice to which the provisions of clauses (ii)(A), (B) and (C) of this Section 5.3(d) shall apply mutatis mutandis except that, in the case of such a new notice, all references to four (4) Business Days in this Section 5.3(d) shall be deemed to be two (2) Business Days); (B) during such four (4) Business Day period, if requested by ParentRecommendation, the Company shall, and shall make cause its Representatives available to financial and legal advisors to, during the Notice Period, (1) negotiate in good faith with Parent and its Representatives regarding any modifications representatives in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement Agreement, so that Parent proposes such Acquisition Proposal would cease to make; constitute a Superior Proposal, and (C2) at the end of such four (4) Business Day period permit Parent and taking into account any modifications its representatives to make a presentation to the terms of Company Board regarding this Agreement proposed by Parent, if any, and any adjustments with respect thereto (to the extent Parent desires to make such presentation); provided that in the event of any material revisions to the Acquisition Proposal that the Company Board has determined to be a written, binding and irrevocable offerSuperior Proposal, the Company Board determines in good faith shall be required to deliver a new written notice to Parent and to comply with the requirements of this Section 6.3(f) (after consultation including this Section 6.3(f)(v)) with outside legal counselrespect to such new written notice; and
(v) that the failure to make such a Company Adverse Recommendation Change would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, and that, in the case of a any action described in Section 6.3(f)(y), the Company Adverse Recommendation Change with respect to a Takeover Proposal, such Takeover Proposal still constitutes a Superior Proposal.
(e) Nothing contained in shall have validly terminated this Agreement shall prohibit in accordance with Section 8.1(g), including the Company or the Company Board (or a duly authorized committee thereof) from (i) taking and disclosing to the shareholders payment of the Company a position contemplated by Rule 14e-2(a) under the Exchange Act or making a statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9 under the Exchange Act, (ii) making any disclosure to the shareholders of the Company if the Company Board (or a duly authorized committee thereof) determines Termination Fee in good faith, after consultation accordance with its outside legal counsel, that the failure to make such disclosure would be reasonably likely to be inconsistent with applicable Law, (iii) informing any Person of the existence of the provisions contained in this Section 5.3 or (iv) making any “stop, look and listen” communication to the shareholders of the Company pursuant to Rule 14d-9(f) under the Exchange Act8.2(b).
(f) As used in this Agreement, “Takeover Proposal” shall mean any inquiry, proposal or offer (whether or not in writing) from any Person (other than Parent, Merger Sub and any of its Affiliates thereof) to purchase or otherwise acquire, directly or indirectly, in a single transaction or series of related transactions, (a) assets of the Company and its Subsidiaries (including securities of Subsidiaries) that account for 15% or more of the Company’s consolidated assets or from which 15% or more of the Company’s revenues or earnings on a consolidated basis are derived or (b) 15% or more of the outstanding Company Common Stock pursuant to a merger, consolidation or other business combination, sale or issuance of shares of capital stock, tender offer, share exchange, other business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company, in each case other than the Merger.
Appears in 1 contract
Samples: Merger Agreement (Mediware Information Systems Inc)
No Solicitation; Change in Recommendation. (a) The Company agrees that it shall, and shall cause its Subsidiaries and its and its Subsidiaries’ their respective directors, officers and employees to, and shall direct and use its reasonable best efforts to cause its and its Subsidiaries respective other Representatives to, immediately cease and cause to be terminated any and all existing discussions or negotiations with any Person and its Representatives conducted heretofore with respect to any Takeover Proposal, immediately Proposal and shall promptly request the prompt return or destruction of all confidential information previously furnished and immediately terminate all physical and electronic data room access previously granted to that any such Person or (and its Representatives) in possession of confidential information heretofore furnished by or on behalf of the Company or any of its Subsidiaries (and all analyses and other materials prepared by or on behalf of such Person that contains, reflects or analyzes that information) to return or destroy all such information as promptly as reasonably practicable and in accordance with the terms of any confidentiality or similar agreement in place with such Person. Except as otherwise provided in this Agreement, At all times from the date of this Agreement until the earlier of the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 7.1, the Company shall not, and shall cause its Subsidiaries and its and its Subsidiaries’ their respective directors, officers and employees not to, and shall direct and use its reasonable best efforts to cause its and its Subsidiaries’ respective other Representatives not to, directly or indirectly, (i) solicit, initiate, knowingly initiate or take any action to encourage or knowingly facilitate (including by way of furnishing information) any inquiries or the submission of any proposal that constitutes any Takeover Proposal or the making or consummation thereof or thereof; (ii) enter into, continue or otherwise participate in any discussions (except to notify such Person of the existence of the provisions of this Section 5.3) or negotiations regarding, or furnish to any Person any information or data relating to, afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries in connection with, or for the purpose of encouraging or facilitating, any Takeover Proposal; (iii) approve any transaction under, or any Person becoming an “interested stockholder” under, Section 203 of the DGCL, or (iv) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument providing for a Takeover Proposal.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time prior to obtaining the Company Stockholder Approval, the Company or any of its Subsidiaries, or any of its or their respective Representatives Representatives, receives an unsolicited bona fide written Takeover Proposal made after the date hereof in circumstances not involving a material breach of this AgreementSection 5.3, the Company, the Company Board (or a duly authorized committee thereof) and the Company’s their Representatives may at any time prior to the receipt of the Company Stockholder Approval engage in negotiations and discussions with, or furnish any information and other access to, any Person making such Takeover Proposal and any of its Representatives or potential sources of financing if the Company Board reasonably determines in good faith, after consultation with the Company’s outside legal and financial advisors, that such Takeover Proposal is or could reasonably be expected to lead to a Superior ProposalProposal and with respect to which the Company Board reasonably determines in good faith, after consultation with the Company’s outside legal advisors, that the failure to take such action would reasonably be expected to be inconsistent with the fiduciary duties of the Company Board under applicable law; provided that (i) at least forty-eight (48) hours prior to engaging in entering into such negotiations or discussions with or furnishing any such information or access to, any such Person, the Company provides written notice to Parent of the identity of such Person and of the Company’s intention to enter into negotiations or discussions with, or furnishing any furnish information toor other access to such Person, any such Person or its Representatives, and the Company and receives from the Person making such Takeover Proposal shall have entered into an Acceptable Confidentiality Agreement, and (ii) the Company concurrently furnishes all such written information and access, and a summary of all such material non-written information, provided to such Person to Parent (to the extent such information or access has not been previously furnished or made available by the Company to Parent or Parent’s Representatives). The Company shall provide Parent with an accurate and complete copy of any Acceptable Confidentiality Agreement entered into pursuant to this Section 5.3(b) within forty-eight (48) hours of execution thereof. The Company will promptly (and in any event within the no later of twentythan forty-four eight (2448) hours or 5:00 p.m. New York City time on the next Business Dayafter receipt thereof) notify Parent Parent, in writing writing, of the receipt of such Takeover Proposal, or any inquiry, proposal or offer that expressly provides for or could reasonably be expected to lead to a Takeover Proposal, and shall, in any such notice to Parent, identify the Person making such Takeover Proposal, inquiry, proposal or offer, communicate the material terms and conditions of such Takeover Proposal, inquiry, proposal or offer (including any subsequent material amendment or other modification to such terms and conditions) and provide to Parent copies of any written materials received from or on behalf of such Person relating to such inquiry, proposal or offer. The Company will (i) keep Parent reasonably and promptly apprised of the status and terms of any such Takeover Proposal Proposal, inquiry, proposal or offer and regarding the identity status of any discussions or negotiations with the Person making such Takeover Proposal. The Company will keep , inquiry, proposal or offer or any of its Representatives and (ii) provide Parent informed in all with copies of any material respects on a prompt basis additional written materials received that relate to such Takeover Proposal, inquiry, proposal or offer within forty-eight (and in any event within the later of twenty-four (2448) hours after receipt or 5:00 p.m. New York City time on the next Business Day) of the material terms and status of such Takeover Proposal (including any change in the price or any other material terms delivery thereof). The Company shall not terminate, amend, modify, waive or fail to enforce any (i) material provision of an Acceptable Confidentiality Agreement entered into pursuant to this Section 5.3(b) or (ii) provision of any “standstill” or similar obligation of any Person unless unless, in the case of either clause (i) or clause (ii), the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Lawlaw; provided that, with respect to any “standstill” or similar obligation, upon such termination, amendment, modification, waiver or failure to enforce, the Company shall, simultaneously and on substantially the same terms, terminate, amend, modify, waive or fail to enforce any corresponding provision of any “standstill” or similar obligation of Parent.
(c) Except as otherwise expressly provided in this Agreement, neither the Company Board nor any committee thereof shall not (i)(A) withhold, fail to include in (or remove from) the Proxy Statement, withdraw, change, qualify, withhold qualify or modify, or publicly propose or resolve to withhold, fail to include in (or remove from) the Proxy Statement, withdraw, change, qualify, withhold qualify or modify, in a manner adverse to Parent, the Company Board Recommendation, (B) adopt, approve or recommend, or publicly propose to adopt, approve or recommendrecommend to the stockholders of the Company, any a Takeover Proposal, or (C) at any time after receipt or public announcement of a Takeover Proposal, fail to include in the Proxy Statement reaffirm the Company Board Recommendation, Recommendation within five (D) fail to recommend against any Takeover Proposal subject to Regulation 14D under the Exchange Act in any solicitation or recommendation statement made on Schedule 14D-9 within ten (105) Business Days after Parent so requests reaffirmation in writing (provided, that Parent shall be entitled to make such a receipt of any written request for reaffirmation only once for each Takeover Proposal and once for each material amendment to such Takeover Proposal), or (E) resolve or publicly propose to do any so by Parent (but, if the End Date is fewer than five (5) Business Days after the Company’s receipt of such request, by the foregoing close of business on the Business Day immediately preceding the End Date) (any action described in this clause (i) being referred to herein as a “Company Adverse Recommendation Change”) ); or (ii) cause adopt, approve, recommend, submit to the stockholders of the Company or permit declare advisable, or publicly propose or resolve to adopt, approve, recommend, submit to the stockholders of the Company or declare advisable), or allow the Company or any of its Affiliates Subsidiaries to execute or enter into, into any letter of intent, memorandum of understandingmerger agreement, agreement in principle, agreement letter of intent or commitment other similar Contract providing for a Takeover Proposal (any such Contract, an “Alternative Acquisition Agreement”), other than an Acceptable Confidentiality AgreementAgreement referred to in Section 5.3(b) constituting, or that would reasonably entered into in compliance with Section 5.3(b). Parent shall be expected entitled to lead to, any make a written request for reaffirmation of the type contemplated by Section 5.3(c)(i)(C) up to two (2) times in respect of each Takeover Proposal received by the Company and up to two (2) additional times in respect of each material revision or amendment to the terms of such Takeover Proposal. Parent shall not be entitled to make such a “written request for reaffirmation if Parent has received from the Company Acquisition Agreement”)a Change of Recommendation Notice and the applicable Notice Period with respect to such Change of Recommendation Notice has not ended.
(d) Notwithstanding anything to the contrary in foregoing provisions of this AgreementSection 5.3, if at any time prior to obtaining receipt of Company Stockholder Approval the Company Shareholder Approvalreceives a Takeover Proposal or an Intervening Event occurs, the Company Board (or a duly authorized committee thereof) may make a Company Adverse Recommendation Change (and, solely with respect to a Superior Proposal, terminate this Agreement pursuant to Section 7.1(d)(ii)), if if, (i) (A) a Company Intervening Event has occurred or (B) the Company has received a Superior Proposal other than as a result of a is not in material breach of this Section 5.3 5.3; (other than immaterial breach), in each case, if ii) the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure to make a Company Adverse Recommendation Change as a result of the occurrence of take such Company Intervening Event or in response to the receipt of such Superior Proposal, as the case may be, action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law law; (iii) if such Company Adverse Recommendation Change or termination of this Agreement pursuant to Section 7.1(d)(ii) is to be taken in circumstances involving or relating to a Takeover Proposal, the Company Board determines in good faith, after consultation with its outside legal and financial advisors, that such Takeover Proposal is a Superior Proposal; (iiiv) (A) the Company provides Parent prior written notice of its intent to make any such Company Adverse Recommendation Change or terminate this Agreement pursuant to Section 7.1(d)(ii) at least four (4) Business Days (the “Notice Period”) prior to taking such action to the effect that, absent any modification to the terms and conditions (a “Change of this Agreement, the Company Board has resolved to effect a Company Adverse Recommendation Change or to terminate this Agreement pursuant to Section 7.1(d)(iiNotice”), which notice shall specify the basis for such Company Adverse Recommendation Change or termination and attaching termination, including (I) in the case of any action intended to be taken in circumstances involving or relating to a Takeover Proposal, the material terms of such Takeover Proposal, including the most current draft version of the proposed agreement under which the Takeover Proposal is proposed to be consummated and the identity of the Person making the Takeover Proposal, or (II) in the case of any Company Acquisition Agreement with respect to, the Superior Proposal (or, if no such draft existsaction intended to be taken in circumstances involving or relating to an Intervening Event, a summary reasonably detailed description of the material terms and conditions of Intervening Event giving rise to such Superior Proposal), if applicable (a “Notice of Recommendation Change”) action (it being understood that such Notice Change of Recommendation Change Notice shall not in itself be deemed a Company Adverse Recommendation Change and that any change in price or material revision or amendment to the terms of a Superior Proposal, if applicable, any Takeover Proposal shall require a new notice to which the provisions of clauses (ii)(A), (B) and (C) of this Section 5.3(d) shall apply mutatis mutandis except thatand, in such case, the case of such a new notice, all references to four (4) Business Days in this Section 5.3(d) Notice Period shall be deemed to be two (2) Business Days); (B) during such four the period described in clause (4) Business Day period, if requested by ParentA), the Company shall make have made its Representatives reasonably available to negotiate in good faith discuss with Parent and its Parent’s Representatives regarding any proposed modifications to the terms and conditions of this Agreement that Agreement, and the Company shall have, if required by Parent, negotiated in good faith with Parent proposes with respect to makesuch proposed modifications; and (C) at Parent has not, within the end Notice Period, made a bona fide offer capable of being accepted by the Company to modify the terms or conditions of this Agreement or any other proposal such four that (4I) Business Day period and in the case of any action intended to be taken in circumstances involving or relating to a Takeover Proposal, the Company Board, after taking into account any modifications to the terms of this Agreement proposed and the Merger agreed to by ParentParent and Merger Sub and after consultation with its outside legal and financial advisors, if any, continues to believe in good faith that such Takeover Proposal constitutes a written, binding Superior Proposal and irrevocable offer, the Company Board determines in good faith (after consultation with outside legal counsel) that the failure to make such a Company Adverse Recommendation Change or terminate this Agreement pursuant to Section 7.1(d)(ii) would reasonably be expected to be inconsistent with its the fiduciary duties of the Company Board under applicable Law, and that, law or (II) in the case of any action intended to be taken in circumstances involving or relating to an Intervening Event, the Company Board, after taking into account any modifications to the terms of this Agreement and the Merger agreed to by Parent and Merger Sub and after consultation with its outside legal and financial advisors, determines in good faith that the failure to make a Company Adverse Recommendation Change or terminate this Agreement pursuant to Section 7.1(d)(ii) would reasonably be expected to be inconsistent with respect to a Takeover Proposal, such Takeover Proposal still constitutes a Superior Proposalthe fiduciary duties of the Company Board under applicable law.
(e) Nothing contained in this Agreement shall prohibit the Company or the Company Board (or a duly authorized committee thereof) from (i) taking and disclosing to the shareholders stockholders of the Company a position contemplated by Rule 14e-2(a) under the Exchange Act or making a statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9 under the Exchange Act, (ii) making any disclosure to the shareholders stockholders of the Company with respect to a Takeover Proposal or an Intervening Event if the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure to make such disclosure would reasonably be reasonably likely expected to be inconsistent with its fiduciary duties under applicable Lawlaw, (iii) informing any Person of the existence of the provisions contained in this Section 5.3 or (iv) making any “stop, look and listen” communication to the shareholders stockholders of the Company pursuant to Rule 14d-9(f) under the Exchange ActAct (or any similar communication to the stockholders of the Company); provided that the foregoing shall in no way eliminate or modify the effect that any such disclosure or communication would otherwise have under this Agreement. Any disclosure made pursuant to this Section 5.3(e) (other than that described in clause (iii) or (iv) hereof) shall be deemed to be a Company Adverse Recommendation Change unless the Company Board, if Parent so requests in writing, reaffirms the Company Board Recommendation in such disclosure.
(f) As used in this Agreement, “Takeover Proposal” shall mean any bona fide inquiry, proposal or offer (whether or not in writing) from any Person (other than Parent, Merger Sub and any of its Affiliates thereoftheir Affiliates) to purchase or otherwise acquire, directly or indirectly, in a single transaction or series of related transactions, including by way of any merger, consolidation, tender offer, exchange offer, stock acquisition, asset acquisition, share exchange, reorganization, recapitalization, liquidation, business combination, dissolution, joint venture, license or similar transaction, (ai) assets of the Company and its Subsidiaries (including securities of Subsidiaries) that account for 15% or more of the Company’s and its Subsidiaries’ consolidated assets or from which 15% or more of the Company’s revenues or earnings on a consolidated basis are derived or derived, (bii) 15% or more of the outstanding shares of Company Common Stock pursuant to a mergeror any other class of capital stock of, consolidation or other business combinationequity or voting interests in, sale the Company or issuance of shares of capital stock, tender offer, share exchange, other business combination, recapitalization, liquidation, dissolution or similar transaction involving the Companyany if its Subsidiaries which, in each case other than the Mergeraggregate, directly or indirectly hold the assets referred to in clause (i) above or (iii) any combination of the foregoing.
Appears in 1 contract
No Solicitation; Change in Recommendation. (a) The Company agrees that it shall, and shall cause its Subsidiaries and its and its Subsidiaries’ Subsidiaries respective directors, officers and employees to, and shall use its reasonable best efforts to cause its other Representatives to, immediately cease all existing discussions or negotiations with any Person conducted heretofore with respect to any Takeover Proposal, immediately request the prompt return or destruction of all confidential information previously furnished and immediately terminate all physical and electronic data room access previously granted to any such Person or its Representatives. Except as otherwise provided in this Agreement, from the date of this Agreement until the earlier of the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 7.1, the Company shall not, and shall cause its Subsidiaries and its and its Subsidiaries’ Subsidiaries respective directors, officers and employees not to, and shall use its reasonable best efforts to cause its other Representatives not to, directly or indirectly, (i) solicit, initiate, knowingly encourage or knowingly facilitate any Takeover Proposal or the making or consummation thereof or (ii) enter into, or otherwise participate in any discussions (except to notify such Person of the existence of the provisions of this Section 5.3) or negotiations regarding, or furnish to any Person any material non-public information in connection with, any Takeover Proposal.
(b) Notwithstanding anything to the contrary contained in this Agreement, if the Company or any of its Subsidiaries, or any of its or their respective Representatives Representatives, receives an unsolicited bona fide written Takeover Proposal made after the date of this AgreementAgreement and prior to the receipt of the Company Shareholder Approval, the Company, the Company Board (or a duly authorized committee thereof) and the Company’s Representatives may engage in negotiations and discussions with, or furnish any information and other access to, any Person making such Takeover Proposal and any of its Representatives or potential sources of financing if the Company Board determines in good faith, after consultation with the Company’s outside legal and financial advisors, that such Takeover Proposal is or could reasonably be expected to lead to a Superior ProposalProposal and that failure to take such actions would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law; provided that prior to engaging in any negotiations or discussions with, or furnishing any material non-public information to, any such Person or its Representatives, the Company and the Person making such Takeover Proposal shall have entered into an Acceptable Confidentiality Agreement. The Company will promptly (and in any event within the later of twenty-four (24) hours or and 5:00 p.m. New York City Pacific time on the next Business Day) notify Parent in writing of the receipt of such Takeover Proposal, Proposal and the material terms and conditions of any such Takeover Proposal and Proposal, including the identity of the Person making such Takeover Proposal. The Company will keep Parent promptly informed in all material respects on a prompt basis (and in any event within the later of twenty-four (24) hours or and 5:00 p.m. New York City Pacific time on the next Business Day) of the material terms and status of communications relating to such Takeover Proposal (including any change in the price or any other material terms thereof). The Company shall not terminate, amend, modify, waive or fail to enforce any provision of any “standstill” or similar obligation of any Person unless the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law.
(c) Except as otherwise provided in this Agreement, neither the Company Board nor any committee thereof shall (i)(A) withdraw, change, qualify, withhold or modifymodify in a manner adverse to Parent, or publicly propose to withdraw, change, qualify, withhold or modify, modify in a manner adverse to Parent, the Company Board Recommendation, (B) adopt, approve or recommend, or publicly propose to adopt, approve or recommend, any Takeover Proposal, (C) fail to include the Company Board Recommendation in the Proxy Statement the Company Board Recommendation, or (D) fail to recommend against any in the event a tender offer that constitutes a Takeover Proposal subject to Regulation 14D under the Exchange Act is commenced, fail to recommend against such Takeover Proposal in any solicitation or recommendation statement made on Schedule 14D-9 within ten (10) Business Days after Parent so requests reaffirmation in writing (provided, provided that Parent shall be entitled to make such a written request for reaffirmation only once for each Takeover Proposal and once for each material amendment to such Takeover Proposal), or (E) resolve or publicly propose to do any of the foregoing (any action described in this clause (i) being referred to herein as a “Company Adverse Recommendation Change”) or (ii) cause or permit the Company or any of its Affiliates to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, agreement or commitment (other than an Acceptable Confidentiality Agreement) constituting, or that would reasonably be expected to lead to, any to a Takeover Proposal (a “Company Acquisition Agreement”).
(d) Notwithstanding anything to the contrary in this Agreement, :
(i) at any time prior to obtaining the Company Shareholder Approval, the Company Board (or a duly authorized committee thereof) may make a Company Adverse Recommendation Change (and, solely with respect to a Superior Proposal, terminate this Agreement pursuant to Section 7.1(d)(ii)), if (i) (A) a Company Intervening Event has occurred or (B) the Company has received a Superior Proposal other than as a result of a breach of this Section 5.3 (other than an immaterial breach), in each casethe Company Board (or a duly authorized committee thereof) may make a Company Adverse Recommendation Change and, solely with respect to a Superior Proposal, terminate this Agreement pursuant to Section 7.1(d)(ii), if (A) the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure to make a Company Adverse Recommendation Change as a result of the occurrence of such Company Intervening Event or in response to the receipt of such Superior Proposal, as the case may be, Proposal would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law and (iiB) (A1) the Company provides Parent prior written notice of its intent to make any a Company Adverse Recommendation Change or and terminate this Agreement pursuant to Section 7.1(d)(ii) at least four (4) Business Days prior to taking such action to the effect that, absent any modification to the terms and conditions of this Agreement, the Company Board has resolved to effect a Company Adverse Recommendation Change or and to terminate this Agreement pursuant to Section 7.1(d)(ii), which notice shall specify the basis for such Company Adverse Recommendation Change or termination and attaching attach the most current draft of any Company Acquisition Agreement with respect to, to the Superior Proposal (or, if no such draft exists, a written summary of the material terms and conditions of such Superior Proposal), if applicable ) (a “Notice of Superior Proposal Recommendation Change”) (it being understood that such Notice of Superior Proposal Recommendation Change shall not in itself be deemed a Company Adverse Recommendation Change and that any change in price or material revision or amendment to the terms of a such Superior Proposal, if applicable, Proposal shall require a new notice to which the provisions of clauses (ii)(AB)(1), (B2) and (C3) of this Section 5.3(d5.3(d)(i) shall apply mutatis mutandis except that, in the case of such a new notice, all references to four (4) Business Days in this Section 5.3(d5.3(d)(i) shall be deemed to be two three (23) Business Days); (B2) during such four (4) Business Day periodperiod following Parent’s receipt of the Notice of Superior Proposal Recommendation Change, if requested by Parent, the Company shall make its Representatives reasonably available to negotiate in good faith with Parent and its Representatives regarding any modifications to the terms and conditions of this Agreement that Parent proposes to make; and (C3) at the end of such four (4) Business Day period and taking into account any modifications to the terms of this Agreement proposed by Parent to the Company in a written, binding and irrevocable offer, the Company Board determines in good faith (after consultation with outside legal counsel) that the failure to make such a Company Adverse Recommendation Change would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law and that such Takeover Proposal still constitutes a Superior Proposal; and
(ii) at any time prior to obtaining the Company Shareholder Approval, the Company Board (or a duly authorized committee thereof) may make a Company Adverse Recommendation Change in response to the occurrence of a Company Intervening Event if (A) the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure to make a Company Adverse Recommendation Change as a result of the occurrence of such Company Intervening Event would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law and (B) (1) the Company provides Parent prior written notice of its intent to make a Company Adverse Recommendation Change at least four (4) Business Days prior to taking such action to the effect that, absent any modification to the terms and conditions of this Agreement, the Company Board has resolved to effect a Company Adverse Recommendation Change, which notice shall describe in reasonable detail the Company Intervening Event that is the basis for such Company Adverse Recommendation Change (a “Notice of Intervening Event Recommendation Change”) (it being understood that such Notice of Intervening Event Recommendation Change shall not in itself be deemed a Company Adverse Recommendation Change); (2) during such four (4) Business Day period following Parent’s receipt of the Notice of Intervening Event Recommendation Change, if requested by Parent, if any, the Company shall make its Representatives reasonably available to negotiate in good faith with Parent and its Representatives regarding any modifications to the terms and conditions of this Agreement that Parent proposes to make; and (3) at the end of such four (4) Business Day period and taking into account any modifications to the terms of this Agreement proposed by Parent to the Company in a written, binding and irrevocable offer, the Company Board determines in good faith (after consultation with outside legal counsel) that the failure to make such a Company Adverse Recommendation Change would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, and that, in the case of a Company Adverse Recommendation Change with respect to a Takeover Proposal, such Takeover Proposal still constitutes a Superior Proposal.
(e) Nothing contained in this Agreement shall prohibit the Company or the Company Board (or a duly authorized committee thereof) from (i) taking and disclosing to the shareholders of the Company a position contemplated by Rule 14e-2(a) under the Exchange Act or making a statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9 under the Exchange Act, (ii) making any disclosure to the shareholders of the Company if the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure to make such disclosure would be reasonably likely to be inconsistent with applicable Law, (iii) informing any Person of the existence of the provisions contained in this Section 5.3 or (iv) making any “stop, look and listen” communication to the shareholders of the Company pursuant to Rule 14d-9(f) under the Exchange ActAct (or any similar communication to the shareholders of the Company). No disclosures under this Section 5.3(e) shall be, in themselves, a breach of Section 5.3 or a basis for Parent to terminate this Agreement pursuant to Article VII.
(f) As used in this Agreement, “Takeover Proposal” shall mean any bona fide inquiry, proposal or offer (whether or not in writing) from any Person (other than Parent, US Parent, Merger Sub and or any of its Affiliates thereoftheir respective Affiliates) to purchase or otherwise acquire, directly or indirectly, in a single transaction or series of related transactions, (ai) assets of the Company and its Subsidiaries (including securities of Subsidiaries) that account for 15% or more of the Company’s consolidated assets or from which 15% or more of the Company’s revenues or earnings on a consolidated basis are derived or (bii) 15% or more of the outstanding Company Common Stock pursuant to a merger, consolidation or other business combination, sale or issuance of shares of capital stock, tender offer, share exchange, other business combination, recapitalization, liquidation, dissolution recapitalization or similar transaction involving the Company, in each case other than the Merger;
(g) As used in this Agreement, “Superior Proposal” shall mean any unsolicited written Takeover Proposal on terms which the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with the Company’s outside legal counsel and independent financial advisors, to be more favorable to the holders of Company Common Stock than the Transactions (as may be revised pursuant to Section 5.3(d)(i)), taking into account, to the extent applicable, the legal, financial, regulatory and other aspects of such proposal and this Agreement that the Company Board considers relevant, including the prospects for receipt of any required regulatory approvals and taking into account the agreements set forth in Section 1.6(a), Section 1.7 and Exhibit B attached hereto with respect to the Transactions; provided that for purposes of the definition of Superior Proposal, the references to “15%” in the definition of Takeover Proposal shall be deemed to be references to “50%.”
Appears in 1 contract
Samples: Merger Agreement
No Solicitation; Change in Recommendation. (a) The Company agrees that it shall, and shall cause its Subsidiaries and its and its Subsidiaries’ directors, officers and employees to, and shall use its reasonable best efforts to cause its other Representatives to, immediately cease all existing discussions or negotiations with any Person conducted heretofore with respect to any Takeover Proposal, immediately request the prompt return or destruction of all confidential information previously furnished and immediately terminate all physical and electronic data room access previously granted to any such Person or its Representatives. Except as otherwise provided in expressly permitted by this AgreementSection 5.4, from and after the date of this Agreement until the earlier of the Effective Time or and the date, if any, on which termination of this Agreement is terminated pursuant to Section 7.1in accordance with Article VII, (x) the Company shall not, and shall cause each of its Subsidiaries not to, and its and their respective employees, officers and directors not to, and (y) the Company shall use its reasonable best efforts to cause each of its and its Subsidiaries’ respective investment bankers, attorneys, accountants and other advisors, agents and representatives (a Person’s employees, directors, officers, investment bankers, attorneys, accountants, other advisors, agents and representatives, collectively, “Representatives”) not to (i) directly or indirectly, solicit, initiate, knowingly facilitate or encourage (including by means of furnishing non-public Company information) any inquiries, expressions of interest, requests for information, discussions, proposals or offers that constitute, or would reasonably be expected to lead to, an Acquisition Proposal, (ii) provide (including through access to any data room) any non-public information relating to Parent or Merger Sub to any Person relating to an Acquisition Proposal or that would reasonably be expected to lead to an Acquisition Proposal, (iii) enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, share purchase agreement, asset purchase agreement, share exchange agreement, option agreement or other Contract (other than an Acceptable Confidentiality Agreement entered into in accordance with the terms of this Agreement) with respect to an Acquisition Proposal or requiring the Company to abandon, terminate or fail to consummate the transactions contemplated by this Agreement (each, an “Alternative Acquisition Agreement”), (iv) otherwise knowingly facilitate any effort or attempt to make an Acquisition Proposal, (v) terminate, waive, amend, release or modify any provision of, grant permission under, or take any other action having a similar effect with respect to, any standstill, confidentiality or similar agreement to which the Company is a party, except to the extent necessary to allow the counterparty thereof to make a private Acquisition Proposal to the Company Board in accordance with this Agreement, (vi) provide any further information with respect to the Company or any Acquisition Proposal (and shall turn off any data rooms maintained by the Company) to any Persons or their Representatives, or (vii) resolve, propose or agree to do any of the foregoing. The Company shall, and shall cause each of its Subsidiaries to, and its and their respective employees, officers and employees not directors to, and shall use its reasonable best efforts to cause each of its other and its Subsidiaries’ respective Representatives not to, directly or indirectly, (i) solicit, initiate, knowingly encourage or knowingly facilitate immediately cease all discussions and negotiations with any Takeover Proposal or Person initiated and conducted prior to the making or consummation thereof or (ii) enter into, or otherwise participate in any discussions (except to notify such Person of the existence of the provisions of this Section 5.3) or negotiations regarding, or furnish date hereof with respect to any Person any information in connection with, any Takeover Acquisition Proposal.
(b) Notwithstanding anything to the contrary contained in Section 5.4(a) or elsewhere in this Agreement, express or implied, if at any time on or after the date hereof and prior to the Written Consent Effective Time, the Company or any of its Subsidiaries, or any of its or their respective Representatives receives an unsolicited bona fide a written Takeover Acquisition Proposal made after the date from any Person that did not result from a breach of this Agreement, the CompanySection 5.4(a), the Company and its Representatives may contact the Person who made such Acquisition Proposal (and such Person’s Representatives) solely to ascertain facts or clarify terms so that the Company Board (or a duly authorized committee thereof) may become fully informed with respect to the terms and conditions of such Acquisition Proposal and the Company’s Representatives may engage in negotiations Person who submitted the same, and discussions with, or furnish any information and other access to, any Person making such Takeover Proposal and any of its Representatives or potential sources of financing if the Company Board determines in good faith, after consultation (A) After Consultation with the Company’s financial advisor and outside legal and financial advisorscounsel, that such Takeover Acquisition Proposal is constitutes or could would reasonably be expected to lead to a Superior Proposal; provided that prior to engaging in any negotiations or discussions with, or furnishing any information to, any such Person or its Representatives, the Company and the Person making such Takeover Proposal shall have entered into an Acceptable Confidentiality Agreement. The Company will promptly (and in any event within the later of twenty-four (24) hours or 5:00 p.m. New York City time on the next Business Day) notify Parent in writing of the receipt of such Takeover Proposal, the material terms and conditions of any such Takeover Proposal and (B) After Consultation with the identity of the Person making such Takeover Proposal. The Company will keep Parent informed in all material respects on a prompt basis (and in any event within the later of twenty-four (24) hours or 5:00 p.m. New York City time on the next Business Day) of the material terms and status of such Takeover Proposal (including any change in the price or any other material terms thereof). The Company shall not terminate, amend, modify, waive or fail to enforce any provision of any “standstill” or similar obligation of any Person unless the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its Company’s outside legal counsel, that the failure to take such action the actions described in clause (x) or (y) below would reasonably be expected to be inconsistent with its fiduciary the duties of the Company’s directors under applicable Law.
(c) Except as otherwise provided in this Agreement, neither then the Company Board nor any committee thereof shall and its Representatives may (i)(Ax) withdrawfurnish, change, qualify, withhold or modify, or publicly propose pursuant to withdraw, change, qualify, withhold or modify, in a manner adverse to Parent, the Company Board Recommendation, (B) adopt, approve or recommend, or publicly propose to adopt, approve or recommend, any Takeover Proposal, (C) fail to include in the Proxy Statement the Company Board Recommendation, (D) fail to recommend against any Takeover Proposal subject to Regulation 14D under the Exchange Act in any solicitation or recommendation statement made on Schedule 14D-9 within ten (10) Business Days after Parent so requests reaffirmation in writing (provided, that Parent shall be entitled to make such a written request for reaffirmation only once for each Takeover Proposal and once for each material amendment to such Takeover Proposal), or (E) resolve or publicly propose to do any of the foregoing (any action described in this clause (i) being referred to herein as a “Company Adverse Recommendation Change”) or (ii) cause or permit the Company or any of its Affiliates to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, agreement or commitment (other than an Acceptable Confidentiality Agreement, information (including non-public Company information) constitutingto the Person who made such Acquisition Proposal; provided that the Company promptly (and in any event within 48 hours) shall provide to Parent such material non-public information, if such information was not previously provided to Parent or that would reasonably be expected its Representatives, and (y) engage and participate in discussions and negotiations with the Person making such Acquisition Proposal. The Company shall promptly (and in any event within 48 hours) provide to lead toParent to the extent provided to and in the possession of the Company, any Takeover its Subsidiaries or their respective Representatives, a copy of the proposed transaction documents in respect of such Acquisition Proposal (a “Company including any financing commitments relating thereto, but not including any financing fee information). The terms and existence of any such Acquisition Agreement”).
(d) Notwithstanding anything to the contrary in this Agreement, at any time prior to obtaining the Company Shareholder ApprovalProposal, the Company Board (or a duly authorized committee thereof) may make a Company Adverse Recommendation Change (and, solely with respect to a Superior identity of the Person making such Acquisition Proposal, terminate this Agreement and all information provided to Parent pursuant to Section 7.1(d)(ii)), if (i) (A) a Company Intervening Event has occurred or (B) the Company has received a Superior Proposal other than as a result of a breach of this Section 5.3 (other than immaterial breach), in each case, if the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure to make a Company Adverse Recommendation Change as a result of the occurrence of such Company Intervening Event or in response to the receipt of such Superior Proposal, as the case may be, would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law and (ii) (A) the Company provides Parent prior written notice of its intent to make any Company Adverse Recommendation Change or terminate this Agreement pursuant to Section 7.1(d)(ii) at least four (4) Business Days prior to taking such action to the effect that, absent any modification to the terms and conditions of this Agreement, the Company Board has resolved to effect a Company Adverse Recommendation Change or to terminate this Agreement pursuant to Section 7.1(d)(ii), which notice shall specify the basis for such Company Adverse Recommendation Change or termination and attaching the most current draft of any Company Acquisition Agreement with respect to, the Superior Proposal (or, if no such draft exists, a summary of the material terms and conditions of such Superior Proposal), if applicable (a “Notice of Recommendation Change”) (it being understood that such Notice of Recommendation Change shall not in itself be deemed a Company Adverse Recommendation Change and that any change in price or material revision or amendment to the terms of a Superior Proposal, if applicable, shall require a new notice to which the provisions of clauses (ii)(A), (B) and (C) of this Section 5.3(d) shall apply mutatis mutandis except that, in the case of such a new notice, all references to four (4) Business Days in this Section 5.3(d5.4(b) shall be deemed to be two (2) Business Days); (B) during such four (4) Business Day period“Confidential Information” under, if requested by Parent, the Company shall make its Representatives available to negotiate in good faith with Parent and its Representatives regarding any modifications subject to the terms and conditions of this Agreement that Parent proposes to make; and (C) at the end of such four (4) Business Day period and taking into account any modifications to the terms of this Agreement proposed by Parentof, if any, in a written, binding and irrevocable offer, the Company Board determines in good faith (after consultation with outside legal counsel) that the failure to make such a Company Adverse Recommendation Change would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, and that, in the case of a Company Adverse Recommendation Change with respect to a Takeover Proposal, such Takeover Proposal still constitutes a Superior Proposal.
(e) Nothing contained in this Agreement shall prohibit the Company or the Company Board (or a duly authorized committee thereof) from (i) taking and disclosing to the shareholders of the Company a position contemplated by Rule 14e-2(a) under the Exchange Act or making a statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9 under the Exchange Act, (ii) making any disclosure to the shareholders of the Company if the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure to make such disclosure would be reasonably likely to be inconsistent with applicable Law, (iii) informing any Person of the existence of the provisions contained in this Section 5.3 or (iv) making any “stop, look and listen” communication to the shareholders of the Company pursuant to Rule 14d-9(f) under the Exchange Act.
(f) As used in this Agreement, “Takeover Proposal” shall mean any inquiry, proposal or offer (whether or not in writing) from any Person (other than Parent, Merger Sub and any of its Affiliates thereof) to purchase or otherwise acquire, directly or indirectly, in a single transaction or series of related transactions, (a) assets of the Company and its Subsidiaries (including securities of Subsidiaries) that account for 15% or more of the Company’s consolidated assets or from which 15% or more of the Company’s revenues or earnings on a consolidated basis are derived or (b) 15% or more of the outstanding Company Common Stock pursuant to a merger, consolidation or other business combination, sale or issuance of shares of capital stock, tender offer, share exchange, other business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company, in each case other than the Merger.the
Appears in 1 contract
Samples: Merger Agreement (KBS Strategic Opportunity REIT, Inc.)
No Solicitation; Change in Recommendation. (a) The Company agrees that it shall, and shall cause each of its Subsidiaries and its and its Subsidiaries’ directors, officers and employees to, and shall use its reasonable best efforts to cause its other Representatives to, (i) immediately cease all existing any solicitation, encouragement, discussions or negotiations with any Person conducted heretofore persons with respect to any a Takeover Proposal, immediately request the prompt return or destruction of all confidential information previously furnished and immediately terminate all physical and electronic data room access previously granted Proposal that existed prior to any such Person or its Representatives. Except as otherwise provided in this Agreement, from the date of this Agreement and (ii) from the date hereof until the earlier of the Effective Time or the dateTime, if any, on which this Agreement is terminated pursuant to Section 7.1, the Company shall not, and shall cause its Subsidiaries and its and its Subsidiaries’ directors, officers and employees not to, and shall use its reasonable best efforts to cause its other Representatives not to, directly or indirectly, (iA) solicit, initiate, knowingly encourage solicit or knowingly facilitate or encourage (including by way of furnishing non-public information) the making of any Takeover Proposal or the making or consummation thereof or Proposal, (iiB) enter intoengage in, continue or otherwise participate in any discussions (except to notify such Person of the existence of the provisions of this Section 5.3) or negotiations regarding, or furnish to any Person other person any non-public information in connection with, any Takeover Proposal.
(b) Notwithstanding anything in response to or for the contrary contained in this Agreementpurpose of facilitating or encouraging, if the Company or any of its Subsidiaries, or any of its or their respective Representatives receives an unsolicited bona fide written Takeover Proposal made after the date of this Agreement, the Company, the Company Board (or a duly authorized committee thereof) and the Company’s Representatives may engage in negotiations and discussions with, or furnish any information and other access to, any Person making such Takeover Proposal and any of its Representatives or potential sources of financing if the Company Board determines in good faith, after consultation with the Company’s outside legal and financial advisors, that such Takeover Proposal is or could reasonably be expected to lead to a Superior Proposal; provided that prior to engaging in any negotiations or discussions with, or furnishing any information to, any such Person or its Representatives, the Company and the Person making such Takeover Proposal shall have entered into an Acceptable Confidentiality Agreement. The Company will promptly (and in any event within the later of twenty-four (24) hours or 5:00 p.m. New York City time on the next Business Day) notify Parent in writing of the receipt of such Takeover Proposal, the material terms and conditions of any such Takeover Proposal and the identity of the Person making such Takeover Proposal. The Company will keep Parent informed in all material respects on a prompt basis (and in any event within the later of twenty-four (24) hours or 5:00 p.m. New York City time on the next Business Day) of the material terms and status of such Takeover Proposal (including any change in the price or any other material terms thereof). The Company shall not terminate, amend, modify, waive or fail to enforce any provision of any “standstill” or similar obligation of any Person unless the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law.
(c) Except as otherwise provided in this Agreement, neither the Company Board nor any committee thereof shall (i)(A) withdraw, change, qualify, withhold or modify, or publicly propose to withdraw, change, qualify, withhold or modify, in a manner adverse to Parent, the Company Board Recommendation, (B) adopt, approve or recommend, or publicly propose to adopt, approve or recommend, any Takeover Proposal, (C) fail to include in the Proxy Statement the Company Board Recommendation, (D) fail to recommend against any Takeover Proposal subject to Regulation 14D under the Exchange Act in any solicitation or recommendation statement made on Schedule 14D-9 within ten (10) Business Days after Parent so requests reaffirmation in writing (provided, that Parent shall be entitled to make such a written request for reaffirmation only once for each Takeover Proposal and once for each material amendment to such Takeover Proposal), or (E) resolve or publicly propose to do any of the foregoing (any action described in this clause (i) being referred to herein as a “Company Adverse Recommendation Change”) or (ii) cause or permit the Company or any of its Affiliates to execute or enter into, into any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement or commitment (other than an Acceptable Confidentiality Agreement) constituting, similar agreement with respect to either a Takeover Proposal or any proposal or offer that would could reasonably be expected to lead toto a Takeover Proposal or (D) release any person from, waive any provision of or fail to enforce any standstill agreement to which the Company or any of its Subsidiaries is a party, unless taking such action is reasonably likely to lead to the receipt by the Company of a Superior Proposal. The Company shall promptly deliver a written notice to each person that entered into a confidentiality agreement in anticipation of potentially making a Takeover Proposal to the effect that the Company is ending all discussions and negotiations with such person with respect to any Takeover Proposal (a “Proposal, effective on the date hereof, and the notice shall also demand such person to promptly return or destroy all confidential information concerning the Company Acquisition Agreement”)and its Subsidiaries.
(db) Notwithstanding anything contained in Section 5.02(a) or any other provision of this Agreement to the contrary in this Agreementcontrary, if at any time after the date hereof and prior to obtaining the Company Shareholder ApprovalOffer Acceptance Time, the Company Board (or a duly authorized committee thereof) may make a Company Adverse Recommendation Change (and, solely with respect to a Superior any of its Representatives receives an unsolicitied bona fide written Takeover Proposal, terminate this Agreement pursuant to Section 7.1(d)(ii)), if (i) (A) a Company Intervening Event has occurred or (B) the Company has received a Superior which Takeover Proposal other than as a did not result of a from any breach of this Section 5.3 5.02, then (other than immaterial breach), in each case, if i) the Company and its Representatives may contact such person or group of persons making the Takeover Proposal to request that such person or group clarify the terms and conditions thereof in writing and (ii) if (A) the Board (or a duly authorized committee thereof) of Directors of the Company determines in good faith, after consultation with its financial advisors and outside legal counsel, that such Takeover Proposal constitutes or is reasonably likely to lead to a Superior Proposal and the failure to make a Company Adverse Recommendation Change as a result of the occurrence of take such Company Intervening Event or in response to the receipt of such Superior Proposal, as the case may be, action would reasonably be expected to be inconsistent with its the directors’ fiduciary duties under applicable Law and (iiB) (A) prior to or concurrently with furnishing any information to, or entering into discussions or negotiations with, the person or group of persons making such Takeover Proposal, the Company provides Parent prior written notice to Parent of its intent the identity of such person or group and of the Company’s intention to make any Company Adverse Recommendation Change furnish information to, or terminate this Agreement pursuant to Section 7.1(d)(ii) at least four (4) Business Days prior to taking enter into discussions with, such action to the effect thatperson or group, absent any modification to the terms and conditions of this Agreement, then the Company Board has resolved to effect a Company Adverse Recommendation Change or to terminate this Agreement pursuant to Section 7.1(d)(ii), which notice shall specify the basis for such Company Adverse Recommendation Change or termination and attaching the most current draft of any Company Acquisition Agreement with respect to, the Superior Proposal (or, if no such draft exists, a summary of the material terms and conditions of such Superior Proposal), if applicable (a “Notice of Recommendation Change”) (it being understood that such Notice of Recommendation Change shall not in itself be deemed a Company Adverse Recommendation Change and that any change in price or material revision or amendment to the terms of a Superior Proposal, if applicable, shall require a new notice to which the provisions of clauses (ii)(A), (B) and (C) of this Section 5.3(d) shall apply mutatis mutandis except that, in the case of such a new notice, all references to four (4) Business Days in this Section 5.3(d) shall be deemed to be two (2) Business Days); (B) during such four (4) Business Day period, if requested by Parent, the Company shall make its Representatives available to negotiate in good faith with Parent and its Representatives regarding any modifications to the terms may (x) enter into an Acceptable Confidentiality Agreement with such person or group and conditions of this Agreement that Parent proposes to make; and furnish pursuant (Cbut only pursuant) at the end of such four thereto information (4including non-public information) Business Day period and taking into account any modifications to the terms of this Agreement proposed by Parent, if any, in a written, binding and irrevocable offer, the Company Board determines in good faith (after consultation with outside legal counsel) that the failure to make such a Company Adverse Recommendation Change would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, and that, in the case of a Company Adverse Recommendation Change with respect to a Takeover Proposal, such Takeover Proposal still constitutes a Superior Proposal.
(e) Nothing contained in this Agreement shall prohibit the Company or the Company Board (or a duly authorized committee thereof) from (i) taking and disclosing to the shareholders of the Company a position contemplated by Rule 14e-2(a) under the Exchange Act or making a statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9 under the Exchange Act, (ii) making any disclosure to the shareholders of the Company if the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure to make such disclosure would be reasonably likely to be inconsistent with applicable Law, (iii) informing any Person of the existence of the provisions contained in this Section 5.3 or (iv) making any “stop, look and listen” communication to the shareholders of the Company pursuant to Rule 14d-9(f) under the Exchange Act.
(f) As used in this Agreement, “Takeover Proposal” shall mean any inquiry, proposal or offer (whether or not in writing) from any Person (other than Parent, Merger Sub and any of its Affiliates thereof) to purchase or otherwise acquire, directly or indirectly, in a single transaction or series of related transactions, (a) assets of the Company and its Subsidiaries to such person or group and (including securities of Subsidiariesy) that account for 15% engage in or more otherwise participate in discussions or negotiations with such person or group. In the event that, pursuant to clause (x) of the Company’s consolidated assets or from which 15% or more of foregoing sentence, the Company’s revenues or earnings on a consolidated basis are derived or (b) 15% or more of the outstanding Company Common Stock pursuant furnishes to a merger, consolidation person or other business combination, sale or issuance group of shares of capital stock, tender offer, share exchange, other business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company, in each case other than the Merger.persons making a Takeover Proposal any material non-public
Appears in 1 contract
