No Solicitation; Change of Recommendation. (a) Neither the Company nor any of its Subsidiaries shall, nor shall the Company or any of its Subsidiaries authorize or permit any of its officers, directors or employees to (and the Company and its Subsidiaries shall use their respective reasonable best efforts to cause their respective counsel, financial advisors, auditors and other agents and representatives not to) (such counsel, financial advisors, auditors and other agents and representatives, together with the officers, directors and employees of the Company and its Subsidiaries, collectively referred to herein as the “Company Representatives”), directly or indirectly: (i) solicit, initiate or knowingly take any action to encourage or facilitate the making of an Acquisition Proposal, (ii) participate in any discussions or negotiations with or furnish any information with respect to the Company or any of its Subsidiaries to any third party in connection with an Acquisition Proposal, (iii) take any action to render the Company Rights or Section 203 of Delaware Law inapplicable to any transaction included in the definition of Acquisition Proposal or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries, or (iv) approve or enter into any agreement (including an agreement in principle, letter of intent, term sheet or other similar instrument) with respect to an Acquisition Proposal. Notwithstanding the foregoing, if at any time prior to the Acceptance Date, the Company receives a bona fide written Acquisition Proposal that was not solicited on or after the date of this Agreement, (1) the Company and Company Representatives may contact the third party or parties making such Acquisition Proposal solely for the purpose of clarifying the terms and conditions thereof and (2) if the Board of Directors determines in good faith (after considering the advice of its outside legal and financial advisors) that such Acquisition Proposal is or could be reasonably expected to result in a Superior Proposal, the Company may:
Appears in 2 contracts
Samples: Merger Agreement (Roche Holding LTD), Merger Agreement (Ventana Medical Systems Inc)
No Solicitation; Change of Recommendation. (a) Neither the The Company will not, nor will it permit any of its Subsidiaries shallto, nor shall will it authorize or permit any Representative of the Company or any of its Subsidiaries authorize or permit any of its officers, directors or employees to (and the Company and its Subsidiaries shall use their respective reasonable best efforts to cause their respective counsel, financial advisors, auditors and other agents and representatives not to) (such counsel, financial advisors, auditors and other agents and representatives, together with the officers, directors and employees of the Company and its Subsidiaries, collectively referred to herein as the “Company Representatives”), directly or indirectly:
, (i) solicit, initiate or knowingly take encourage the submission of any action proposal or offer that constitutes, or may reasonably be expected to encourage or facilitate the making of an lead to, any Acquisition Proposal,
, (ii) engage in, continue or otherwise participate in any discussions or negotiations with regarding, or furnish to any Person any non-public information with respect to the Company or any of its Subsidiaries Subsidiaries, or take any other action to facilitate, any third party Acquisition Proposal, or (iii) enter into any letter of intent, agreement or agreement in connection principle with respect to an Acquisition Proposal,
(iii) take any action to render . Immediately after the execution and delivery of this Agreement, the Company Rights will, and will cause its Subsidiaries and Affiliates and their respective Representatives to, cease and terminate any existing activities, discussions or Section 203 of Delaware Law inapplicable to negotiations with any transaction included in the definition of Acquisition Proposal or grant any waiver or release under any standstill or similar agreement Person conducted heretofore with respect to any class of equity securities possible Acquisition Proposal, shall promptly cause to be returned or destroyed all confidential information provided by or on behalf of the Company or any of its SubsidiariesSubsidiaries to such Person, or
(iv) approve and shall notify each such Person and its Representatives that the Company Board no longer seeks or enter into requests the making of any agreement (including an agreement in principleAcquisition Proposal, letter and withdraws any consent theretofore given to the making of intent, term sheet or other similar instrument) with respect to an Acquisition Proposal. .
(b) Notwithstanding anything in Section 6.4(a) to the foregoingcontrary, if at any time prior to the Acceptance Datetime the Stockholder Approval is obtained, but not after, if the Company receives a an unsolicited bona fide written Acquisition Proposal from any Person that was did not solicited on or after result from a breach by the date Company of this AgreementSection 6.4 and that has not been withdrawn, (1i) the Company and Company its Representatives may contact the third party or parties making such Acquisition Proposal solely for the purpose of clarifying Person to clarify the terms and conditions thereof so as to determine whether such Acquisition Proposal constitutes or would reasonably be expected to result in a Superior Proposal and (2ii) if the Company Board of Directors determines has determined, in its good faith judgment, upon the recommendation of the Special Committee (after considering the advice of its outside consultation with an independent financial advisor and independent legal and financial advisors) counsel), that such Acquisition Proposal is constitutes or could would reasonably be reasonably expected to result in a Superior Proposal, then the Company and its Representatives may (x) furnish information (including non-public information) with respect to the Company to the Person who has made such Acquisition Proposal and (y) engage in or otherwise participate in discussions or negotiations (including, as a part thereof, making counterproposals) with the Person making such Acquisition Proposal; provided, that the Company shall (1) notify Parent of any Acquisition Proposal (including, without limitation, all material terms and conditions thereof and the identity of the Person making it) as promptly as practicable (but in no case later than 72 hours) after its receipt thereof, and shall provide Parent with a copy of any written Acquisition Proposal or amendments or supplements thereto, and shall thereafter inform Parent on a reasonably current basis of the status of any inquiries, discussions or negotiations with such third party, and any material changes to the terms and conditions of such Acquisition Proposal, (2) provide notice to Parent of its intent to furnish information or enter into discussions with such Person prior to taking any such action, (3) obtain from such Person an executed confidentiality agreement (a copy of which shall be promptly delivered to Parent following its execution for informational purposes only) containing terms at least as restrictive with respect to such Person as the terms contained in Section 9.11 are with respect to Parent and containing standstill obligations of such Person in reasonably customary form (it being understood that such confidentiality agreement and any related agreements shall not include any provision calling for any exclusive right to negotiate with such Person or having the effect of prohibiting the Company from satisfying its obligations under this Agreement) and (4) concurrently give Parent a copy of any information delivered to such Person that was not previously provided to Parent. The Company shall not, and shall cause its Subsidiaries not to, enter into any Contract with any Person subsequent to the date hereof that would restrict the Company’s ability to provide such information to Parent, and neither the Company nor any of its Subsidiaries is currently party to any agreement that prohibits the Company from providing the information described in this Section 6.4(b) to Parent.
(c) Except as expressly permitted by this Section 6.4, neither the Company Board nor any committee thereof shall (i) (A) fail to make the Company Board Recommendation or fail to include the Company Board Recommendation in the Proxy Statement, (B) withhold, withdraw, qualify or modify, or propose to withhold, withdraw, qualify or modify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (C) adopt, approve or recommend, or propose to adopt, approve or recommend, to the stockholders of the Company any Acquisition Proposal, (D) fail to recommend against any Acquisition Proposal subject to Regulation 14D under the Exchange Act in a Solicitation/Recommendation Statement on Schedule 14D-9 within ten (10) Business Days after the commencement of such Acquisition Proposal or (E) resolve or publicly announce its intention to do any of the foregoing clauses (A) through (D) (any action described in this clause (i), a “Change of Recommendation”), or (ii) authorize, cause or permit the Company or any Subsidiary of the Company to enter into any letter of intent, agreement in principle, acquisition agreement, merger agreement or similar agreement relating to any Acquisition Proposal (each, an “Alternative Acquisition Agreement”).
(d) Notwithstanding anything in this Section 6.4 to the contrary, prior to the time the Stockholder Approval is obtained, but not after, if the Company Board determines, in its good faith judgment upon the recommendation of the Special Committee (upon advice by independent legal counsel), that failure to make a Change of Recommendation, terminate this Agreement pursuant to Section 8.3(b) and enter into an Alternative Acquisition Agreement would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, the Company Board may:, upon the recommendation of the Special Committee (after consultation with an independent financial advisor and independent legal counsel), effect a Change of Recommendation and authorize the Company to terminate this Agreement pursuant to Section 8.3(b) to enter into an Alternative Acquisition Agreement; provided, that (i) any such action is in response to the receipt of an Acquisition Proposal that the Company Board has determined, in its good faith judgment upon the recommendation of the Special Committee (after consultation with an independent financial advisor and independent legal counsel), constitutes or would reasonably be expected to constitute a Superior Proposal and the Company shall not have violated the requirements of this Section 6.4 with respect to such Acquisition Proposal; (ii) the Company has (A) provided at least five (5) Business Days’ (the “Negotiation Period”) prior written notice to Parent (a “Notice of Superior Proposal”) advising Parent that the Company Board has received a Superior Proposal (which notice shall include the material terms and conditions of the Superior Proposal and identify the person making such Superior Proposal and any financing materials related thereto (if any)) and indicating that the Company Board intends to effect a Change of Recommendation and authorize the Company to terminate this Agreement pursuant to Section 8.3(b) to enter into an Alternative Acquisition Agreement, (B) during the Negotiation Period, the Company has negotiated with, and caused its Representatives to negotiate with, Parent and its Representatives in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement and/or the terms of the Financing Documents, so that such Acquisition Proposal would cease to constitute a Superior Proposal, and (C) during the Negotiation Period, the Company has permitted Parent and its Representatives to make a presentation to the Company Board and the Special Committee regarding this Agreement and the Financing Documents and any adjustments with respect thereto (to the extent Parent desires to make such presentation); provided, that any material modifications to such Acquisition Proposal determined to be a Superior Proposal shall require a new Notice of Superior Proposal of the terms of such amended Superior Proposal from the Company and an additional Negotiation Period which should be a three (3) Business Day period rather than the five (5) Business Day period described above; (iii) following the end of the Negotiation Period (or any additional Negotiation Period, if applicable), the Company Board determines, in its good faith judgment upon the recommendation of the Special Committee (after consultation with an independent financial advisor and independent legal counsel), that the Acquisition Proposal giving rise to the Notice of Superior Proposal continues to constitute a Superior Proposal and that failure to make a Change of Recommendation and terminate this Agreement pursuant to Section 8.3(b) to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law; and (iv) following the satisfaction of each of the foregoing requirements and prior to or substantially concurrent with the Company’s termination of this Agreement pursuant to Section 8.3(b), the Company enters into an Alternative Acquisition Agreement with respect to such Superior Proposal.
(e) Notwithstanding anything in this Section 6.4 to the contrary, prior to the time the Stockholder Approval is obtained, but not after, if the Company Board determines, in its good faith judgment upon the recommendation of the Special Committee (after consultation with independent legal counsel), other than in response to or in connection with an Acquisition Proposal, that failure to make a Change of Recommendation would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, the Company Board may, upon the recommendation of the Special Committee (after consultation with an independent financial advisor and independent legal counsel), effect a Change of Recommendation and terminate this Agreement pursuant to Section 8.3(c); provided, that (i) the Company has (A) provided Parent at least five (5) Business Days’ prior written notice indicating that the Company Board intends to effect a Change of Recommendation and terminate this Agreement pursuant to Section 8.3(c), which notice shall specify in detail the basis for such Change of Recommendation and the manner in which it intends (or may intend) to do so, (B) the Company has negotiated with, and caused its Representatives to negotiate with, Parent and its Representatives in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement and/or the terms of the Financing Documents in such a manner that would obviate the need for taking such action, and (C) the Company has permitted Parent and its Representatives to make a presentation to the Company Board and the Special Committee regarding this Agreement and the Financing Documents and any adjustments with respect thereto (to the extent Parent desires to make such presentation); and (ii) following the end of such five (5)-Business Day period, the Company Board determines, in its good faith judgment upon the recommendation of the Special Committee (after consultation with an independent financial advisor and independent legal counsel), that such adjustments proposed by Parent pursuant to the foregoing clauses (B) and (C) would not obviate the need for a Change of Recommendation and terminate this Agreement pursuant to Section 8.3(c).
(f) Nothing contained in this Section 6.4 shall be deemed to prohibit the Company from complying with its disclosure obligations under federal or state Laws of the U.S., or other applicable Laws, with regard to an Acquisition Proposal; provided, that making such disclosure shall not in any way limit or modify the effect, if any, that any such action has under this Section 6.4; provided, further, that if such disclosure includes a Change of Recommendation or has the substantive effect of a Change of Recommendation, Parent shall have the right to terminate this Agreement as set forth in Section 8.4(b) (it being understood that a statement by the Company that describes the Company’s receipt of an Acquisition Proposal and the operation of this Agreement with respect thereto, or any “stop, look or listen” communication that contains only the information set forth in Rule 14d-9(f) under the Exchange Act, shall not be deemed a Change of Recommendation).
(g) For purposes of this Agreement, an “Acquisition Proposal” means any proposal or offer by any Person (other than Parent and its Affiliates) regarding any of the following: (i) a merger, reorganization, consolidation, business combination or other similar transaction involving the Company (or any of its Subsidiaries whose business constitutes 15% or more of the net revenue, net income, or fair market value of the assets of the Company and its Subsidiaries, taken as a whole); (ii) any sale, lease, license, exchange, transfer, other disposition, or joint venture, that would result in any Person (other than Parent and its Affiliates) acquiring assets or business of the Company and its Subsidiaries that constitute or represent 15% or more of the net revenue, net income, or fair market value of the assets of the Company and its Subsidiaries, taken as a whole; (iii) any sale, exchange, transfer or other disposition of 15% or more of any class of equity securities of the Company; (iv) any tender offer or exchange offer that, if consummated, would result in any Person (other than Parent and its Affiliates) beneficially owning 15% or more of any class of equity securities of the Company; a “Superior Proposal” means an unsolicited, written Acquisition Proposal that the Company Board determines, in its good faith judgment upon the recommendation of the Special Committee (after consultation with an independent financial advisor and independent legal counsel), to be (i) more favorable, including from a financial point of view, to the Company and the Company’s stockholders (other than the Rollover Holders) than the Transactions (including any revisions to the terms of this Agreement made or proposed in writing by Parent pursuant to Section 6.4(d) or otherwise prior to the time of determination), and (ii) reasonably likely to be consummated in accordance with its terms, taking into consideration, among other things, financial, legal, regulatory, breakup or termination fee and expense reimbursement provisions; provided, that, for purposes of the definition of “Superior Proposal”, each reference to “15%” in the definition of “Acquisition Proposal” shall be replaced with “50%”.
Appears in 1 contract
Samples: Merger Agreement (Trunkbow International Holdings LTD)
No Solicitation; Change of Recommendation. (a) Neither the Company nor any of its Subsidiaries shall, nor shall the Company or any of its Subsidiaries authorize or permit any of its officers, directors or employees to (and the Company and its Subsidiaries shall use their respective reasonable best efforts to cause their respective counsel, financial advisors, auditors and other agents and representatives not to) (such counsel, financial advisors, auditors and other agents and representatives, together with the officers, directors and employees of the Company and its Subsidiaries, collectively referred to herein as the “Company Representatives”), directly or indirectly:
(i) solicit, initiate or knowingly take any action to encourage or facilitate the making of an Acquisition Proposal,
(ii) participate in any discussions or negotiations with or furnish any information with respect to the Company or any of its Subsidiaries to any third party in connection with an Acquisition Proposal,
, (iii) take any action to render the Company Rights or Section 203 of Delaware Law inapplicable to any transaction included in the definition of Acquisition Proposal or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries, or
(iv) approve or enter into any agreement (including an agreement in principle, letter of intent, term sheet or other similar instrument) with respect to an Acquisition Proposal. Notwithstanding the foregoing, if at any time prior to the Acceptance Date, the Company receives a bona fide written Acquisition Proposal that was not solicited on or after the date of this Agreement, (1) the Company and Company Representatives may contact the third party or parties making such Acquisition Proposal solely for the purpose of clarifying the terms and conditions thereof and (2) if the Board of Directors determines in good faith (after considering the advice of its outside legal and financial advisors) that such Acquisition Proposal is or could be reasonably expected to result in a Superior Proposal, the Company may:
(x) subject to entering into a confidentiality agreement with terms no less favorable in the aggregate in any material respect to the Company than those contained in the Confidentiality Agreement, furnish information (including non-public information) with respect to the Company or any of its Subsidiaries to the third party or parties that made such Acquisition Proposal and participate in discussions or negotiations with respect to such Acquisition Proposal; provided that (i) the Company shall notify Parent promptly (but in no event later than 24 hours) after receipt of any Acquisition Proposal or any request for information with respect to the Company or any of its Subsidiaries by a third party or parties that has made or is considering making an Acquisition Proposal or any indication that a third party is considering making an Acquisition Proposal (such notice to identify the third party and contain the material terms and conditions of any such proposal, request or indication); (ii) the Company shall keep Parent informed, on a prompt basis, of the status of, and any material changes in any such proposal, request or indication; and (iii) the Company shall promptly provide to Parent any material information furnished to the third party that has not previously been provided by Parent; and
(y) approve and enter into a definitive agreement with respect to a Superior Proposal and take any actions listed in Section 6.04(a)(iii) or 6.04(a)(iv), as applicable; provided that (i) the Company shall have complied in all material respects with the provisions of this Section 6.04; (ii) the Company shall have notified Parent in writing that the Board of Directors has determined that the Acquisition Proposal is a Superior Proposal and intends, subject to clause (iii) below, to enter into such a definitive agreement with respect to the Superior Proposal and to terminate this Agreement and attaching the most current version of such agreement (or a summary containing all the material terms and conditions thereof and identifying the third party that has made such proposal); (iii) Parent does not make, within three Business Days after receipt of such written notice, an offer that the Board of Directors shall have concluded in good faith (after considering the advice of its outside legal and financial advisors) causes such Acquisition Proposal to cease to be a Superior Proposal (it being understood that the Company shall not enter into an agreement with respect to the Superior Proposal during such three Business Day period) and (iv) the Company shall, concurrently with entering into such definitive agreement, terminate this Agreement and pay the Termination Fee contemplated by Section 11.04(b).
Appears in 1 contract
