No Solicitation of Acquisition Proposals. (a) The Company agrees that neither it nor any of its Subsidiaries shall, and that it shall direct and use its reasonable best efforts to cause its and its Subsidiaries’ Representatives not to, directly or indirectly: (i) encourage, initiate, solicit or take any other action designed to facilitate an Acquisition Proposal or the making, submission or announcement of any Acquisition Proposal or take any other action designed to facilitate or that is likely to result in, any inquires or the making of any proposal or offer that constitutes, or is reasonably likely to lead to, any Acquisition Proposal; (ii) participate or engage in any discussions or negotiations regarding, or furnish to any person any nonpublic information with respect to, or take any other action to facilitate the submission of any inquiry or the making of any proposal that constitutes or may reasonably be expected to lead to an Acquisition Proposal; (iii) engage in discussions with any person with respect to an Acquisition Proposal, except to notify such person as to the existence of these provisions and refer such person to this Agreement; (iv) approve, endorse or recommend, or propose to approve, endorse, or recommend any Acquisition Proposal; (v) enter into any letter of intent or similar document or any agreement, commitment or understanding contemplating or otherwise relating to any Acquisition Proposal; or (vi) make or authorize any statement, recommendation or solicitation in support of any Acquisition Proposal. The Company agrees that it shall immediately terminate and shall cause its Subsidiaries, and use its reasonable best efforts to cause its and its Subsidiaries’ Representatives, to terminate, immediately, all current discussions or negotiations (if any) in which any of them may be involved with any third party with respect to an Acquisition Proposal. The Company also shall promptly request that each person which has heretofore executed a confidentiality agreement with it or any of its Subsidiaries or any of its or its Subsidiaries’ Representatives with respect to such person’s consideration of a possible Acquisition Proposal to return promptly or destroy all confidential information heretofore furnished to such person or its Representatives in accordance with the terms of such person’s confidentiality agreement. (b) Notwithstanding Section 6.3(a) or anything to the contrary that may be contained elsewhere in this Agreement, if, prior to the date of the Company Shareholders’ Meeting, the Company or any of its Subsidiaries, or any of their respective Representatives, receives a written Acquisition Proposal from any person, which Acquisition Proposal did not result from a breach of Section 6.3(a) and appears, on its face to be bona fide, and the Company Board (or any committee thereof) determines in good faith, after consultation with its financial advisor (which may be its existing Financial Advisor or any affiliate thereof), that such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal, then, subject to its compliance with this Section 6.3 and after giving notice to Parent, the Company or its Representatives may (i) furnish information with respect to the Company to the person who has made such Acquisition Proposal, or any of its Representatives, pursuant to a confidentiality agreement containing confidentiality provisions not materially less restrictive than those contained in the Confidentiality Agreement; provided that such information has previously been provided to Parent or is provided to Parent substantially concurrently with the time it is provided to such person or its Representatives, and (ii) participate in discussions and negotiations with such person regarding such Acquisition Proposal. The Company shall advise Parent orally and in writing of the receipt of any Acquisition Proposal, or any inquiry that could reasonably be expected to lead to an Acquisition Proposal (in each case within two (2) Business Days of receipt thereof), specifying the material terms and conditions thereof and the identity of the person making such Acquisition Proposal or inquiry (as the case may be) and the Company shall use its reasonable best efforts to provide to Parent a copy of all written materials provided to the Company or any of its Subsidiaries in connection with any such Acquisition Proposal not later than 48 hours after the receipt of same by the Company or any of its Subsidiaries and, in order to be able to do so, 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 such information to Parent. The Company shall notify Parent (within forty-eight hours) orally and in writing of any material modifications to the financial or other material terms of any such Acquisition Proposal or inquiry and shall provide to Parent, within that same timeframe, a copy of all written materials subsequently provided to or by the Company or any Subsidiary in connection with any such Acquisition Proposal. (c) Neither the Company Board nor any committee thereof shall withdraw, modify or amend, or propose to withdraw, modify or amend, in a manner adverse to Parent, the Company Board Recommendation or resolve to do so; provided, however, that notwithstanding the foregoing, the Company Board, or any committee thereof, may withdraw, or modify or amend in a manner adverse to the Parent, the Company Board Recommendation and if it takes such action, it also may terminate its efforts to hold, and cancel or postpone, the Company Shareholders’ Meeting, in the event that the Company receives a Superior Proposal and the Company Board, or any committee thereof, determines in good faith, after consultation with its outside legal counsel (which may be its current outside legal counsel), that failure to take such actions could result in a breach of the Company Board’s fiduciary obligations under Governing Law. (d) In addition to the obligations set forth in Sections 6.3(a) and 6.3(b), the Company shall (i) advise Parent as promptly as practicable (and in any event within 24 hours) following the commencement of any discussions or negotiations with respect to any Acquisition Proposal and the material terms and conditions that are the subject of such discussions or negotiations and (ii) keep Parent reasonably informed of the status and material details (including material amendments) with respect to the information previously provided, pursuant to this Section 6.3(d), by the Company in connection with any such Acquisition Proposal. (e) The Company Board (or any committee thereof) may, after the date of this Agreement and prior to the date of the Company Shareholders’ Meeting, terminate this Agreement to enter into an agreement with respect to such Superior Proposal, but only if: (i) such Superior Proposal did not result from a breach by the Company of its covenants contained in Section 6.3 hereof; (ii) the Company Board (or any committee thereof) shall have first provided prior written notice to Parent that it is prepared to terminate this Agreement to enter into an agreement with respect to a Superior Proposal, which notice shall attach the most current version of any written agreement relating to the transaction that constitutes such Superior Proposal; and (iii) Parent does not make, within five (5) Business Days after the receipt of the notice referred to in clause (ii) of this Section 6.3(e), a binding, written and complete (including any schedules or exhibits) proposal that the Company Board (or any committee thereof) determines in good faith, after consultation with its financial advisor (which may be its current Financial Advisor or any affiliate thereof), is more favorable to the shareholders of the Company as such Superior Proposal and which, by its terms, may be accepted at any time within five (5) Business Days following such five (5) Business Day period. (f) In the event of any termination of this Agreement by the Company pursuant to Section 6.3(e), the Company shall pay, as a condition to such termination, the termination fee to Parent pursuant to Section 11.2(b) concurrently with such termination. (g) The Company shall be permitted to comply with Rule 14d-9, Rule 14e-2 or Item 1012 of Regulation M-A promulgated under the Exchange Act; provided, however, that compliance with such rules and items will in no way limit or modify the effect of such action pursuant to such rules and items would otherwise have under this Agreement. (h) If the Company Board or any committee thereof takes, agrees or resolves to take any action permitted by this Section 6.3 without the Company, its Subsidiaries or any of its or its Subsidiaries Representatives breaching any of the terms of this Section 6.3, including, but not limited to any of the actions set forth in Section 6.3(c) and Section 6.3(e) above, such action shall not, in any way, constitute a breach of this Agreement by the Company.
Appears in 2 contracts
Samples: Merger Agreement (Southwest Community Bancorp), Merger Agreement (Placer Sierra Bancshares)
No Solicitation of Acquisition Proposals. (a) The Company agrees that neither it nor any of its Subsidiaries shallSeller shall not, and that it shall direct and use its reasonable best efforts to cause its Affiliates and its Subsidiaries’ and their respective Representatives not to, directly or indirectly: , (ia) encourage, initiate, solicit or take any other action designed to knowingly encourage or facilitate an Acquisition Proposal the making or the making, submission or announcement of any Acquisition Proposal or take any other action designed to facilitate or that is likely to result inProposal, any inquires or the making of any proposal or offer that constitutes, or is reasonably likely to lead to, any Acquisition Proposal; (iib) participate or engage in any discussions or negotiations regarding, with any Person regarding an Acquisition Proposal (it being understood that informing a Person of the existence of this Agreement after any such Person contacts Seller regarding an Acquisition Proposal and the restrictions set forth in this Section 5.10 shall not be a breach of this Section 5.10) or (c) furnish any information to any person any nonpublic information other Person with respect to, or take agree to or otherwise enter into, any other action to facilitate the submission of any inquiry or the making of any proposal that constitutes or may reasonably be expected to lead to an Acquisition Proposal; (iii) engage in discussions with . Seller hereby confirms that it has discontinued, and has previously directed its Affiliates and its and their respective Representatives to discontinue, any person solicitation efforts or negotiations with respect to an Acquisition Proposal, except to notify such person as to the existence of these provisions and refer such person to this Agreement; (iv) approve, endorse or recommend, or propose to approve, endorse, or recommend any Acquisition Proposal; (v) enter into any letter of intent or similar document or any agreement, commitment or understanding contemplating or otherwise relating to any Acquisition Proposal; or (vi) make or authorize any statement, recommendation or solicitation in support furtherance of any Acquisition Proposal. The Company agrees that it shall immediately terminate and shall cause its Subsidiaries, and use its reasonable best efforts to cause its and its Subsidiaries’ Representatives, to terminate, immediately, all current discussions or negotiations (if any) in which any of them may be involved with any third party with respect to an Acquisition Proposal. The Company also Seller shall promptly request that each person which has heretofore executed a confidentiality agreement with it or (and in any event within three Business Days after receipt thereof by Seller, any of its Subsidiaries Affiliates or any of its or its Subsidiaries’ Representatives with respect to such person’s consideration of a possible Acquisition Proposal to return promptly or destroy all confidential information heretofore furnished to such person or its Representatives in accordance with the terms of such person’s confidentiality agreement.
(btheir Representatives) Notwithstanding Section 6.3(a) or anything to the contrary that may be contained elsewhere in this Agreement, if, prior to the date of the Company Shareholders’ Meeting, the Company or any of its Subsidiaries, or any of their respective Representatives, receives a written Acquisition Proposal from any person, which Acquisition Proposal did not result from a breach of Section 6.3(a) and appears, on its face to be bona fide, and the Company Board (or any committee thereof) determines in good faith, after consultation with its financial advisor (which may be its existing Financial Advisor or any affiliate thereof), that such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal, then, subject to its compliance with this Section 6.3 and after giving notice to Parent, the Company or its Representatives may (i) furnish information with respect to the Company to the person who has made such Acquisition Proposal, or any of its Representatives, pursuant to a confidentiality agreement containing confidentiality provisions not materially less restrictive than those contained in the Confidentiality Agreement; provided that such information has previously been provided to Parent or is provided to Parent substantially concurrently with the time it is provided to such person or its Representatives, and (ii) participate in discussions and negotiations with such person regarding such Acquisition Proposal. The Company shall advise Parent Purchaser orally and in writing of the receipt of any Acquisition Proposal, any request for information with respect to any Acquisition Proposal, or any inquiry that with respect to or which could reasonably be expected to lead to result in an Acquisition Proposal (in each case within two (2) Business Days of receipt thereof)Proposal, specifying the material terms and conditions thereof of such request, Acquisition Proposal or inquiry, and the identity of the person Person making such Acquisition Proposal or inquiry (as the case may be) and the Company shall use its reasonable best efforts to provide to Parent a copy of all written materials provided to the Company or any of its Subsidiaries in connection with any such Acquisition Proposal not later than 48 hours after the receipt of same by the Company or any of its Subsidiaries andsame. In addition, in order to be able to do so, the Company Seller 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 such information to Parent. The Company shall notify Parent (within forty-eight hours) orally and in writing of any material modifications to the financial or other material terms of any such Acquisition Proposal or inquiry and shall provide to Parent, within that same timeframe, a copy of all written materials subsequently provided to or by the Company or any Subsidiary in connection with any such Acquisition Proposal.
(c) Neither the Company Board nor any committee thereof shall withdraw, modify or amend, or propose to withdraw, modify or amend, in a manner adverse to Parent, the Company Board Recommendation or resolve to do so; provided, however, that notwithstanding the foregoing, the Company Board, or any committee thereof, may withdraw, or modify or amend in a manner adverse to the Parent, the Company Board Recommendation and if it takes such action, it also may terminate its use commercially reasonable efforts to hold, and cancel or postpone, the Company Shareholders’ Meeting, in the event that the Company receives a Superior Proposal and the Company Board, or any committee thereof, determines in good faith, after consultation with enforce its outside legal counsel (which may be its current outside legal counsel), that failure to take such actions could result in a breach rights under Section 6.03 of the Company Board’s fiduciary obligations under Governing Law.
(d) In addition to the obligations set forth in Sections 6.3(a) and 6.3(b), the Company shall (i) advise Parent Merger Agreement as promptly as practicable (and in any event within 24 hours) following the commencement of any discussions or negotiations with respect it relates to any Acquisition Proposal and the material terms and conditions shall provide Purchaser prompt notice of any notices or other information that are the subject of such discussions or negotiations and (ii) keep Parent reasonably informed of the status and material details (including material amendments) Seller receives with respect to the information previously provided, pursuant to this Section 6.3(d), by the Company in connection with any such Acquisition Proposalthereto.
(e) The Company Board (or any committee thereof) may, after the date of this Agreement and prior to the date of the Company Shareholders’ Meeting, terminate this Agreement to enter into an agreement with respect to such Superior Proposal, but only if:
(i) such Superior Proposal did not result from a breach by the Company of its covenants contained in Section 6.3 hereof;
(ii) the Company Board (or any committee thereof) shall have first provided prior written notice to Parent that it is prepared to terminate this Agreement to enter into an agreement with respect to a Superior Proposal, which notice shall attach the most current version of any written agreement relating to the transaction that constitutes such Superior Proposal; and
(iii) Parent does not make, within five (5) Business Days after the receipt of the notice referred to in clause (ii) of this Section 6.3(e), a binding, written and complete (including any schedules or exhibits) proposal that the Company Board (or any committee thereof) determines in good faith, after consultation with its financial advisor (which may be its current Financial Advisor or any affiliate thereof), is more favorable to the shareholders of the Company as such Superior Proposal and which, by its terms, may be accepted at any time within five (5) Business Days following such five (5) Business Day period.
(f) In the event of any termination of this Agreement by the Company pursuant to Section 6.3(e), the Company shall pay, as a condition to such termination, the termination fee to Parent pursuant to Section 11.2(b) concurrently with such termination.
(g) The Company shall be permitted to comply with Rule 14d-9, Rule 14e-2 or Item 1012 of Regulation M-A promulgated under the Exchange Act; provided, however, that compliance with such rules and items will in no way limit or modify the effect of such action pursuant to such rules and items would otherwise have under this Agreement.
(h) If the Company Board or any committee thereof takes, agrees or resolves to take any action permitted by this Section 6.3 without the Company, its Subsidiaries or any of its or its Subsidiaries Representatives breaching any of the terms of this Section 6.3, including, but not limited to any of the actions set forth in Section 6.3(c) and Section 6.3(e) above, such action shall not, in any way, constitute a breach of this Agreement by the Company.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Extreme Networks Inc)
No Solicitation of Acquisition Proposals. (a) The Company From the date of this Agreement and prior to the earlier of the Effective Time or the termination of this Agreement, UWWH agrees that neither it nor any of its Subsidiaries shall, and that it UWWH shall direct and use its reasonable best efforts to cause its Representatives, agents and its Subsidiaries’ Representatives other intermediaries (including any accountants, financial or legal advisors or other consultants) not to, (i) directly or indirectly: (i) encourage, initiatesolicit, solicit initiate or take any other action designed to facilitate an Acquisition Proposal or the making, submission or announcement of any Acquisition Proposal or take any other action designed to facilitate or that is likely to result in, any inquires or the making of any proposal or offer that constitutes, or is reasonably likely to lead to, any Acquisition Proposal; (ii) participate or engage in any discussions or negotiations regarding, or furnish to any person any nonpublic information with respect to, or take any other action to facilitate the submission of encourage any inquiry or the making of any proposal that constitutes or may reasonably be expected to lead to an Acquisition Proposal; (iii) engage in discussions with any person with respect to an Acquisition Proposal, except to notify such person as to the existence of these provisions and refer such person to this Agreement; (iv) approve, endorse or recommend, or propose to approve, endorse, or recommend any Acquisition Proposal; (v) enter into any letter of intent or similar document or any agreement, commitment or understanding contemplating or otherwise relating to any Acquisition Proposal; or (vi) make or authorize any statement, recommendation or solicitation in support of any Acquisition Proposal. The Company agrees that it shall immediately terminate and shall cause its Subsidiaries, and use its reasonable best efforts to cause its and its Subsidiaries’ Representatives, to terminate, immediately, all current discussions or negotiations (if any) in which any of them may be involved with any third party with respect to an Acquisition Proposal. The Company also shall promptly request that each person which has heretofore executed a confidentiality agreement with it or any of its Subsidiaries or any of its or its Subsidiaries’ Representatives with respect to such person’s consideration of a possible Acquisition Proposal to return promptly or destroy all confidential information heretofore furnished to such person or its Representatives in accordance with the terms of such person’s confidentiality agreement.
(b) Notwithstanding Section 6.3(a) or anything to the contrary that may be contained elsewhere in this Agreement, if, prior to the date of the Company Shareholders’ Meeting, the Company or any of its Subsidiaries, or any of their respective Representatives, receives a written Acquisition Proposal from any person, which Acquisition Proposal did not result from a breach of Section 6.3(a) and appears, on its face to be bona fide, and the Company Board (or any committee thereof) determines in good faith, after consultation with its financial advisor (which may be its existing Financial Advisor or any affiliate thereof), that such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal, then, subject to its compliance with this Section 6.3 and after giving notice to Parent, the Company or its Representatives may (i) furnish information with respect to the Company to the person who has made such UWWH Acquisition Proposal, (ii) provide any non-public information or data to any Person relating to or in connection with a UWWH Acquisition Proposal, (iii) waive, amend or modify any standstill or confidentiality agreement (other than the Confidentiality Agreement or confidentiality agreements with any UWWH Employees) to which it or any of its RepresentativesSubsidiaries is a party in connection with a UWWH Acquisition Proposal, pursuant to (iv) enter into, maintain or continue any discussions or negotiations concerning a confidentiality agreement containing confidentiality provisions not materially less restrictive than those contained in the Confidentiality Agreement; provided that such information has previously been provided to Parent UWWH Acquisition Proposal or is provided to Parent substantially concurrently with the time it is provided to such person or its Representatives(v) otherwise cooperate with, and (ii) participate in or facilitate any effort or attempt to make or implement a UWWH Acquisition Proposal or approve, agree to, recommend or accept, or propose to approve, recommend, agree to or accept, or execute or enter into, any letter of intent, agreement in principle, merger agreement, acquisition agreement, option agreement or other similar agreement related to any UWWH Acquisition Proposal and UWWH shall request the return of any Confidential Information distributed to any such parties in connection with any such activities, discussions and negotiations with such person regarding such Acquisition Proposalor negotiations. The Company UWWH shall advise Parent orally and promptly (and, in writing any event, within 48 hours) notify IP of the receipt of any UWWH Acquisition ProposalProposal or any inquiry, proposal, offer or request for information with respect to, or any inquiry that could reasonably be expected to lead to an result in, a UWWH Acquisition Proposal (Proposal, indicating, in each case within two (2) Business Days of receipt thereof)case, specifying the material terms and conditions thereof and the identity of the person Person or group making such UWWH Acquisition Proposal Proposal, inquiry, offer, proposal or inquiry (as the case may be) request for information and the Company shall use its reasonable best efforts to provide to Parent a copy of all written materials provided to the Company or any of its Subsidiaries in connection with any such UWWH Acquisition Proposal not later than 48 hours after the receipt of same by the Company or any of its Subsidiaries and, in order to be able to do so, 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 such information to Parent. The Company shall notify Parent (within forty-eight hours) orally and made in writing of any material modifications to the financial or other material terms of any such Acquisition Proposal or inquiry and shall provide to Parent, within that same timeframe, a copy of all written materials subsequently provided to or by the Company or any Subsidiary in connection with any such Acquisition Proposal.
(c) Neither the Company Board nor any committee thereof shall withdraw, modify or amend, or propose to withdraw, modify or amend, in a manner adverse to Parent, the Company Board Recommendation or resolve to do so; provided, however, that notwithstanding the foregoing, the Company Board, or any committee thereof, may withdraw, or modify or amend in a manner adverse to the Parent, the Company Board Recommendation and if it takes such action, it also may terminate its efforts to hold, and cancel or postpone, the Company Shareholders’ Meeting, in the event that the Company receives a Superior Proposal and the Company Board, or any committee thereof, determines in good faith, after consultation with its outside legal counsel (which may be its current outside legal counsel), that failure to take such actions could result in a breach of the Company Board’s fiduciary obligations under Governing Law.
(d) In addition to the obligations set forth in Sections 6.3(a) and 6.3(b), the Company shall (i) advise Parent as promptly as practicable (and in any event within 24 hours) following the commencement of any discussions or negotiations with respect to any Acquisition Proposal and the material terms and conditions that are the subject of such discussions a UWWH Acquisition Proposal not made in writing (including, in each case, as applicable, copies of any written requests, proposals or negotiations offers, including proposed agreements), and thereafter shall keep IP informed in reasonable detail, on a prompt basis (ii) keep Parent reasonably informed and, in any event, within forty-eight hours), of the status and terms of any such UWWH Acquisition Proposal, inquiry, offer, proposal or request, including any material details developments or modifications to the terms of any such UWWH Acquisition Proposal, inquiry, proposal, offer or request (including material amendments) with respect to the information previously provided, pursuant to this Section 6.3(damendments thereto), by the Company in connection with any such Acquisition Proposal.
(eb) The Company Board (or any committee thereof) may, after From the date of this Agreement and prior to the date earlier of the Company Shareholders’ MeetingEffective Time or the termination of this Agreement, terminate this Agreement to enter into an agreement with respect to such Superior Proposaleach of IP and Spinco agrees that neither it nor any of their respective Subsidiaries, but only if:
as applicable, shall, and each of IP and Spinco shall cause its respective Representatives, agents and other intermediaries (including any accountants, financial or legal advisors, or other consultants) not to, (i) such Superior Proposal did not result from directly or indirectly, solicit, initiate or encourage any inquiry or proposal that constitutes or could reasonably be expected to lead to a breach by the Company of its covenants contained in Section 6.3 hereof;
Spinco Acquisition Proposal, (ii) the Company Board (provide any non-public information or data to any committee thereof) shall have first provided prior written notice Person relating to Parent that it is prepared to terminate this Agreement to enter into an agreement or in connection with respect to a Superior Spinco Acquisition Proposal, which notice shall attach the most current version of any written agreement relating to the transaction that constitutes such Superior Proposal; and
(iii) Parent does not makewaive, within five (5) Business Days after the receipt of the notice referred to in clause (ii) of this Section 6.3(e), a binding, written and complete (including any schedules or exhibits) proposal that the Company Board (or any committee thereof) determines in good faith, after consultation with its financial advisor (which may be its current Financial Advisor or any affiliate thereof), is more favorable to the shareholders of the Company as such Superior Proposal and which, by its terms, may be accepted at any time within five (5) Business Days following such five (5) Business Day period.
(f) In the event of any termination of this Agreement by the Company pursuant to Section 6.3(e), the Company shall pay, as a condition to such termination, the termination fee to Parent pursuant to Section 11.2(b) concurrently with such termination.
(g) The Company shall be permitted to comply with Rule 14d-9, Rule 14e-2 or Item 1012 of Regulation M-A promulgated under the Exchange Act; provided, however, that compliance with such rules and items will in no way limit amend or modify any standstill or confidentiality agreement (other than the effect of such action pursuant Confidentiality Agreement or confidentiality agreements with any Spinco Group Employees) to such rules and items would otherwise have under this Agreement.
(h) If the Company Board or any committee thereof takes, agrees or resolves to take any action permitted by this Section 6.3 without the Company, its Subsidiaries which it or any of its Subsidiaries, is a party relating primarily to the Spinco Business in connection with a Spinco Acquisition Proposal, (iv) enter into, maintain or its Subsidiaries Representatives breaching continue any discussions or negotiations concerning a Spinco Acquisition Proposal or (v) otherwise cooperate with, participate in or facilitate any effort or attempt to make or implement a Spinco Acquisition Proposal or approve, agree to, recommend or accept or propose to approve, recommend, agree to or accept, or execute or enter into, any letter of intent, agreement in principle, merger agreement, acquisition agreement, option agreement or other similar agreement related to any Spinco Acquisition Proposal and each of IP and Spinco shall request the return of any Confidential Information distributed to any such parties in connection with any such activities, discussions or negotiations. IP and Spinco shall promptly (and, in any event, within 48 hours) notify UWWH of the receipt of any Spinco Acquisition Proposal or any inquiry, proposal, offer or request for information with respect to, or that could reasonably be expected to result in, a Spinco Acquisition Proposal, indicating, in each case, the identity of the Person or group making such Spinco Acquisition Proposal, inquiry, offer, proposal or request for information and a copy of any Spinco Acquisition Proposal made in writing and the material terms and conditions of a Spinco Acquisition Proposal not made in writing (including, in each case, as applicable, copies of any written requests, proposals or offers, including proposed agreements), and thereafter shall keep UWWH informed in reasonable detail, on a prompt basis (and, in any event, within forty-eight hours), of the status and terms of any such Spinco Acquisition Proposal, inquiry, offer, proposal or request, including any material developments or modifications to the terms of this Section 6.3any such Spinco Acquisition Proposal, includinginquiry, but not limited to any of the actions set forth in Section 6.3(c) and Section 6.3(e) aboveproposal, such action shall not, in any way, constitute a breach of this Agreement by the Companyoffer or request (including amendments thereto).
Appears in 2 contracts
Samples: Merger Agreement (Xpedx Holding Co), Merger Agreement (Xpedx Holding Co)
No Solicitation of Acquisition Proposals. (a) The During the Pre-Closing Period, neither the Company agrees that neither it nor any of its Subsidiaries shall, and that it nor shall direct and use its reasonable best efforts to cause its and its Subsidiaries’ they authorize or knowingly permit any of their respective Representatives not to, directly or indirectly: , (ia) encouragesolicit, initiate, solicit initiate or take any other action designed to facilitate an Acquisition Proposal or induce the making, submission or announcement of, or knowingly encourage, facilitate or assist, an Acquisition Proposal, (b) furnish to any Person (other than Parent, GT Topco, Merger Sub or any designees of Parent, GT Topco or Merger Sub) any non-public information relating to the Company or any of its Subsidiaries, or afford to any Person (other than Parent, GT Topco, Merger Sub or any of their Representatives) access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries, in any such case with the intent to induce the making, submission or announcement of, or the intent to encourage, facilitate or assist, an Acquisition Proposal or take any other action designed to facilitate or inquiries that is likely to result in, any inquires or the making of any proposal or offer that constitutes, or is reasonably likely to lead to, any Acquisition Proposal; (ii) participate or engage in any discussions or negotiations regarding, or furnish to any person any nonpublic information with respect to, or take any other action to facilitate the submission of any inquiry or the making of any proposal that constitutes or may would reasonably be expected to lead to an Acquisition Proposal; , (iiic) participate or engage in discussions or negotiations with any person Person with respect to an Acquisition Proposal, except to notify such person as to the existence of these provisions and refer such person to this Agreement; or (iv) approve, endorse or recommend, or propose to approve, endorse, or recommend any Acquisition Proposal; (vd) enter into any letter of intent or similar document or any agreement, commitment or understanding contemplating or otherwise Contract relating to any Acquisition Proposal; or (vi) make or authorize any statement, recommendation or solicitation in support of any Acquisition Proposal. The Company agrees that it shall immediately terminate and shall cause its Subsidiaries, and use its reasonable best efforts to cause its and its Subsidiaries’ Representatives, to terminate, immediately, all current discussions or negotiations (if any) in which any of them may be involved with any third party with respect to an Acquisition Proposal. The To the extent permitted by applicable Law, the Company also shall promptly request that each person which has heretofore executed a confidentiality agreement with it (1) promptly, and in any event within one (1) Business Day, notify Parent if any director or any of its Subsidiaries or any of its or its Subsidiaries’ Representatives with respect to such person’s consideration of a possible Acquisition Proposal to return promptly or destroy all confidential information heretofore furnished to such person or its Representatives in accordance with the terms of such person’s confidentiality agreement.
(b) Notwithstanding Section 6.3(a) or anything to the contrary that may be contained elsewhere in this Agreement, if, prior to the date officer of the Company Shareholders’ Meeting, or such Securityholder becomes aware of any receipt by the Company or any of its Subsidiaries, or any of their respective Representatives, receives a written Acquisition Proposal from any person, which Acquisition Proposal did not result from a breach of Section 6.3(a) and appears, on its face to be bona fide, and the Company Board (or any committee thereof) determines in good faith, after consultation with its financial advisor (which may be its existing Financial Advisor or any affiliate thereof), that such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal, then, subject to its compliance with this Section 6.3 and after giving notice to Parent, the Company or its Representatives may (i) furnish information with respect to the Company to the person who has made such Acquisition Proposal, or any of its Representatives, pursuant to a confidentiality agreement containing confidentiality provisions not materially less restrictive than those contained in the Confidentiality Agreement; provided that such information has previously been provided to Parent or is provided to Parent substantially concurrently with the time it is provided to such person or its Representatives, and (ii) participate in discussions and negotiations with such person regarding such Acquisition Proposal. The Company shall advise Parent orally and in writing of the receipt of any Acquisition Proposal, or (ii) any inquiry request for information that could would reasonably be expected to lead to an Acquisition Proposal Proposal, or (in each case within two (2iii) Business Days of receipt thereof)any inquiry with respect to, specifying or which would reasonably be expected to lead to, any Acquisition Proposal, the material terms and conditions thereof of such Acquisition Proposal, request or inquiry, and the identity of the person Person or group making any such Acquisition Proposal, request or inquiry, and (2) provide Parent with a copy of any written proposal or materials related to any such Acquisition Proposal or inquiry request for information or inquiry.
(as the case may beb) The Company immediately shall cease and cause to be terminated all existing discussions, conversations, negotiations and other communications with any Persons conducted heretofore in connection with or with respect to any potential sale of or any other potential business combination involving the Company shall use or any of its reasonable best efforts Subsidiaries.
(c) Promptly, and in any event within one (1) Business Day, after the execution of this Agreement, the Company shall, to provide the extent it has not done so prior to Parent a copy the execution of all written materials this Agreement, send to other Persons to whom confidential information was provided in connection with or with respect to any potential sale of or any other potential business combination involving the Company or any of its Subsidiaries “return or destroy” notices in connection with any such Acquisition Proposal not later than 48 hours after the receipt of same by the Company or any of its Subsidiaries and, in order to be able to do so, 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 such information to Parent. The Company shall notify Parent (within forty-eight hours) orally and in writing of any material modifications to the financial or other material terms of any such Acquisition Proposal or inquiry and shall provide to Parent, within that same timeframe, a copy of all written materials subsequently provided to or by the Company or any Subsidiary in connection with any such Acquisition Proposal.
(c) Neither the Company Board nor any committee thereof shall withdraw, modify or amend, or propose to withdraw, modify or amend, in a manner adverse to Parent, the Company Board Recommendation or resolve to do so; provided, however, that notwithstanding the foregoing, the Company Board, or any committee thereof, may withdraw, or modify or amend in a manner adverse to the Parent, the Company Board Recommendation and if it takes such action, it also may terminate its efforts to hold, and cancel or postpone, the Company Shareholders’ Meeting, in the event that the Company receives a Superior Proposal and the Company Board, or any committee thereof, determines in good faith, after consultation with its outside legal counsel (which may be its current outside legal counsel), that failure to take such actions could result in a breach of the Company Board’s fiduciary obligations under Governing Law.
(d) In addition to the obligations set forth in Sections 6.3(a) and 6.3(b), the Company shall (i) advise Parent as promptly as practicable (and in any event within 24 hours) following the commencement of any discussions or negotiations with respect to any Acquisition Proposal and the material terms and conditions that are the subject of such discussions or negotiations and (ii) keep Parent reasonably informed of the status and material details (including material amendments) with respect to the information previously provided, pursuant to this Section 6.3(d), by the Company in connection with any such Acquisition Proposalinformation.
(e) The Company Board (or any committee thereof) may, after the date of this Agreement and prior to the date of the Company Shareholders’ Meeting, terminate this Agreement to enter into an agreement with respect to such Superior Proposal, but only if:
(i) such Superior Proposal did not result from a breach by the Company of its covenants contained in Section 6.3 hereof;
(ii) the Company Board (or any committee thereof) shall have first provided prior written notice to Parent that it is prepared to terminate this Agreement to enter into an agreement with respect to a Superior Proposal, which notice shall attach the most current version of any written agreement relating to the transaction that constitutes such Superior Proposal; and
(iii) Parent does not make, within five (5) Business Days after the receipt of the notice referred to in clause (ii) of this Section 6.3(e), a binding, written and complete (including any schedules or exhibits) proposal that the Company Board (or any committee thereof) determines in good faith, after consultation with its financial advisor (which may be its current Financial Advisor or any affiliate thereof), is more favorable to the shareholders of the Company as such Superior Proposal and which, by its terms, may be accepted at any time within five (5) Business Days following such five (5) Business Day period.
(f) In the event of any termination of this Agreement by the Company pursuant to Section 6.3(e), the Company shall pay, as a condition to such termination, the termination fee to Parent pursuant to Section 11.2(b) concurrently with such termination.
(g) The Company shall be permitted to comply with Rule 14d-9, Rule 14e-2 or Item 1012 of Regulation M-A promulgated under the Exchange Act; provided, however, that compliance with such rules and items will in no way limit or modify the effect of such action pursuant to such rules and items would otherwise have under this Agreement.
(h) If the Company Board or any committee thereof takes, agrees or resolves to take any action permitted by this Section 6.3 without the Company, its Subsidiaries or any of its or its Subsidiaries Representatives breaching any of the terms of this Section 6.3, including, but not limited to any of the actions set forth in Section 6.3(c) and Section 6.3(e) above, such action shall not, in any way, constitute a breach of this Agreement by the Company.
Appears in 2 contracts
No Solicitation of Acquisition Proposals. Section 4.1 The Securityholder (ain such Securityholder’s capacity as such) The Company agrees that neither it nor any of its Subsidiaries shall, and that it shall direct and use its reasonable best efforts to cause its and its Subsidiaries’ Representatives not to, directly or indirectly: (i) encourage, initiate, solicit or take any other action designed to facilitate an Acquisition Proposal or the making, submission or announcement of any Acquisition Proposal or take any other action designed to facilitate or that is likely to result in, any inquires or the making of any proposal or offer that constitutes, or is reasonably likely to lead to, any Acquisition Proposal; (ii) participate or engage in any discussions or negotiations regarding, or furnish to any person any nonpublic information with respect to, or take any other action to facilitate the submission of any inquiry or the making of any proposal that constitutes or may reasonably be expected to lead to an Acquisition Proposal; (iii) engage in discussions with any person with respect to an Acquisition Proposal, except to notify such person as to the existence of these provisions and refer such person to this Agreement; (iv) approve, endorse or recommend, or propose to approve, endorse, or recommend any Acquisition Proposal; (v) enter into any letter of intent or similar document or any agreement, commitment or understanding contemplating or otherwise relating to any Acquisition Proposal; or (vi) make or authorize any statement, recommendation or solicitation in support of any Acquisition Proposal. The Company agrees that it shall immediately terminate and shall cause its SubsidiariesAffiliates, and use its reasonable best efforts to cause its and their respective officers, directors, managers or employees, and shall instruct its Subsidiaries’ Representativesand their respective accountants, to terminateconsultants, immediatelylegal counsel, all current financial advisors, agents and other representatives to: (a) immediately cease any existing solicitations, discussions or negotiations (if any) in which with any of them Persons that may be involved with any third party ongoing with respect to an Acquisition Proposal. The Company also shall promptly any inquiry, proposal, discussion, offer or request that each person which has heretofore executed a confidentiality agreement with it or any of its Subsidiaries or any of its or its Subsidiaries’ Representatives with respect to such person’s consideration of a possible Acquisition Proposal to return promptly or destroy all confidential information heretofore furnished to such person or its Representatives in accordance with the terms of such person’s confidentiality agreement.
(b) Notwithstanding Section 6.3(a) or anything to the contrary that may be contained elsewhere in this Agreement, if, prior to the date of the Company Shareholders’ Meeting, the Company or any of its Subsidiaries, or any of their respective Representatives, receives a written Acquisition Proposal from any person, which Acquisition Proposal did not result from a breach of Section 6.3(a) and appears, on its face to be bona fide, and the Company Board (or any committee thereof) determines in good faith, after consultation with its financial advisor (which may be its existing Financial Advisor or any affiliate thereof), that such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal, then, subject to its compliance with this Section 6.3 and after giving notice to Parent, the Company or its Representatives may (i) furnish information with respect to the Company to the person who has made such Acquisition Proposal, or any of its Representatives, pursuant to a confidentiality agreement containing confidentiality provisions not materially less restrictive than those contained in the Confidentiality Agreement; provided that such information has previously been provided to Parent or is provided to Parent substantially concurrently with the time it is provided to such person or its Representatives, and (ii) participate in discussions and negotiations with such person regarding such Acquisition Proposal. The Company shall advise Parent orally and in writing of the receipt of any Acquisition Proposal, or any inquiry that could reasonably be expected to lead to an Acquisition Proposal (in each case within two “Inquiry”) and (2b) Business Days of receipt thereofnot, and not publicly announce any intention to, directly or indirectly, (i) solicit, initiate, knowingly encourage or facilitate any Inquiry (it being understood and agreed that answering unsolicited phone calls shall not be deemed to “facilitate” for purposes of, or otherwise constitute a violation of, this Section 4.1), specifying the material terms and conditions thereof and the identity (ii) furnish non-public information to any Person in connection with an Inquiry or an Acquisition Proposal, or (iii) enter into, continue or otherwise participate in any discussions or negotiations with any Person with respect to an Inquiry or an Acquisition Proposal.
Section 4.2 The Securityholder shall (a) notify Parent reasonably promptly (but in no event more than twenty-four (24) hours) following such Securityholder’s receipt of the person making such any Acquisition Proposal or inquiry (as the case may be) and the Company shall use its reasonable best efforts to provide to Parent a copy of all written materials provided any Inquiry or request for non-public information relating to the Company or any Company Subsidiary by any Person who has made or could reasonably be expected to make any Acquisition Proposal, (b) advise Parent in writing of its Subsidiaries in connection with (i) the receipt of such Acquisition Proposal, Inquiry or request, (ii) the identity of the Person making any such Acquisition Proposal, Inquiry or request, and (iii) the terms and conditions of such Acquisition Proposal not later than 48 hours after or potential Acquisition Proposal or the receipt nature of same the information requested, (iv) as reasonably promptly as practicable provide to Parent: (1) a copy of such Acquisition Proposal or potential Acquisition Proposal, if in writing, or a written summary of the material terms of such Acquisition Proposal, if oral, and (2) copies of all written requests, proposals, correspondence or offer, including proposed agreements received by the Company such Securityholder or any of its Subsidiaries and, in order to be able to do so, the Company agrees that it Representatives; and its Subsidiaries will not enter into any confidentiality agreement with any person subsequent to the date hereof which prohibits the Company from providing such information to Parent. The Company shall notify Parent (within forty-eight hours) orally and in writing of any material modifications to the financial or other material terms of any such Acquisition Proposal or inquiry and shall provide to Parent, within that same timeframe, a copy of all written materials subsequently provided to or by the Company or any Subsidiary in connection with any such Acquisition Proposal.
(c) Neither the Company Board nor any committee thereof shall withdraw, modify or amend, or propose to withdraw, modify or amend, in a manner adverse to Parent, the Company Board Recommendation or resolve to do so; provided, however, that notwithstanding the foregoing, the Company Board, or any committee thereof, may withdraw, or modify or amend in a manner adverse to the Parent, the Company Board Recommendation and if it takes such action, it also may terminate its efforts to hold, and cancel or postpone, the Company Shareholders’ Meeting, in the event that the Company receives a Superior Proposal and the Company Board, or any committee thereof, determines in good faith, after consultation with its outside legal counsel (which may be its current outside legal counsel), that failure to take such actions could result in a breach of the Company Board’s fiduciary obligations under Governing Law.
(d) In addition to the obligations set forth in Sections 6.3(a) and 6.3(b), the Company shall (i) advise Parent as promptly as practicable (and in any event within 24 hours) following the commencement of any discussions or negotiations with respect to any Acquisition Proposal and the material terms and conditions that are the subject of such discussions or negotiations and (ii) keep Parent reasonably informed on a reasonably current basis, or upon Parent’s reasonable request, (i) of the status and material details terms of (including material amendmentsamendments or revisions or proposed amendments or revisions to) with respect to the information previously provided, pursuant to this Section 6.3(d), by the Company in connection with any each such Acquisition Proposal.
(e) The Company Board (Proposal or any committee thereof) may, after the date of this Agreement and prior to the date of the Company Shareholders’ Meeting, terminate this Agreement to enter into an agreement with respect to such Superior potential Acquisition Proposal, but only if:
(i) such Superior Proposal did not result from a breach by the Company of its covenants contained in Section 6.3 hereof;
and (ii) as to the Company Board (or nature of any committee thereof) shall have first provided prior written notice to Parent that it is prepared to terminate this Agreement to enter into an agreement information requested of such Securityholder with respect to a Superior Proposal, which notice shall attach the most current version of any written agreement relating to the transaction that constitutes such Superior Proposal; and
(iii) Parent does not make, within five (5) Business Days after the receipt of the notice referred to in clause (ii) of this Section 6.3(e), a binding, written and complete (including any schedules or exhibits) proposal that the Company Board (or any committee thereof) determines in good faith, after consultation with its financial advisor (which may be its current Financial Advisor or any affiliate thereof), is more favorable to the shareholders of the Company as such Superior Proposal and which, by its terms, may be accepted at any time within five (5) Business Days following such five (5) Business Day periodthereto.
(f) In the event of any termination of this Agreement by the Company pursuant to Section 6.3(e), the Company shall pay, as a condition to such termination, the termination fee to Parent pursuant to Section 11.2(b) concurrently with such termination.
(g) The Company shall be permitted to comply with Rule 14d-9, Rule 14e-2 or Item 1012 of Regulation M-A promulgated under the Exchange Act; provided, however, that compliance with such rules and items will in no way limit or modify the effect of such action pursuant to such rules and items would otherwise have under this Agreement.
(h) If the Company Board or any committee thereof takes, agrees or resolves to take any action permitted by this Section 6.3 without the Company, its Subsidiaries or any of its or its Subsidiaries Representatives breaching any of the terms of this Section 6.3, including, but not limited to any of the actions set forth in Section 6.3(c) and Section 6.3(e) above, such action shall not, in any way, constitute a breach of this Agreement by the Company.
Appears in 2 contracts
Samples: Voting and Support Agreement (Ei. Ventures, Inc.), Voting and Support Agreement (Ei. Ventures, Inc.)
No Solicitation of Acquisition Proposals. (a) The Company agrees that neither it nor any of its Subsidiaries nor any of their respective officers and directors shall, and that it shall direct and use its reasonable best efforts to cause its and its Subsidiaries’ other Representatives not to, directly or indirectly: (i) encourage, initiate, solicit or take any other action designed to facilitate an Acquisition Proposal or the making, submission or announcement of any Acquisition Proposal or take any other action designed to facilitate or that is likely to result in, any inquires or the making of any proposal or offer that constitutes, or is reasonably likely to lead to, any Acquisition Proposal; (ii) participate or engage in any discussions or negotiations regarding, or furnish to any person any nonpublic information with respect to, or take any other action to facilitate the submission of any inquiry or the making of any proposal that constitutes or may reasonably be expected to lead to an Acquisition Proposal; (iii) engage in discussions with any person with respect to an Acquisition Proposal, except to notify such person as to the existence of these provisions and refer such person to this Agreement; (iv) approve, endorse or recommend, or propose to approve, endorse, or recommend any Acquisition Proposal; or (v) enter into any letter of intent or similar document or any agreement, commitment or understanding contemplating or otherwise relating to any Acquisition Proposal; or (vi) make or authorize any statement, recommendation or solicitation in support of any Acquisition Proposal. The Company agrees that it shall immediately terminate and shall cause its SubsidiariesSubsidiaries and their respective officers and directors, and use its reasonable best efforts to cause its and its Subsidiaries’ other Representatives, to terminate, immediately, all current discussions or negotiations (if any) in which any of them may be involved with any third party with respect to an Acquisition Proposal. The Company also shall promptly request that each person which has heretofore executed a confidentiality agreement with it or any of its Subsidiaries or any of its or its Subsidiaries’ Representatives with respect to such person’s consideration of a possible Acquisition Proposal to return promptly or destroy all confidential information heretofore furnished to such person or its Representatives in accordance with the terms of such person’s confidentiality agreement.
(b) Notwithstanding Section 6.3(a) or anything to the contrary that may be contained elsewhere in this Agreement, if, prior to the date of obtaining the Company Shareholders’ MeetingShareholder Approval, (x) the Company or any of its Subsidiaries, or any of their respective Representatives, receives a written Acquisition Proposal from any person, which Acquisition Proposal did not result from a material breach of Section 6.3(a) and appears, appears on its face to be bona fide, and (y) the Company Board (Board, or any committee thereof) Special Board Committee (as hereinafter defined), determines in good faith, after consultation with its the Company’s financial advisor (which may be its existing the Company Financial Advisor or any affiliate thereof), that such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal, and (z) the Company Board or any such Special Board Committee (as the case may be) determines in good faith after consultation with outside legal counsel that failure to take such action could reasonably be expected to result in a breach of the Company Board’s fiduciary duties under Governing Law, then, subject to its compliance with this Section 6.3 and after giving notice to ParentAcquiror, the Company or its Representatives may (i) furnish information with respect to the Company to the person who has made such Acquisition Proposal, or any of its Representatives, pursuant to a confidentiality agreement containing confidentiality provisions not materially less restrictive than those contained in the Confidentiality Agreement; provided that such information has previously been provided to Parent Acquiror or is provided to Parent Acquiror substantially concurrently with the time it is provided to such person or its Representatives, and (ii) participate in discussions and negotiations with such person regarding such Acquisition Proposal. The Company shall advise Parent Acquiror orally and in writing of the receipt of any Acquisition Proposal, or any inquiry that could reasonably be expected to lead to an Acquisition Proposal (in each case within two one (21) Business Days Day of receipt thereof), specifying the material terms and conditions thereof and the identity of the person making such Acquisition Proposal or inquiry (as the case may be) and the Company shall use its reasonable best efforts to provide to Parent Acquiror a copy of all written materials provided to the Company or any of its Subsidiaries in connection with any such Acquisition Proposal not later than 48 hours one (1) Business Day after the receipt of same by the Company or any of its Subsidiaries and, in order to be able to do so, 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 such information to ParentAcquiror. The Company shall notify Parent Acquiror (within forty-eight hoursone (1) Business Day) orally and in writing of any material modifications to the financial or other material terms of any such Acquisition Proposal or inquiry and shall provide to ParentAcquiror, within that same timeframe, a copy of all written materials subsequently provided to or by the Company or any Subsidiary in connection with any such Acquisition Proposal.
(c) Neither the Company Board nor any committee thereof Special Board Committee shall withdraw, modify or amend, or propose to withdraw, modify or amend, in a manner adverse to ParentAcquiror, the Company Board Recommendation or resolve to do so; provided, however, that notwithstanding the foregoing, the Company BoardBoard or Special Board Committee, or any committee thereofas the case may be, may withdraw, or modify or amend in a manner adverse to the ParentAcquiror, the Company Board Recommendation and if it takes such action, it also may terminate its efforts to hold, and cancel or postpone, the Company Shareholders’ Meeting, in the event that the Company receives a Superior Proposal which did not result from a material breach of Section 6.3(a) or (b) and the Company Board, or any committee thereofSpecial Board Committee, determines in good faith, after consultation with its outside legal counsel (which may be its current outside legal counsel), that failure to take such actions action could reasonably be expected to result in a breach of the Company Board’s fiduciary obligations under Governing Law; provided, further, that no such change of Company Board Recommendation may be made until after at least 48 hours following Acquiror’s receipt of written notice from the Company advising that the Company Board or a Special Board Committee intends to take such action. In determining whether to make a change of Company Board Recommendation in response to a Superior Proposal or otherwise, the Company Board or Special Board Committee, as the case may be, shall take into account any changes to the terms of this Agreement proposed by Acquiror or any other information provided by Acquiror in response to such notice during such 48 hour notice period.
(d) In addition to the obligations set forth in Sections 6.3(a) and 6.3(b), the Company shall (i) advise Parent Acquiror as promptly as practicable (and in any event within 24 twenty four hours) following the commencement of any discussions or negotiations with respect to any Acquisition Proposal and the material terms and conditions that are the subject of such discussions or negotiations and (ii) keep Parent Acquiror reasonably informed of the status and material details (including material amendments) with respect to the information previously provided, pursuant to this Section 6.3(d)6.3, by the Company in connection with any such Acquisition Proposal.
(e) The Company Board (or any committee thereof) may, after the date of this Agreement and prior to the date of obtaining the Company Shareholders’ MeetingShareholder Approval, terminate this Agreement to enter into an agreement with respect to such Superior Proposal, but only if:
(i) such Superior Proposal did not result from a material breach by the Company of its covenants contained in Section 6.3 6.3(a) hereof;
(ii) the Company Board is entitled to withdraw the Company Board Recommendation pursuant to Section 6.3(c);
(iii) the Company Board (or any committee thereofSpecial Board Committee) shall have first provided prior written notice to Parent Acquiror that it is prepared to terminate this Agreement to enter into an a definitive agreement with respect to a Superior Proposal, which notice shall attach the most current version of any written agreement relating to the transaction that constitutes such Superior Proposal; and
(iiiiv) Parent Acquiror does not make, within five (5) Business Days after the receipt of the notice referred to in clause (iiiii) of this Section 6.3(e), a binding, written and complete (including any schedules or exhibits) proposal that the Company Board (or any committee thereof) determines in good faith, after consultation with its financial advisor (which may be its current Financial Advisor financial advisor or any affiliate thereof), is more as favorable to the shareholders stockholders of the Company as such Superior Proposal and which, by its terms, may be accepted at any time within five (5) Business Days following such five (5) Business Day periodperiod (provided that the Company shall not enter into any such binding agreement until the sixth (6th) Business Day after providing such notice).
(f) In the event of any termination of this Agreement by the Company pursuant to Section 6.3(e), the Company shall pay, as a condition to such termination, pay the termination fee to Parent Acquiror pursuant to Section 11.2(b11.2(c) no later than concurrently with such termination.
(g) The Nothing contained in this Section 6.3 or elsewhere in this Agreement shall prohibit the Company shall be permitted from (i) taking and disclosing to comply with its shareholders a position contemplated by Rule 14d-9, Rule 14e-2 or Item 1012 of Regulation M-A promulgated under the Exchange Act; providedAct or (ii) making any disclosure to the Company’s shareholders if, howeverin the good faith judgment of the Company Board, that compliance with such rules and items will failure to so disclose could reasonably be expected to result in no way limit a violation of the obligations of the Company or modify the effect of such action pursuant to such rules and items would otherwise have Company Board under this AgreementGoverning Law.
(h) If the Company Board or any committee thereof Special Board Committee takes, agrees or resolves to take any action permitted by this Section 6.3 without the Company, its Subsidiaries or any of its or its Subsidiaries Representatives breaching any of the terms of this Section 6.3, including, but not limited to any of the actions set forth in Section 6.3(c) and Section 6.3(e) above, such action shall not, in any way, constitute a breach of this Agreement by the Company.
Appears in 2 contracts
Samples: Merger Agreement (Foothill Independent Bancorp), Merger Agreement (Foothill Independent Bancorp)
No Solicitation of Acquisition Proposals. (a) The Company agrees that neither it nor shall immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of its Subsidiaries shallthis Agreement with respect to any Acquisition Proposal or Acquisition Transaction.
(b) Other than with respect to the transactions with Parent contemplated by this Agreement, the Company shall not, and that it the Company shall direct and use its reasonable best efforts to cause its officers, directors, Affiliates, securityholders, Employees, agents, any investment banker, attorney, other advisor and its Subsidiaries’ Representatives representative retained by it (all of the foregoing collectively being the “Company Representatives”) to not to, directly or indirectly: , (i) encouragesolicit, initiate, solicit seek, entertain, encourage, facilitate, support or take induce (or assist in or cooperate with any other action designed to facilitate an Acquisition Proposal or Person in) the making, submission or announcement of any Acquisition Proposal or take any other action designed to facilitate or that is likely to result ininquiry, any inquires or the making expression of any interest, proposal or offer that constitutes, or is reasonably likely to lead to, any Acquisition Proposal; (ii) participate or engage in any discussions or negotiations regarding, or furnish to any person any nonpublic information with respect to, or take any other action to facilitate the submission of any inquiry or the making of any proposal that constitutes or may would reasonably be expected to lead to to, an Acquisition Proposal; (iii) engage in discussions with any person with respect to Proposal or an Acquisition ProposalTransaction, (ii) enter into, participate in, maintain or continue any discussions, communications (except solely to notify such person provide written notice as to the existence of these provisions and refer such person provisions) or negotiations regarding any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to this Agreement; lead to, an Acquisition Proposal or an Acquisition Transaction, or otherwise take any action to facilitate any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal or an Acquisition Transaction, (iii) disclose or make available any information not customarily disclosed to any Person concerning the Company’s businesses, properties, assets or technologies, or afford to any Person access to its properties, technologies, books or records, (iv) agree to, accept, approve, endorse or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any inquiry, expression of interest, proposal or offer that constitutes, or propose would reasonably be expected to approvelead to, endorsean Acquisition Proposal or an Acquisition Transaction, or recommend any Acquisition Proposal; (v) enter into any letter of intent or similar document or any agreement, commitment or understanding other Contract contemplating or otherwise relating to an Acquisition Proposal or an Acquisition Transaction, (vi) submit an Acquisition Proposal or an Acquisition Transaction to the vote of any securityholders of the Company, or (vii) consummate or otherwise effect a transaction providing for any transaction contemplated by an Acquisition Proposal or an Acquisition Transaction.
(c) The Company shall immediately notify Parent orally and in writing after receipt by the Company and/or any Company Representatives of (i) any Acquisition Proposal; , (ii) any inquiry, proposal or (vi) make or authorize any statement, recommendation or solicitation in support of any Acquisition Proposal. The Company agrees offer that it shall immediately terminate and shall cause its Subsidiaries, and use its reasonable best efforts to cause its and its Subsidiaries’ Representatives, to terminate, immediately, all current discussions or negotiations (if any) in which any of them may be involved with any third party with respect to an Acquisition Proposal. The Company also shall promptly request that each person which has heretofore executed a confidentiality agreement with it or any of its Subsidiaries or any of its or its Subsidiaries’ Representatives with respect to such person’s consideration of a possible Acquisition Proposal to return promptly or destroy all confidential information heretofore furnished to such person or its Representatives in accordance with the terms of such person’s confidentiality agreement.
(b) Notwithstanding Section 6.3(a) or anything to the contrary that may be contained elsewhere in this Agreement, if, prior to the date of the Company Shareholders’ Meeting, the Company or any of its Subsidiariesconstitutes, or any of their respective Representatives, receives a written Acquisition Proposal from any person, which Acquisition Proposal did not result from a breach of Section 6.3(a) and appears, on its face to be bona fide, and the Company Board (or any committee thereof) determines in good faith, after consultation with its financial advisor (which may be its existing Financial Advisor or any affiliate thereof), that such Acquisition Proposal constitutes or could would reasonably be expected to lead to a Superior Proposalto, thenan Acquisition Proposal or an Acquisition Transaction, subject to its compliance with this Section 6.3 and after giving (iii) any other notice to Parent, the Company or its Representatives may (i) furnish information with respect to the Company to the person who has made such that any Person is considering making an Acquisition Proposal, or (iv) any of its Representatives, pursuant to a confidentiality agreement containing confidentiality provisions not materially less restrictive request for information by any Person or Persons (other than those contained in the Confidentiality Agreement; provided that such information has previously been provided to Parent or is provided to Parent substantially concurrently with the time it is provided to such person or its Representatives, and (iiParent) participate in discussions and negotiations with such person regarding such Acquisition Proposal. The Company shall advise Parent orally and in writing of the receipt of any Acquisition Proposal, or any inquiry that could reasonably be expected to lead to to, or be used for the consideration of, an Acquisition Proposal Proposal. Such notice shall describe (in each case within two (2A) Business Days of receipt thereof), specifying the material terms and conditions thereof of such Acquisition Proposal, inquiry, proposal, offer, notice or request, and (B) the identity of the person Person or Group (as defined in Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations of the SEC promulgated thereunder) making any such Acquisition Proposal Proposal, inquiry, proposal, offer, notice or inquiry (as the case may be) and the request. The Company shall use its reasonable best efforts to keep Parent fully informed of the status and details of, and any modification to, any such Acquisition Proposal, inquiry, proposal or offer and any correspondence or communications related thereto and shall provide to Parent a true, correct and complete copy of all such Acquisition Proposal, inquiry, proposal or offer and any amendments, correspondence and communications related thereto, if it is in writing, or a reasonable written materials summary thereof, if it is not in writing. The Company shall provide Parent with 72 hours’ prior notice (or such lesser prior notice as is provided to the members of the Company Board of Directors) of any meeting of the Company Board of Directors at which the Company Board of Directors is reasonably expected to discuss an Acquisition Proposal or an Acquisition Transaction.
(d) The Company shall be deemed to have breached the terms of this Section 5.1 if any Company Representative shall take any action that is prohibited by this Section 5.1 to be taken by the Company. The parties hereto agree that irreparable damage would occur in the event that the provisions of its Subsidiaries this Section 5.1 were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed by the parties hereto that Parent shall be entitled to seek and obtain, without any proof of actual damages, an injunction or injunctions to prevent breaches of the provisions of this Section 5.1 and to enforce specifically the terms and provisions hereof, this being in addition to any other remedy to which Parent may be entitled at law or in equity. Parent shall not be required to provide any bond or other security in connection with any such Acquisition Proposal not later than 48 hours after the receipt injunction or order or decree of same by the Company specific performance or any of its Subsidiaries and, in order to be able to do so, 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 such information to Parent. The Company shall notify Parent (within forty-eight hours) orally and in writing of any material modifications to the financial or other material terms of any such Acquisition Proposal or inquiry and shall provide to Parent, within that same timeframe, a copy of all written materials subsequently provided to or by the Company or any Subsidiary in connection with any such Acquisition Proposalrelated Action.
(c) Neither the Company Board nor any committee thereof shall withdraw, modify or amend, or propose to withdraw, modify or amend, in a manner adverse to Parent, the Company Board Recommendation or resolve to do so; provided, however, that notwithstanding the foregoing, the Company Board, or any committee thereof, may withdraw, or modify or amend in a manner adverse to the Parent, the Company Board Recommendation and if it takes such action, it also may terminate its efforts to hold, and cancel or postpone, the Company Shareholders’ Meeting, in the event that the Company receives a Superior Proposal and the Company Board, or any committee thereof, determines in good faith, after consultation with its outside legal counsel (which may be its current outside legal counsel), that failure to take such actions could result in a breach of the Company Board’s fiduciary obligations under Governing Law.
(d) In addition to the obligations set forth in Sections 6.3(a) and 6.3(b), the Company shall (i) advise Parent as promptly as practicable (and in any event within 24 hours) following the commencement of any discussions or negotiations with respect to any Acquisition Proposal and the material terms and conditions that are the subject of such discussions or negotiations and (ii) keep Parent reasonably informed of the status and material details (including material amendments) with respect to the information previously provided, pursuant to this Section 6.3(d), by the Company in connection with any such Acquisition Proposal.
(e) The Company Board (or any committee thereof) may, after the date of this Agreement and prior to the date of the Company Shareholders’ Meeting, terminate this Agreement to enter into an agreement with respect to such Superior Proposal, but only if:
(i) such Superior Proposal did not result from a breach by the Company of its covenants contained in Section 6.3 hereof;
(ii) the Company Board (or any committee thereof) shall have first provided prior written notice to Parent that it is prepared to terminate this Agreement to enter into an agreement with respect to a Superior Proposal, which notice shall attach the most current version of any written agreement relating to the transaction that constitutes such Superior Proposal; and
(iii) Parent does not make, within five (5) Business Days after the receipt of the notice referred to in clause (ii) of this Section 6.3(e), a binding, written and complete (including any schedules or exhibits) proposal that the Company Board (or any committee thereof) determines in good faith, after consultation with its financial advisor (which may be its current Financial Advisor or any affiliate thereof), is more favorable to the shareholders of the Company as such Superior Proposal and which, by its terms, may be accepted at any time within five (5) Business Days following such five (5) Business Day period.
(f) In the event of any termination of this Agreement by the Company pursuant to Section 6.3(e), the Company shall pay, as a condition to such termination, the termination fee to Parent pursuant to Section 11.2(b) concurrently with such termination.
(g) The Company shall be permitted to comply with Rule 14d-9, Rule 14e-2 or Item 1012 of Regulation M-A promulgated under the Exchange Act; provided, however, that compliance with such rules and items will in no way limit or modify the effect of such action pursuant to such rules and items would otherwise have under this Agreement.
(h) If the Company Board or any committee thereof takes, agrees or resolves to take any action permitted by this Section 6.3 without the Company, its Subsidiaries or any of its or its Subsidiaries Representatives breaching any of the terms of this Section 6.3, including, but not limited to any of the actions set forth in Section 6.3(c) and Section 6.3(e) above, such action shall not, in any way, constitute a breach of this Agreement by the Company.
Appears in 1 contract
Samples: Merger Agreement (Fusion-Io, Inc.)
No Solicitation of Acquisition Proposals. The Seller Parties shall not, and shall cause their respective employees, officers, directors, agents, representatives and subsidiaries (aand their employees, officers, directors, agents and representatives) The Company agrees that neither it nor not to (and will not authorize any of its Subsidiaries shall, and that it shall direct and use its reasonable best efforts to cause its and its Subsidiaries’ Representatives not them to), directly or indirectly: , initiate, solicit, encourage or knowingly facilitate or induce any offer or proposal to invest in the Company or any Seller Subsidiary or acquire (i) encourage, initiate, solicit any of the Purchased Assets or take any other action designed to facilitate an Acquisition Proposal or the making, submission or announcement of any Acquisition Proposal or take any other action designed to facilitate or that is likely to result in, any inquires or the making of any proposal or offer that constitutes, or is reasonably likely to lead to, any Acquisition Proposal; (ii) any significant interest in the Company or any Seller Subsidiary whether by merger, purchase of assets, grant of an exclusive license or otherwise (an “Acquisition Proposal”), or effect any such transaction to the extent such transaction would be consummated prior to the earlier of the consummation of the transactions contemplated hereby or the termination of this Agreement in accordance with its terms, or participate or engage in any discussions or negotiations regarding, or furnish any information to any person any nonpublic information other Person with respect to, or take any other action agree to facilitate the submission of any inquiry or the making of any proposal that constitutes or may reasonably be expected to lead to an Acquisition Proposal; (iii) engage in discussions with any person with respect to an Acquisition Proposal, except to notify such person as to the existence of these provisions and refer such person to this Agreement; (iv) approve, endorse or recommend, or propose to approve, endorse, or recommend any Acquisition Proposal; (v) enter into any letter of intent or similar document or any agreement, commitment or understanding contemplating or otherwise relating to any Acquisition Proposal; or (vi) make or authorize any statemententer into, recommendation or solicitation in support of any Acquisition Proposal. The Company agrees represents and warrants to Buyer that it shall immediately terminate and shall cause its Subsidiaries, and use its reasonable best efforts to cause its the Company and its Subsidiaries’ Representativessubsidiaries have ceased any and all activities, to terminate, immediately, all current discussions or negotiations (if any) in which any of them may be involved with any third party parties conducted on or prior to the date hereof with respect to any Acquisition Proposal with respect to the Seller Subsidiaries, the Business or the Purchased Assets. The Company shall promptly notify Buyer orally and in writing after receipt of any Acquisition Proposal or any inquiry or request for information relating to the Purchased Assets or the Business that it reasonably believes could lead to an Acquisition Proposal. The Company also shall promptly request that each person which has heretofore executed a confidentiality agreement with it or any of its Subsidiaries or any of its or its Subsidiaries’ Representatives with respect to such person’s consideration of a possible Acquisition Proposal to return promptly or destroy all confidential information heretofore furnished to such person or its Representatives in accordance with the terms of such person’s confidentiality agreement.
(b) Notwithstanding Section 6.3(a) or anything to the contrary that may be contained elsewhere in this Agreement, if, prior to the date of the Company Shareholders’ Meeting, the Company or any of its Subsidiaries, or any of their respective Representatives, receives a written Acquisition Proposal from any person, which Acquisition Proposal did not result from a breach of Section 6.3(a) and appears, on its face to be bona fide, and notice shall identify the Company Board (or any committee thereof) determines in good faith, after consultation with its financial advisor (which may be its existing Financial Advisor or any affiliate thereof), that such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal, then, subject to its compliance with this Section 6.3 and after giving notice to Parent, the Company or its Representatives may (i) furnish information with respect to the Company to the person who has made Person making such Acquisition Proposal, inquiry or any of its Representativesrequest, pursuant to a confidentiality agreement containing confidentiality provisions not materially less restrictive than those contained in the Confidentiality Agreement; provided that such information has previously been provided to Parent or is provided to Parent substantially concurrently with the time it is provided to such person or its Representatives, and (ii) participate in discussions and negotiations with such person regarding such Acquisition Proposal. The Company shall advise Parent orally and in writing of the receipt of any Acquisition Proposal, or any inquiry that could reasonably be expected to lead to an Acquisition Proposal (in each case within two (2) Business Days of receipt thereof), specifying the material terms and conditions thereof and the identity of the person making such Acquisition Proposal Proposal, inquiry or inquiry (as the case may be) request and the Company shall use its reasonable best efforts to provide to Parent a true and complete copy of all written materials provided to the Company or any of its Subsidiaries in connection with any such Acquisition Proposal not later than 48 hours after the receipt of same by the Company Proposal, inquiry or any of its Subsidiaries and, in order to be able to do so, 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 such information to Parentrequest. The Company shall notify Parent (within forty-eight hours) orally and in writing of any material modifications to the financial or other material terms of any such Acquisition Proposal or inquiry shall, and shall provide to Parentdirect its representatives to, within that same timeframe, a copy of all written materials subsequently provided to or by the Company or discontinue any Subsidiary in connection with any such Acquisition Proposal.
(c) Neither the Company Board nor any committee thereof shall withdraw, modify or amend, or propose to withdraw, modify or amend, in a manner adverse to Parent, the Company Board Recommendation or resolve to do so; provided, however, that notwithstanding the foregoing, the Company Board, or any committee thereof, may withdraw, or modify or amend in a manner adverse to the Parent, the Company Board Recommendation and if it takes such action, it also may terminate its solicitation efforts to hold, and cancel or postpone, the Company Shareholders’ Meeting, in the event that the Company receives a Superior Proposal and the Company Board, or any committee thereof, determines in good faith, after consultation with its outside legal counsel (which may be its current outside legal counsel), that failure to take such actions could result in a breach of the Company Board’s fiduciary obligations under Governing Law.
(d) In addition to the obligations set forth in Sections 6.3(a) and 6.3(b), the Company shall (i) advise Parent as promptly as practicable (and in any event within 24 hours) following the commencement of any discussions or negotiations with respect to or in furtherance of any Acquisition Proposal and the material terms and conditions that are the subject of such discussions or negotiations and (ii) keep Parent reasonably informed of the status and material details (including material amendments) with respect to the information previously provided, pursuant to this Section 6.3(d), by the Company in connection with any such Acquisition Proposal.
(e) The Company Board (or any committee thereof) may, after the date of this Agreement and prior to the date of the Company Shareholders’ Meeting, terminate this Agreement to enter into an agreement with respect to such Superior Proposal, but only if:
(i) such Superior Proposal did not result from a breach by the Company of its covenants contained in Section 6.3 hereof;
(ii) the Company Board (or any committee thereof) shall have first provided prior written notice to Parent that it is prepared to terminate this Agreement to enter into an agreement with respect to a Superior Proposal, which notice shall attach the most current version of any written agreement relating to the transaction that constitutes such Superior Proposal; and
(iii) Parent does not make, within five (5) Business Days after the receipt of the notice referred to in clause (ii) of this Section 6.3(e), a binding, written and complete (including any schedules or exhibits) proposal that the Company Board (or any committee thereof) determines in good faith, after consultation with its financial advisor (which may be its current Financial Advisor or any affiliate thereof), is more favorable to the shareholders of the Company as such Superior Proposal and which, by its terms, may be accepted at any time within five (5) Business Days following such five (5) Business Day period.
(f) In the event of any termination of this Agreement by the Company pursuant to Section 6.3(e), the Company shall pay, as a condition to such termination, the termination fee to Parent pursuant to Section 11.2(b) concurrently with such termination.
(g) The Company shall be permitted to comply with Rule 14d-9, Rule 14e-2 or Item 1012 of Regulation M-A promulgated under the Exchange Act; provided, however, that compliance with such rules and items will in no way limit or modify the effect of such action pursuant to such rules and items would otherwise have under this Agreement.
(h) If the Company Board or any committee thereof takes, agrees or resolves to take any action permitted by this Section 6.3 without the Company, its Subsidiaries or any of its or its Subsidiaries Representatives breaching any of the terms of this Section 6.3, including, but not limited to any of the actions set forth in Section 6.3(c) and Section 6.3(e) above, such action shall not, in any way, constitute a breach of this Agreement by the Company.
Appears in 1 contract
No Solicitation of Acquisition Proposals. (a) The Company agrees that neither it nor any Until the earlier of the Closing or the termination of this Agreement in accordance with its terms, Seller shall not, and shall cause each of its Subsidiaries shall, and that it shall direct and use its reasonable best efforts to cause its and its Subsidiaries’ Representatives not to, directly or indirectly: , (ia) encouragesolicit, initiate, solicit facilitate or knowingly encourage, or take any action to solicit, initiate, facilitate or knowingly encourage any inquiries, announcements or communications relating to, or the making of any submission, proposal or offer that constitutes or that would reasonably be expected to lead to, an Acquisition Proposal, (b) enter into, participate in, maintain or continue any discussions or negotiations relating to, any Acquisition Proposal with any Person other than Buyer, (b) furnish to any Person other than Buyer any information that Seller believes or should reasonably know would be used for the purposes of formulating any inquiry, expression of interest, proposal or offer relating to an Acquisition Proposal, or take any other action designed to facilitate an Acquisition Proposal or the makingregarding any inquiry, submission or announcement expression of any Acquisition Proposal or take any other action designed to facilitate or that is likely to result ininterest, any inquires or the making of any proposal or offer that constitutes, or is reasonably likely to lead to, any Acquisition Proposal; (ii) participate or engage in any discussions or negotiations regarding, or furnish to any person any nonpublic information with respect to, or take any other action to facilitate the submission of any inquiry or the making of any proposal that constitutes or may would reasonably be expected to lead to to, an Acquisition Proposal; Proposal or (iiid) engage in discussions with any person with respect to an Acquisition Proposal, except to notify such person as to the existence of these provisions and refer such person to this Agreement; (iv) approve, endorse or recommend, or propose to approve, endorse, or recommend accept any Acquisition Proposal; (v) Proposal or enter into any letter of intent or similar document or any agreement, commitment arrangement or understanding contemplating providing for the consummation of any transaction contemplated by any Table of Contents Acquisition Proposal or otherwise relating to any Acquisition Proposal; or (vi) make or authorize any statement. Seller shall, recommendation or solicitation in support of any Acquisition Proposal. The Company agrees that it shall immediately terminate and shall cause each of its SubsidiariesRepresentatives to, immediately cease and use its reasonable best efforts cause to cause its be terminated any and its Subsidiaries’ Representativesall existing activities, to terminate, immediately, all current discussions or negotiations (if any) in which any of them may be involved with any third party with respect to an Acquisition Proposal. The Company also shall promptly request that each person which has heretofore executed a confidentiality agreement with it or any of its Subsidiaries or any of its or its Subsidiaries’ Representatives with respect to such person’s consideration of a possible Acquisition Proposal to return promptly or destroy all confidential information heretofore furnished to such person or its Representatives in accordance with the terms of such person’s confidentiality agreement.
(b) Notwithstanding Section 6.3(a) or anything to the contrary that may be contained elsewhere in this Agreement, if, Persons conducted prior to or on the date of the Company Shareholders’ Meeting, the Company or any of its Subsidiaries, or any of their respective Representatives, receives a written Acquisition Proposal from any person, which Acquisition Proposal did not result from a breach of Section 6.3(a) and appears, on its face to be bona fide, and the Company Board (or any committee thereof) determines in good faith, after consultation with its financial advisor (which may be its existing Financial Advisor or any affiliate thereof), that such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal, then, subject to its compliance with this Section 6.3 and after giving notice to Parent, the Company or its Representatives may (i) furnish information with respect to the Company to the person who has made such Acquisition Proposal, or any of its Representatives, pursuant to a confidentiality agreement containing confidentiality provisions not materially less restrictive than those contained in the Confidentiality Agreement; provided that such information has previously been provided to Parent or is provided to Parent substantially concurrently with the time it is provided to such person or its Representatives, and (ii) participate in discussions and negotiations with such person regarding such Acquisition Proposal. The Company shall advise Parent orally and in writing of the receipt of any Acquisition Proposal, or any inquiry that could reasonably be expected to lead to an Acquisition Proposal (in each case within two (2) Business Days of receipt thereof), specifying the material terms and conditions thereof and the identity of the person making such Acquisition Proposal or inquiry (as the case may be) and the Company shall use its reasonable best efforts to provide to Parent a copy of all written materials provided to the Company or any of its Subsidiaries in connection with any such Acquisition Proposal not later than 48 hours after the receipt of same by the Company or any of its Subsidiaries and, in order to be able to do so, 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 such information to Parent. The Company shall notify Parent (within forty-eight hours) orally and in writing of any material modifications to the financial or other material terms of any such Acquisition Proposal or inquiry and shall provide to Parent, within that same timeframe, a copy of all written materials subsequently provided to or by the Company or any Subsidiary in connection with any such Acquisition Proposal.
(c) Neither the Company Board nor any committee thereof shall withdraw, modify or amend, or propose to withdraw, modify or amend, in a manner adverse to Parent, the Company Board Recommendation or resolve to do so; provided, however, that notwithstanding the foregoing, the Company Board, or any committee thereof, may withdraw, or modify or amend in a manner adverse to the Parent, the Company Board Recommendation and if it takes such action, it also may terminate its efforts to hold, and cancel or postpone, the Company Shareholders’ Meeting, in the event that the Company receives a Superior Proposal and the Company Board, or any committee thereof, determines in good faith, after consultation with its outside legal counsel (which may be its current outside legal counsel), that failure to take such actions could result in a breach of the Company Board’s fiduciary obligations under Governing Law.
(d) In addition to the obligations set forth in Sections 6.3(a) and 6.3(b), the Company shall (i) advise Parent as promptly as practicable (and in any event within 24 hours) following the commencement of any discussions or negotiations Agreement with respect to any Acquisition Proposal Proposal, including suspending such Persons’ access to any electronic or physical data room and requesting the material terms and conditions that are the subject return of such discussions or negotiations and (ii) keep Parent reasonably informed of the status and material details (including material amendments) with respect to the all confidential information previously provided, pursuant to this Section 6.3(d), by the Company in connection with any such Acquisition Proposal.
(e) The Company Board (or any committee thereof) may, after the date of this Agreement and prior to the date of the Company Shareholders’ Meeting, terminate this Agreement to enter into an agreement with respect distributed to such Superior Proposal, but only if:
(i) such Superior Proposal did not result from a breach by the Company of its covenants contained in Section 6.3 hereof;
(ii) the Company Board (or any committee thereof) shall have first provided prior written notice to Parent that it is prepared to terminate this Agreement to enter into an agreement with respect to a Superior Proposal, which notice shall attach the most current version of any written agreement relating to the transaction that constitutes such Superior Proposal; and
(iii) Parent does not make, within five (5) Business Days after the receipt of the notice referred to in clause (ii) of this Section 6.3(e), a binding, written and complete (including any schedules or exhibits) proposal that the Company Board (or any committee thereof) determines in good faith, after consultation with its financial advisor (which may be its current Financial Advisor or any affiliate thereof), is more favorable to the shareholders of the Company as such Superior Proposal and which, by its terms, may be accepted at any time within five (5) Business Days following such five (5) Business Day periodPersons.
(f) In the event of any termination of this Agreement by the Company pursuant to Section 6.3(e), the Company shall pay, as a condition to such termination, the termination fee to Parent pursuant to Section 11.2(b) concurrently with such termination.
(g) The Company shall be permitted to comply with Rule 14d-9, Rule 14e-2 or Item 1012 of Regulation M-A promulgated under the Exchange Act; provided, however, that compliance with such rules and items will in no way limit or modify the effect of such action pursuant to such rules and items would otherwise have under this Agreement.
(h) If the Company Board or any committee thereof takes, agrees or resolves to take any action permitted by this Section 6.3 without the Company, its Subsidiaries or any of its or its Subsidiaries Representatives breaching any of the terms of this Section 6.3, including, but not limited to any of the actions set forth in Section 6.3(c) and Section 6.3(e) above, such action shall not, in any way, constitute a breach of this Agreement by the Company.
Appears in 1 contract
No Solicitation of Acquisition Proposals. (a) The Company During the Pre-Closing Period, the Principal Stockholder agrees that neither it nor the Principal Stockholder shall not, and the Principal Stockholder shall not authorize or permit any of the Principal Stockholder’s officers, directors, or employees to, or authorize any of its Subsidiaries shallAffiliates (other than its portfolio companies), and that it shall direct and use its reasonable best efforts to cause its and its Subsidiaries’ Representatives not stockholders or any investment banker, attorney or other advisor or representative retained by the Principal Stockholder to, directly or indirectly: , (ia) encouragesolicit, initiate, solicit knowingly encourage or take any other action designed to facilitate an Acquisition Proposal otherwise knowingly facilitate, or induce the making, submission or announcement of any Acquisition Proposal or take any other action designed to facilitate or that is likely to result ininquiry, any inquires or the making expression of any interest, proposal or offer that constitutes, or is would reasonably likely be expected to lead to, any an Acquisition Proposal; , (iib) enter into, participate in, maintain or engage in continue any discussions or negotiations regarding, or deliver or make available or furnish to any person Person any nonpublic non-public information with respect to, or take any other action to facilitate the submission regarding, any inquiry, expression of any inquiry interest, proposal or the making of any proposal offer that constitutes constitutes, or may would reasonably be expected to lead to an Acquisition Proposal; (iii) engage in discussions with any person with respect to to, an Acquisition Proposal, except (c) agree to, accept, approve, endorse or recommend (or publicly propose or announce any intention or desire to notify such person as to the existence of these provisions and refer such person to this Agreement; (iv) agree to, accept, approve, endorse or recommend, or propose to approve, endorse, or recommend ) any Acquisition Proposal; , (vd) enter into any letter of intent or similar document or any agreement, commitment or understanding other Contract contemplating or otherwise relating to any Acquisition Proposal; Proposal or (vie) make or authorize any statement, recommendation or solicitation in support of submit any Acquisition ProposalProposal to the vote of the Company Stockholders. The Company agrees that it Principal Stockholder shall immediately terminate cease and shall cause its Subsidiariesto be terminated any and all existing activities, and use its reasonable best efforts to cause its and its Subsidiaries’ Representatives, to terminate, immediately, all current discussions or negotiations (if any) in which any of them may be involved with any third party with respect to an Acquisition Proposal. The Company also shall promptly request that each person which has heretofore executed a confidentiality agreement with it or any of its Subsidiaries or any of its or its Subsidiaries’ Representatives with respect to such person’s consideration of a possible Acquisition Proposal to return promptly or destroy all confidential information heretofore furnished to such person or its Representatives in accordance with the terms of such person’s confidentiality agreement.
(b) Notwithstanding Section 6.3(a) or anything to the contrary that may be contained elsewhere in this Agreement, if, Persons conducted prior to or on the date of the Company Shareholders’ Meeting, the Company or any of its Subsidiaries, or any of their respective Representatives, receives a written Acquisition Proposal from any person, which Acquisition Proposal did not result from a breach of Section 6.3(a) and appears, on its face to be bona fide, and the Company Board (or any committee thereof) determines in good faith, after consultation with its financial advisor (which may be its existing Financial Advisor or any affiliate thereof), that such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal, then, subject to its compliance with this Section 6.3 and after giving notice to Parent, the Company or its Representatives may (i) furnish information with respect to the Company to the person who has made such Acquisition Proposal, or any of its Representatives, pursuant to a confidentiality agreement containing confidentiality provisions not materially less restrictive than those contained in the Confidentiality Agreement; provided that such information has previously been provided to Parent or is provided to Parent substantially concurrently with the time it is provided to such person or its Representatives, and (ii) participate in discussions and negotiations with such person regarding such Acquisition Proposal. The Company shall advise Parent orally and in writing of the receipt of any Acquisition Proposal, or any inquiry that could reasonably be expected to lead to an Acquisition Proposal (in each case within two (2) Business Days of receipt thereof), specifying the material terms and conditions thereof and the identity of the person making such Acquisition Proposal or inquiry (as the case may be) and the Company shall use its reasonable best efforts to provide to Parent a copy of all written materials provided to the Company or any of its Subsidiaries in connection with any such Acquisition Proposal not later than 48 hours after the receipt of same by the Company or any of its Subsidiaries and, in order to be able to do so, 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 such information to Parent. The Company shall notify Parent (within forty-eight hours) orally and in writing of any material modifications to the financial or other material terms of any such Acquisition Proposal or inquiry and shall provide to Parent, within that same timeframe, a copy of all written materials subsequently provided to or by the Company or any Subsidiary in connection with any such Acquisition Proposal.
(c) Neither the Company Board nor any committee thereof shall withdraw, modify or amend, or propose to withdraw, modify or amend, in a manner adverse to Parent, the Company Board Recommendation or resolve to do so; provided, however, that notwithstanding the foregoing, the Company Board, or any committee thereof, may withdraw, or modify or amend in a manner adverse to the Parent, the Company Board Recommendation and if it takes such action, it also may terminate its efforts to hold, and cancel or postpone, the Company Shareholders’ Meeting, in the event that the Company receives a Superior Proposal and the Company Board, or any committee thereof, determines in good faith, after consultation with its outside legal counsel (which may be its current outside legal counsel), that failure to take such actions could result in a breach of the Company Board’s fiduciary obligations under Governing Law.
(d) In addition to the obligations set forth in Sections 6.3(a) and 6.3(b), the Company shall (i) advise Parent as promptly as practicable (and in any event within 24 hours) following the commencement of any discussions or negotiations Agreement with respect to any Acquisition Proposal and Proposal. If, during the material terms and conditions that are Pre-Closing Period, the subject Principal Stockholder receives (in his, her, or its capacity as such) any inquiry, proposal or offer of the nature described in this Section 4, the Principal Stockholder shall, within one (1) Business Day after such receipt, notify Buyer of such discussions inquiry, proposal or negotiations and (ii) keep Parent reasonably informed of the status and material details (including material amendments) with respect offer, including, subject to the information previously provided, pursuant to this Section 6.3(d), by the Company confidentiality obligations in connection with any such Acquisition Proposal.
(e) The Company Board (or any committee thereof) may, after the date of this Agreement and prior to effect on the date of the Company Shareholders’ Meeting, terminate this Merger Agreement to enter into an agreement with respect to such Superior Proposal, but only if:
(i) such Superior Proposal did not result from a breach by the Company of its covenants contained in Section 6.3 hereof;
(ii) the Company Board (or any committee thereof) shall have first provided prior written notice to Parent that it is prepared to terminate this Agreement to enter into an agreement with respect to a Superior Proposal, which notice shall attach the most current version of any written agreement relating to the transaction that constitutes such Superior Proposal; and
(iii) Parent does not make, within five (5) Business Days after the receipt of the notice referred to in clause (ii) of this Section 6.3(e), a binding, written and complete (including any schedules or exhibits) proposal that the Company Board (or any committee thereof) determines in good faith, after consultation with its financial advisor (which may be its current Financial Advisor or any affiliate thereof), is more favorable to the shareholders of the Company as such Superior Proposal and which, by its terms, may be accepted at any time within five (5) Business Days following such five (5) Business Day period.
(f) In the event of any termination of this Agreement by the Company pursuant to Section 6.3(e), the Company shall pay, as a condition to such termination, the termination fee to Parent pursuant to Section 11.2(b) concurrently with such termination.
(g) The Company shall be permitted to comply with Rule 14d-9, Rule 14e-2 or Item 1012 of Regulation M-A promulgated under the Exchange Act; provided, however, that compliance with such rules and items will in no way limit or modify the effect of such action pursuant to such rules and items would otherwise have under this Agreement.
(h) If the Company Board or any committee thereof takes, agrees or resolves to take any action permitted by this Section 6.3 without binding on the Company, its Subsidiaries or any the identity of its or its Subsidiaries Representatives breaching any of the other party and the terms of this Section 6.3such inquiry, including, but not limited to any of the actions set forth in Section 6.3(c) and Section 6.3(e) above, such action shall not, in any way, constitute a breach of this Agreement by the Companyproposal or offer.
Appears in 1 contract
No Solicitation of Acquisition Proposals. (a) The Company agrees that neither it nor From the date of this Agreement until the earlier of the Closing or the termination of this Agreement, each of the Sellers shall not, and shall cause its Affiliates and its respective employees, members, managers, agents and representatives, including any investment banker, attorney or accountant retained by either Seller or any of its Subsidiaries shallAffiliates, and that it shall direct and use its reasonable best efforts to cause its and its Subsidiaries’ Representatives not to, directly or indirectly: indirectly through another Person, (i) encouragesolicit, initiate, solicit entertain, consider, encourage, accept or take otherwise facilitate any other action designed to facilitate an Acquisition Proposal inquiries (including by way of furnishing any non-public information or the making, submission or announcement of any Acquisition Proposal or take any other action designed to facilitate or that is likely to result in, any inquires otherwise) or the making of any inquiry, proposal or offer that constitutes, from any Person which constitutes an Acquisition Proposal (or is reasonably likely to lead to, any Acquisition Proposal; (ii) participate or engage in any discussions or negotiations regarding, or furnish to any person any nonpublic information with respect to, or take any other action to facilitate the submission of any inquiry or the making of any proposal that constitutes or may would reasonably be expected to lead to an Acquisition Proposal; (iii) engage in discussions with any person with respect to an Acquisition Proposal, except to notify such person as to the existence of these provisions and refer such person to this Agreement; (iv) approve, endorse or recommend, or propose to approve, endorse, or recommend any Acquisition Proposal; (v) enter into any letter of intent or similar document or any agreement, commitment or understanding contemplating or otherwise relating to any Acquisition Proposal; or (viii) make or authorize participate in any statement, recommendation or solicitation in support of any Acquisition Proposal. The Company agrees that it shall immediately terminate and shall cause its Subsidiaries, and use its reasonable best efforts to cause its and its Subsidiaries’ Representatives, to terminate, immediately, all current discussions or negotiations (if any) in which any of them may be involved with any third party with respect to regarding an Acquisition Proposal. The Company also shall promptly request that each person which has heretofore executed a confidentiality agreement with it For purposes of this Agreement, “Acquisition Proposal” means any direct or indirect inquiry, proposal or offer (or any of its Subsidiaries improvement, restatement, amendment, renewal or reiteration thereof) relating to any of its direct or its Subsidiaries’ Representatives with respect to such person’s consideration indirect (A) acquisition or purchase of a possible Acquisition Proposal majority of the membership interests of or other equity interest in either of the Sellers, (B) a merger, consolidation or other business combination transaction involving the Sellers, unless the surviving or resulting entity has agreed to return promptly assume all of the obligations of each of the Sellers under this Agreement, or destroy all confidential information heretofore furnished to such person (C) sale of any portion of the assets of the Fishers Distribution Center or its Representatives the Transferred Assets (other than sales of Products in accordance with the terms ordinary course of such person’s confidentiality agreementbusiness) of the Sellers, other than the transactions contemplated by this Agreement.
(b) Notwithstanding Section 6.3(aSellers shall promptly (but in any event within one Business Day) or anything to notify the contrary that may be contained elsewhere in this Agreement, if, prior to the date of the Company Shareholders’ Meeting, the Company or any of its Subsidiaries, or any of their respective Representatives, receives a written Acquisition Proposal from any person, which Acquisition Proposal did not result from a breach of Section 6.3(a) and appears, on its face to be bona fide, and the Company Board (or any committee thereof) determines in good faith, after consultation with its financial advisor (which may be its existing Financial Advisor or any affiliate thereof), that such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal, then, subject to its compliance with this Section 6.3 and after giving notice to Parent, the Company or its Representatives may (i) furnish information with respect to the Company to the person who has made such Acquisition Proposal, or any of its Representatives, pursuant to a confidentiality agreement containing confidentiality provisions not materially less restrictive than those contained in the Confidentiality Agreement; provided that such information has previously been provided to Parent or is provided to Parent substantially concurrently with the time it is provided to such person or its Representatives, and (ii) participate in discussions and negotiations with such person regarding such Acquisition Proposal. The Company shall advise Parent Purchaser orally and in writing of any Acquisition Proposal or any inquiry regarding the receipt making of any Acquisition Proposal, or any inquiry that could reasonably be expected to lead to an Acquisition Proposal (indicating, in each case within two (2) Business Days of receipt thereof)connection with such notice, specifying the material terms and conditions thereof and the identity name of the person Person making such Acquisition Proposal or inquiry (as the case may be) and the Company shall use its reasonable best efforts to provide to Parent a copy of all written materials provided to the Company or any of its Subsidiaries in connection with any such Acquisition Proposal not later than 48 hours after the receipt of same by the Company or any of its Subsidiaries and, in order to be able to do so, the Company agrees that it terms and its Subsidiaries will not enter into any confidentiality agreement with any person subsequent to the date hereof which prohibits the Company from providing such information to Parent. The Company shall notify Parent (within forty-eight hours) orally and in writing of any material modifications to the financial or other material terms conditions of any such Acquisition Proposal or inquiry and shall provide to Parent, within that same timeframe, a copy of all written materials subsequently provided to or by the Company or any Subsidiary in connection with any such Acquisition Proposalinquiry.
(c) Neither the Company Board nor any committee thereof shall withdraw, modify or amend, or propose to withdraw, modify or amend, in a manner adverse to Parent, the Company Board Recommendation or resolve to do so; provided, however, that notwithstanding the foregoing, the Company Board, or any committee thereof, may withdraw, or modify or amend in a manner adverse to the Parent, the Company Board Recommendation and if it takes such action, it also may terminate its efforts to hold, and cancel or postpone, the Company Shareholders’ Meeting, in the event that the Company receives a Superior Proposal and the Company Board, or any committee thereof, determines in good faith, after consultation with its outside legal counsel (which may be its current outside legal counsel), that failure to take such actions could result in a breach of the Company Board’s fiduciary obligations under Governing Law.
(d) In addition to the obligations set forth in Sections 6.3(a) and 6.3(b), the Company shall (i) advise Parent as promptly as practicable (and in any event within 24 hours) following the commencement of any discussions or negotiations with respect to any Acquisition Proposal and the material terms and conditions that are the subject of such discussions or negotiations and (ii) keep Parent reasonably informed of the status and material details (including material amendments) with respect to the information previously provided, pursuant to this Section 6.3(d), by the Company in connection with any such Acquisition Proposal.
(e) The Company Board (or any committee thereof) may, after the date of this Agreement and prior to the date of the Company Shareholders’ Meeting, terminate this Agreement to enter into an agreement with respect to such Superior Proposal, but only if:
(i) such Superior Proposal did not result from a breach by the Company of its covenants contained in Section 6.3 hereof;
(ii) the Company Board (or any committee thereof) shall have first provided prior written notice to Parent that it is prepared to terminate this Agreement to enter into an agreement with respect to a Superior Proposal, which notice shall attach the most current version of any written agreement relating to the transaction that constitutes such Superior Proposal; and
(iii) Parent does not make, within five (5) Business Days after the receipt of the notice referred to in clause (ii) of this Section 6.3(e), a binding, written and complete (including any schedules or exhibits) proposal that the Company Board (or any committee thereof) determines in good faith, after consultation with its financial advisor (which may be its current Financial Advisor or any affiliate thereof), is more favorable to the shareholders of the Company as such Superior Proposal and which, by its terms, may be accepted at any time within five (5) Business Days following such five (5) Business Day period.
(f) In the event of any termination of this Agreement by the Company pursuant to Section 6.3(e), the Company shall pay, as a condition to such termination, the termination fee to Parent pursuant to Section 11.2(b) concurrently with such termination.
(g) The Company shall be permitted to comply with Rule 14d-9, Rule 14e-2 or Item 1012 of Regulation M-A promulgated under the Exchange Act; provided, however, that compliance with such rules and items will in no way limit or modify the effect of such action pursuant to such rules and items would otherwise have under this Agreement.
(h) If the Company Board or any committee thereof takes, agrees or resolves to take any action permitted by this Section 6.3 without the Company, its Subsidiaries or any of its or its Subsidiaries Representatives breaching any of the terms of this Section 6.3, including, but not limited to any of the actions set forth in Section 6.3(c) and Section 6.3(e) above, such action shall not, in any way, constitute a breach of this Agreement by the Company.
Appears in 1 contract
No Solicitation of Acquisition Proposals. (a) The Company agrees that neither it nor any Until the earlier of the Closing or the termination of this Agreement in accordance with its Subsidiaries shallterms, Sellers shall not, and that it shall direct and use its reasonable best efforts to cause its and its Subsidiaries’ each of their Representatives not to, directly or indirectly: , (ia) encouragesolicit, initiate, solicit knowingly facilitate or knowingly encourage, or take any action to solicit, initiate, knowingly facilitate or knowingly encourage any inquiries, announcements or communications relating to, or the making of any submission, proposal or offer that constitutes or that would reasonably be expected to lead to, an Acquisition Proposal, (b) enter into, participate in, maintain or continue any discussions or negotiations relating to, any Acquisition Proposal with any Person other than Buyer, (b) furnish to any Person other than Buyer any information that Sellers believe or should reasonably know would be used for the purposes of formulating any inquiry, expression of interest, proposal or offer relating to an Acquisition Proposal, or take any other action designed to facilitate an Acquisition Proposal or the makingregarding any inquiry, submission or announcement expression of any Acquisition Proposal or take any other action designed to facilitate or that is likely to result ininterest, any inquires or the making of any proposal or offer that constitutes, or is reasonably likely to lead to, any Acquisition Proposal; (ii) participate or engage in any discussions or negotiations regarding, or furnish to any person any nonpublic information with respect to, or take any other action to facilitate the submission of any inquiry or the making of any proposal that constitutes or may would reasonably be expected to lead to to, an Acquisition Proposal; Proposal or (iiid) engage in discussions with any person with respect to an Acquisition Proposal, except to notify such person as to the existence of these provisions and refer such person to this Agreement; (iv) approve, endorse or recommend, or propose to approve, endorse, or recommend accept any Acquisition Proposal; (v) Proposal or enter into any letter of intent or similar document or any agreement, commitment arrangement or understanding contemplating providing for the consummation of any transaction contemplated by any Acquisition Proposal or otherwise relating to any Acquisition Proposal; or (vi) make or authorize any statement, recommendation or solicitation in support of any Acquisition Proposal. The Company agrees that it shall immediately terminate and shall cause its Subsidiaries, and use its reasonable best efforts to cause its and its Subsidiaries’ Representatives, to terminate, immediately, all current discussions or negotiations (if any) in which any of them may be involved with any third party with respect to an Acquisition Proposal. The Company also shall promptly request that each person which has heretofore executed a confidentiality agreement with it or any of its Subsidiaries or any of its or its Subsidiaries’ Representatives with respect to such person’s consideration of a possible Acquisition Proposal to return promptly or destroy all confidential information heretofore furnished to such person or its Representatives in accordance with the terms of such person’s confidentiality agreement.
(b) Notwithstanding Section 6.3(a) or anything to the contrary that may be contained elsewhere in this Agreement, if, prior to the date of the Company Shareholders’ Meeting, the Company or any of its Subsidiaries, or any of their respective Representatives, receives a written Acquisition Proposal from any person, which Acquisition Proposal did not result from a breach of Section 6.3(a) and appears, on its face to be bona fide, and the Company Board (or any committee thereof) determines in good faith, after consultation with its financial advisor (which may be its existing Financial Advisor or any affiliate thereof), that such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal, then, subject to its compliance with this Section 6.3 and after giving notice to Parent, the Company or its Representatives may (i) furnish information with respect to the Company to the person who has made such Acquisition Proposal, or any of its Representatives, pursuant to a confidentiality agreement containing confidentiality provisions not materially less restrictive than those contained in the Confidentiality Agreement; provided that such information has previously been provided to Parent or is provided to Parent substantially concurrently with the time it is provided to such person or its Representatives, and (ii) participate in discussions and negotiations with such person regarding such Acquisition Proposal. The Company shall advise Parent orally and in writing of the receipt of any Acquisition Proposal, or any inquiry that could reasonably be expected to lead to an Acquisition Proposal (in each case within two (2) Business Days of receipt thereof), specifying the material terms and conditions thereof and the identity of the person making such Acquisition Proposal or inquiry (as the case may be) and the Company shall use its reasonable best efforts to provide to Parent a copy of all written materials provided to the Company or any of its Subsidiaries in connection with any such Acquisition Proposal not later than 48 hours after the receipt of same by the Company or any of its Subsidiaries and, in order to be able to do so, 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 such information to Parent. The Company shall notify Parent (within forty-eight hours) orally and in writing of any material modifications to the financial or other material terms of any such Acquisition Proposal or inquiry and shall provide to Parent, within that same timeframe, a copy of all written materials subsequently provided to or by the Company or any Subsidiary in connection with any such Acquisition Proposal.
(c) Neither the Company Board nor any committee thereof shall withdraw, modify or amend, or propose to withdraw, modify or amend, in a manner adverse to Parent, the Company Board Recommendation or resolve to do so; provided, however, that notwithstanding if the foregoingBankruptcy Court has not entered the Plan Confirmation Order by the End Date, subject to Section 9.2(b), the Company Board, or any committee thereof, may withdraw, or modify or amend in a manner adverse to the Parent, the Company Board Recommendation and if it takes such action, it also may terminate its efforts to hold, and cancel or postpone, the Company Shareholders’ Meeting, in the event that the Company receives a Superior Proposal and the Company Board, or any committee thereof, determines in good faith, after consultation with its outside legal counsel (which may be its current outside legal counsel), that failure to take such actions could result in a breach of the Company Board’s fiduciary obligations under Governing Law.
(d) In addition to the obligations foregoing restrictions set forth in Sections 6.3(a) this Section 6.6 shall expire and 6.3(b)Sellers shall be permitted to solicit Acquisition Proposals. Sellers shall, the Company and shall (i) advise Parent as promptly as practicable (cause each of their Representatives to, immediately cease and in cause to be terminated any event within 24 hours) following the commencement of any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement with respect to any Acquisition Proposal Proposal, including suspending such Persons’ access to any electronic or physical data room and requesting the material terms and conditions that are the subject return of such discussions or negotiations and (ii) keep Parent reasonably informed of the status and material details (including material amendments) with respect to the all confidential information previously provided, pursuant to this Section 6.3(d), by the Company in connection with any such Acquisition Proposal.
(e) The Company Board (or any committee thereof) may, after the date of this Agreement and prior to the date of the Company Shareholders’ Meeting, terminate this Agreement to enter into an agreement with respect distributed to such Superior Proposal, but only if:
(i) such Superior Proposal did not result from a breach by the Company of its covenants contained in Section 6.3 hereof;
(ii) the Company Board (or any committee thereof) shall have first provided prior written notice to Parent that it is prepared to terminate this Agreement to enter into an agreement with respect to a Superior Proposal, which notice shall attach the most current version of any written agreement relating to the transaction that constitutes such Superior Proposal; and
(iii) Parent does not make, within five (5) Business Days after the receipt of the notice referred to in clause (ii) of this Section 6.3(e), a binding, written and complete (including any schedules or exhibits) proposal that the Company Board (or any committee thereof) determines in good faith, after consultation with its financial advisor (which may be its current Financial Advisor or any affiliate thereof), is more favorable to the shareholders of the Company as such Superior Proposal and which, by its terms, may be accepted at any time within five (5) Business Days following such five (5) Business Day periodPersons.
(f) In the event of any termination of this Agreement by the Company pursuant to Section 6.3(e), the Company shall pay, as a condition to such termination, the termination fee to Parent pursuant to Section 11.2(b) concurrently with such termination.
(g) The Company shall be permitted to comply with Rule 14d-9, Rule 14e-2 or Item 1012 of Regulation M-A promulgated under the Exchange Act; provided, however, that compliance with such rules and items will in no way limit or modify the effect of such action pursuant to such rules and items would otherwise have under this Agreement.
(h) If the Company Board or any committee thereof takes, agrees or resolves to take any action permitted by this Section 6.3 without the Company, its Subsidiaries or any of its or its Subsidiaries Representatives breaching any of the terms of this Section 6.3, including, but not limited to any of the actions set forth in Section 6.3(c) and Section 6.3(e) above, such action shall not, in any way, constitute a breach of this Agreement by the Company.
Appears in 1 contract
No Solicitation of Acquisition Proposals. (a) The Company agrees that neither it nor and its Subsidiaries shall immediately cease any and all existing discussions (other than to state the Company’s obligations set forth in this Section 5.2) or negotiations with any Persons (other than Parent, Merger Sub and their respective Representatives) conducted heretofore with respect to any Acquisition Proposal. The Company will promptly, following the execution of this Agreement, request the return or destruction (unless limited by the applicable agreement) of all confidential information provided by or on behalf of the Company to all Persons who have had any discussions or negotiations or who have entered into confidentiality agreements with the Company pertaining to any Acquisition Proposal or any similar business combination and otherwise enforce its rights under such confidentiality agreements.
(b) Subject to Section 5.2(c), at all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Section 8.1 and the Effective Time, the Company and its Subsidiaries shall not, and they shall not authorize or knowingly permit their respective directors, officers or other employees, controlled Affiliates, or any investment banker (in its capacity as an investment banker), attorney, accountant, consultant, advisor or other authorized agent or representative retained by any of its Subsidiaries shallthem (collectively, and that it shall direct and use its reasonable best efforts to cause its and its Subsidiaries’ Representatives not “Representatives”) to, directly or indirectly: , (i) encouragesolicit, initiate, solicit knowingly facilitate or take any other action designed to facilitate an Acquisition Proposal or intentionally induce the making, submission or announcement of any of, assist or knowingly encourage, an Acquisition Proposal or take any other action designed to facilitate or that is likely to result in, any inquires or the making of any proposal or offer that constitutes, or is reasonably likely to lead to, any Acquisition Proposal; (ii) participate or engage in any discussions or negotiations regarding, or furnish to any person any nonpublic information with respect to, or take any other action to facilitate the submission of any inquiry or the making of any proposal that constitutes or may would reasonably be expected to lead to an Acquisition Proposal; , (iiiii) engage other than in discussions the ordinary course of business, consistent with past practice, and not with the intent of inducing or encouraging any person with respect to an Acquisition Proposal, except furnish to notify such person as to the existence of these provisions and refer such person to this Agreement; any Person (iv) approveother than Parent, endorse or recommend, or propose to approve, endorse, or recommend any Acquisition Proposal; (v) enter into any letter of intent or similar document Merger Sub or any agreement, commitment designees of Parent or understanding contemplating Merger Sub) or otherwise waive restrictions on the use of any non-public information relating to any Acquisition Proposal; or (vi) make or authorize any statement, recommendation or solicitation in support of any Acquisition Proposal. The Company agrees that it shall immediately terminate and shall cause its Subsidiaries, and use its reasonable best efforts to cause its and its Subsidiaries’ Representatives, to terminate, immediately, all current discussions or negotiations (if any) in which any of them may be involved with any third party with respect to an Acquisition Proposal. The Company also shall promptly request that each person which has heretofore executed a confidentiality agreement with it or any of its Subsidiaries or any of its or its Subsidiaries’ Representatives with respect to such person’s consideration of a possible Acquisition Proposal to return promptly or destroy all confidential information heretofore furnished to such person or its Representatives in accordance with the terms of such person’s confidentiality agreement.
(b) Notwithstanding Section 6.3(a) or anything to the contrary that may be contained elsewhere in this Agreement, if, prior to the date of the Company Shareholders’ Meeting, the Company or any of its Subsidiaries, or afford to any Person (other than Parent, Merger Sub or any designees of Parent or Merger Sub) access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries, (iii) participate or engage in discussions (other than discussions with respect to the Company’s obligations set forth in this Section 5.2) or negotiations with any Person (other than Parent, Merger Sub and their respective Representatives) with respect to an Acquisition Proposal, receives a written (iv) approve, endorse or recommend an Acquisition Proposal, or (v) enter into any Contract contemplating or otherwise relating to an Acquisition Proposal from (other than an Acceptable Confidentiality Agreement as contemplated by Section 5.2(c)(ii)).
(c) Notwithstanding anything to the contrary set forth in this Section 5.2 or elsewhere in this Agreement, prior to the Acceptance Time, the Company, the Company’s Subsidiaries, the Company’s Representatives and the Company’s Subsidiaries’ Representatives may, subject to compliance with this Section 5.2(c),
(i) participate or engage in discussions or negotiations with any person, which Person or group of Persons that has made a bona fide Acquisition Proposal did after the date of this Agreement not result arising from a breach of this Section 6.3(a) and appears, on its face to be bona fide, and 5.2 that the Company Company’s Board of Directors (or any committee thereof) determines in good faith, after consultation with its financial advisor (which may be its existing Financial Advisor or any affiliate thereof)and outside legal counsel, that such Acquisition Proposal either constitutes or could would reasonably be expected to lead to a Superior Proposal, then, subject to its compliance with this Section 6.3 and after giving notice to Parent, the Company or its Representatives may (i) furnish information with respect to the Company to the person who has made such Acquisition Proposal, or any of its Representatives, pursuant to a confidentiality agreement containing confidentiality provisions not materially less restrictive than those contained in the Confidentiality Agreement; provided that such information has previously been provided to Parent or is provided to Parent substantially concurrently with the time it is provided to such person or its Representatives, and Proposal and/or (ii) participate in discussions and negotiations with such person regarding such Acquisition Proposal. The Company shall advise Parent orally and in writing furnish to any Person or group of the receipt of any Acquisition Proposal, or any inquiry Persons that could reasonably be expected to lead to an has made a bona fide Acquisition Proposal (in each case within two (2) Business Days of receipt thereof), specifying the material terms and conditions thereof and the identity of the person making such Acquisition Proposal or inquiry (as the case may be) and the Company shall use its reasonable best efforts to provide to Parent a copy of all written materials provided to the Company or any of its Subsidiaries in connection with any such Acquisition Proposal not later than 48 hours after the receipt of same by the Company or any of its Subsidiaries and, in order to be able to do so, 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 such information to Parent. The Company shall notify Parent (within forty-eight hours) orally and in writing of any material modifications to the financial or other material terms of any such Acquisition Proposal or inquiry and shall provide to Parent, within that same timeframe, a copy of all written materials subsequently provided to or by the Company or any Subsidiary in connection with any such Acquisition Proposal.
(c) Neither the Company Board nor any committee thereof shall withdraw, modify or amend, or propose to withdraw, modify or amend, in a manner adverse to Parent, the Company Board Recommendation or resolve to do so; provided, however, that notwithstanding the foregoing, the Company Board, or any committee thereof, may withdraw, or modify or amend in a manner adverse to the Parent, the Company Board Recommendation and if it takes such action, it also may terminate its efforts to hold, and cancel or postpone, the Company Shareholders’ Meeting, in the event that the Company receives a Superior Proposal and the Company Board, or any committee thereof, determines in good faith, after consultation with its outside legal counsel (which may be its current outside legal counsel), that failure to take such actions could result in a breach of the Company Board’s fiduciary obligations under Governing Law.
(d) In addition to the obligations set forth in Sections 6.3(a) and 6.3(b), the Company shall (i) advise Parent as promptly as practicable (and in any event within 24 hours) following the commencement of any discussions or negotiations with respect to any Acquisition Proposal and the material terms and conditions that are the subject of such discussions or negotiations and (ii) keep Parent reasonably informed of the status and material details (including material amendments) with respect to the information previously provided, pursuant to this Section 6.3(d), by the Company in connection with any such Acquisition Proposal.
(e) The Company Board (or any committee thereof) may, after the date of this Agreement and prior to not arising from a breach of this Section 5.2 that the date Board of Directors of the Company Shareholders’ Meeting, terminate this Agreement to enter into an agreement with respect to such Superior Proposal, but only if:
(i) such Superior Proposal did not result from a breach by the Company of its covenants contained in Section 6.3 hereof;
(ii) the Company Board (or any committee thereof) shall have first provided prior written notice to Parent that it is prepared to terminate this Agreement to enter into an agreement with respect to a Superior Proposal, which notice shall attach the most current version of any written agreement relating to the transaction that constitutes such Superior Proposal; and
(iii) Parent does not make, within five (5) Business Days after the receipt of the notice referred to in clause (ii) of this Section 6.3(e), a binding, written and complete (including any schedules or exhibits) proposal that the Company Board (or any committee thereof) determines in good faith, after consultation with its financial advisor and outside legal counsel, either constitutes or would reasonably be expected to lead to a Superior Proposal, any non-public information relating to the Company and/or any of its Subsidiaries and/or afford to any such Person or group of Persons access to the business, properties, assets, books, records or other nonpublic information, or to any personnel, of the Company and/or any of its Subsidiaries, in each case under this clause (which may be its current Financial Advisor or any affiliate thereof), is ii) pursuant to a confidentiality agreement no more favorable to the shareholders maker of the Company as such Superior Acquisition Proposal and whichno less favorable to the Company and its Subsidiaries than the Confidentiality Agreement (provided, by that such confidentiality agreement shall not in any way restrict the Company from complying with its termsobligations under this Agreement, may be accepted at any time within five (5) Business Days following such five (5) Business Day period.
(f) In including with respect to the event of any termination of Company’s disclosure obligations to Parent under this Agreement by the Company pursuant with respect to Section 6.3(eany Acquisition Proposal) (an “Acceptable Confidentiality Agreement”), the Company shall pay, as a condition to such termination, the termination fee to Parent pursuant to Section 11.2(b) concurrently with such termination.
(g) The Company copy of which shall be permitted provided, promptly after its execution, for informational purposes only, to comply with Rule 14d-9, Rule 14e-2 or Item 1012 of Regulation M-A promulgated under the Exchange ActParent; provided, however, that compliance with such rules and items will in no way limit the case of any action taken pursuant to the preceding clauses (i) or modify (ii), (A) the effect Company shall as promptly as reasonably practicable (and, in any event, within forty-eight (48) hours following receipt of such action pursuant Acquisition Proposal) give Parent written notice of such Acquisition Proposal and, if applicable, provide Parent with copies of the Acquisition Proposal and any draft agreements relating to the Acquisition Proposal (or, if written copies are unavailable, a summary of the material terms thereof), and (B) promptly after furnishing any nonpublic information or giving access to such rules Person or group of Persons, the Company shall give such access and items would otherwise have under this Agreementfurnish such nonpublic information to Parent (which may be by posting such information to a “virtual data room” available to Parent and its Representatives) to the extent such access or information has not been previously furnished to Parent.
(hd) If the Company Board becomes aware of any receipt by the Company of (i) any Acquisition Proposal, (ii) any request for information that would reasonably be expected to lead to an Acquisition Proposal, or (iii) any committee thereof takesinquiry with respect to, agrees or resolves which would reasonably be expected to take lead to, any action permitted by this Section 6.3 without Acquisition Proposal, the CompanyCompany shall (A) reasonably promptly (and in any event, its Subsidiaries or any of its or its Subsidiaries Representatives breaching any within forty-eight (48) hours) notify Parent of the terms and conditions of this Section 6.3such Acquisition Proposal, includingrequest or inquiry, but not limited and the identity of the Person or group of Persons making any such Acquisition Proposal, request or inquiry and (B) provide to Parent as soon as reasonably practicable (and in any event within forty-eight (48) hours) after receipt or delivery thereof copies of any written material (including draft agreements) relating to the material terms and conditions of any Acquisition Proposal exchanged between the Company (or its Representatives), on the one hand, and the Person making such Acquisition Proposal (or its Representatives), on the other hand. The Company shall keep Parent reasonably informed of any material change in the status or terms of any such Acquisition Proposal, request or inquiry as promptly as reasonably practicable and shall provide any material updates to any of the actions set forth in Section 6.3(c) and Section 6.3(edocuments provided under clause (B) above, such action shall not, in any way, constitute a breach of this Agreement by the Company.
Appears in 1 contract
Samples: Merger Agreement (Cascade Corp)
No Solicitation of Acquisition Proposals. (a) The Company agrees that neither it nor any of and its Subsidiaries shallshall immediately cease any and all existing discussions (other than to state the Company’s obligations set forth in this Section 5.2) or negotiations with any Persons conducted heretofore with respect to any Acquisition Proposal.
(b) Subject to Section 5.2(c), at all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Section 8.1 and the Effective Time, the Company and its Subsidiaries shall not, and that it they shall direct and use its reasonable best efforts to cause their respective directors, officers or other employees, controlled affiliates, or any investment banker (in its and its Subsidiaries’ Representatives capacity as an investment banker), attorney or other authorized agent or representative retained by any of them (collectively, “Representatives”) not to, directly or indirectly: , (i) encouragesolicit, initiate, solicit knowingly facilitate or take any other action designed to facilitate an Acquisition Proposal or knowingly induce the making, submission or announcement of any of, or knowingly encourage or assist, an Acquisition Proposal or take any other action designed to facilitate or that is likely to result in, any inquires or the making of any proposal or offer that constitutes, or is reasonably likely to lead to, any Acquisition Proposal; (ii) participate or engage in any discussions or negotiations regarding, or furnish to any person any nonpublic information with respect to, or take any other action to facilitate the submission of any inquiry or the making of any proposal that constitutes or may would reasonably be expected to lead to an Acquisition Proposal; , (iiiii) engage other than in discussions the ordinary course of business, consistent with past practice, and not with the intent of inducing or encouraging any person with respect to an Acquisition Proposal, except furnish to notify such person as to the existence of these provisions and refer such person to this Agreement; any Person (iv) approveother than Parent, endorse or recommend, or propose to approve, endorse, or recommend any Acquisition Proposal; (v) enter into any letter of intent or similar document Merger Sub or any agreement, commitment designees of Parent or understanding contemplating Merger Sub) or otherwise waive restrictions on the use of any non-public information relating to any Acquisition Proposal; or (vi) make or authorize any statement, recommendation or solicitation in support of any Acquisition Proposal. The Company agrees that it shall immediately terminate and shall cause its Subsidiaries, and use its reasonable best efforts to cause its and its Subsidiaries’ Representatives, to terminate, immediately, all current discussions or negotiations (if any) in which any of them may be involved with any third party with respect to an Acquisition Proposal. The Company also shall promptly request that each person which has heretofore executed a confidentiality agreement with it or any of its Subsidiaries or any of its or its Subsidiaries’ Representatives with respect to such person’s consideration of a possible Acquisition Proposal to return promptly or destroy all confidential information heretofore furnished to such person or its Representatives in accordance with the terms of such person’s confidentiality agreement.
(b) Notwithstanding Section 6.3(a) or anything to the contrary that may be contained elsewhere in this Agreement, if, prior to the date of the Company Shareholders’ Meeting, the Company or any of its Subsidiaries, or afford to any of their respective RepresentativesPerson (other than Parent, receives a written Acquisition Proposal from any person, which Acquisition Proposal did not result from a breach of Section 6.3(a) and appears, on its face to be bona fide, and the Company Board (Merger Sub or any committee thereofdesignees of Parent or Merger Sub) determines in good faith, after consultation with its financial advisor (which may be its existing Financial Advisor or any affiliate thereof), that such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal, then, subject to its compliance with this Section 6.3 and after giving notice to Parent, the Company or its Representatives may (i) furnish information with respect access to the Company to the person who has made such Acquisition Proposalbusiness, properties, assets, books, records or other non-public information, or to any personnel, of its Representatives, pursuant to a confidentiality agreement containing confidentiality provisions not materially less restrictive than those contained in the Confidentiality Agreement; provided that such information has previously been provided to Parent or is provided to Parent substantially concurrently with the time it is provided to such person or its Representatives, and (ii) participate in discussions and negotiations with such person regarding such Acquisition Proposal. The Company shall advise Parent orally and in writing of the receipt of any Acquisition Proposal, or any inquiry that could reasonably be expected to lead to an Acquisition Proposal (in each case within two (2) Business Days of receipt thereof), specifying the material terms and conditions thereof and the identity of the person making such Acquisition Proposal or inquiry (as the case may be) and the Company shall use its reasonable best efforts to provide to Parent a copy of all written materials provided to the Company or any of its Subsidiaries Subsidiaries, (iii) participate or engage in connection discussions (other than discussions with respect to the Company’s obligations set forth in this Section 5.2) or negotiations with any such Person (other than Parent, Merger Sub and their respective Representatives) with respect to an Acquisition Proposal not later than 48 hours after the receipt of same by the Company Proposal, (iv) approve, endorse or any of its Subsidiaries andrecommend an Acquisition Proposal, in order or (v) subject to be able to do soSection 5.2(c), the Company agrees that it and its Subsidiaries will not enter into any confidentiality agreement with any person subsequent Contract contemplating or otherwise relating to the date hereof which prohibits the Company from providing such information to Parent. The Company shall notify Parent an Acquisition Transaction (within forty-eight hours) orally and in writing of any material modifications to the financial or other material terms of any such Acquisition Proposal or inquiry and shall provide to Parent, within that same timeframe, a copy of all written materials subsequently provided to or than an Acceptable Confidentiality Agreement as contemplated by the Company or any Subsidiary in connection with any such Acquisition ProposalSection 5.2(c)(ii)).
(c) Neither the Company Board nor any committee thereof shall withdraw, modify or amend, or propose to withdraw, modify or amend, in a manner adverse to Parent, the Company Board Recommendation or resolve to do so; provided, however, that notwithstanding the foregoing, the Company Board, or any committee thereof, may withdraw, or modify or amend in a manner adverse Notwithstanding anything to the Parent, the Company Board Recommendation and if it takes such action, it also may terminate its efforts to hold, and cancel or postpone, the Company Shareholders’ Meeting, in the event that the Company receives a Superior Proposal and the Company Board, or any committee thereof, determines in good faith, after consultation with its outside legal counsel (which may be its current outside legal counsel), that failure to take such actions could result in a breach of the Company Board’s fiduciary obligations under Governing Law.
(d) In addition to the obligations contrary set forth in Sections 6.3(a) this Section 5.2 or elsewhere in this Agreement, prior to the Acceptance Time, the Company, the Company’s Subsidiaries, the Company’s Representatives and 6.3(bthe Company’s Subsidiaries’ Representatives may, subject to compliance with this Section 5.2(c), the Company shall (i) advise Parent as promptly as practicable (and participate or engage in any event within 24 hours) following the commencement of any discussions or negotiations with respect to any Person or group of Persons that has made a bona fide, unsolicited Acquisition Proposal and the material terms and conditions that are the subject of such discussions or negotiations and (ii) keep Parent reasonably informed of the status and material details (including material amendments) with respect to the information previously provided, pursuant to this Section 6.3(d), by the Company in connection with any such Acquisition Proposal.
(e) The Company Board (or any committee thereof) may, after the date of this Agreement and prior to the date of the Company Shareholders’ Meeting, terminate this Agreement to enter into an agreement with respect to such Superior Proposal, but only if:
(i) such Superior Proposal did not result from a breach by the Company of its covenants contained in Section 6.3 hereof;
(ii) the Company Board (or any committee thereof) shall have first provided prior written notice to Parent that it is prepared to terminate this Agreement to enter into an agreement with respect to a Superior Proposal, which notice shall attach the most current version of any written agreement relating to the transaction that constitutes such Superior Proposal; and
(iii) Parent does not make, within five (5) Business Days after the receipt of the notice referred to in clause (ii) of this Section 6.3(e), a binding, written and complete (including any schedules or exhibits) proposal that the Company Board (or any committee thereof) determines in good faith, after consultation with its financial advisor and outside legal counsel, either constitutes or would reasonably be expected to lead to a Superior Proposal and/or (which may be its current Financial Advisor ii) furnish to any Person or group of Persons that has made a bona fide, unsolicited Acquisition Proposal after the date of this Agreement that the Company Board (or any affiliate committee thereof)) determines in good faith, is more favorable after consultation with its financial advisor and outside legal counsel, either constitutes or would reasonably be expected to lead to a Superior Proposal, any non-public information relating to the shareholders Company and/or any of its Subsidiaries and/or afford to any such Person or group of Persons access to the business, properties, assets, books, records or other non public information, or to any personnel, of the Company as such Superior Proposal and whichand/or any of its Subsidiaries, by its terms, may be accepted at any time within five in each case under this clause (5ii) Business Days following such five (5) Business Day period.
(f) In the event of any termination of this Agreement by the Company pursuant to Section 6.3(e), the Company shall pay, as a condition to such termination, the termination fee to Parent pursuant to Section 11.2(b) concurrently with such termination.
(g) The Company shall be permitted to comply with Rule 14d-9, Rule 14e-2 or Item 1012 of Regulation M-A promulgated under the Exchange Actan Acceptable Confidentiality Agreement; provided, however, that compliance in the case of any action taken pursuant to the preceding clauses (i) or (ii), (A) the Company Board shall have determined in good faith, after consultation with its financial advisor and outside legal counsel, that the failure to take such rules and items will action would reasonably be expected to be inconsistent with the Company Board’s fiduciary duties to the Stockholders under applicable Law, (B) the Company shall as promptly as reasonably practicable (and, in no way limit or modify the effect any event, within forty-eight (48) hours following receipt of such action pursuant Acquisition Proposal) give Parent written notice of the identity of such Person or group of Persons (unless prohibited by the Acceptable Confidentiality Agreement) and, if applicable, providing Parent with copies of the Acquisition Proposal and any draft agreements relating to the Acquisition Proposal (or, if written copies are unavailable, a summary of the material terms thereof), and (C) promptly after furnishing any non public information or giving access to such rules Person or group of Persons, the Company shall give such access and items would otherwise have under this Agreementfurnish such non public information to Parent (which may be by posting such information to a “virtual data room” available to Parent and its Representatives) to the extent such access or information has not been previously furnished to Parent.
(hd) If the Company Board becomes aware of any receipt by the Company of (i) any Acquisition Proposal, (ii) any request for information that would reasonably be expected to lead to an Acquisition Proposal, or (iii) any committee thereof takesinquiry with respect to, or which would reasonably be expected to lead to, any Acquisition Proposal, the Company shall reasonably promptly (and in any event, within forty-eight (48) hours) notify Parent of the terms and conditions of such Acquisition Proposal, request or inquiry, and the identity of the Person or group of Persons (unless prohibited by an Acceptable Confidentiality Agreement) making any such Acquisition Proposal, request or inquiry. The Company shall keep Parent reasonably informed of any material change in the status or terms of any such Acquisition Proposal, request or inquiry as promptly as reasonably practicable (and in any event within twenty-four (24) hours after receipt or delivery thereof).
(e) The Company agrees that in the event any of its Subsidiaries or resolves to take Representatives takes any action permitted which, if taken by this Section 6.3 without the Company, its Subsidiaries or any of its or its Subsidiaries Representatives breaching any of the terms of this Section 6.3, including, but not limited to any of the actions set forth in Section 6.3(c) and Section 6.3(e) above, such action shall not, in any way, would constitute a breach of this Section 5.2, the Company shall be deemed to be in breach of this Section 5.2; provided, however, that any breach of the Support Agreement by any counterparty thereto (in such Person’s capacity as a stockholder of the Company) shall not constitute a breach by a Representative or a deemed breach by the Company hereunder.
Appears in 1 contract
Samples: Merger Agreement (KSW Inc)
No Solicitation of Acquisition Proposals. (a) The From the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with Section 7.1, except as set forth below, the Company agrees that neither it nor any of its Subsidiaries shall, and that it shall direct and use its reasonable best efforts to cause its and its Subsidiaries’ Representatives not to, directly or indirectly: , and shall not authorize or permit any of the other Acquired Corporations or any Representative of any of the Acquired Corporations directly or indirectly to (i) solicit, initiate or knowingly encourage, initiate, solicit induce or take any other action designed to facilitate an Acquisition Proposal or the making, submission or announcement of any Acquisition Proposal or take any other action designed to facilitate or that is likely to result in, any inquires or the making of any proposal or offer that constitutes, or is would reasonably likely be expected to lead to, any directly to an Acquisition Proposal; , (ii) participate or engage in furnish any discussions or negotiations regarding, or furnish information regarding any of the Acquired Corporations to any person any nonpublic information Person in connection with respect to, or take any other action in response to facilitate the submission of any an Acquisition Proposal or an inquiry or the making indication of any proposal interest that constitutes or may would reasonably be expected to lead to an Acquisition Proposal; , (iii) engage in discussions or negotiations with any person Person with respect to an any Acquisition Proposal, except to notify such person as to the existence of these provisions and refer such person to this Agreement; (iv) approve, endorse or recommend, or propose to approve, endorse, or recommend any Acquisition Proposal; Proposal or (v) enter into any letter of intent or similar document or any agreementAcquisition Agreement; provided, commitment or understanding contemplating or otherwise relating to any Acquisition Proposal; or (vi) make or authorize any statementhowever, recommendation or solicitation in support of any Acquisition Proposal. The Company agrees that it shall immediately terminate and shall cause its Subsidiaries, and use its reasonable best efforts to cause its and its Subsidiaries’ Representatives, to terminate, immediately, all current discussions or negotiations (if any) in which any of them may be involved with any third party with respect to an Acquisition Proposal. The Company also shall promptly request that each person which has heretofore executed a confidentiality agreement with it or any of its Subsidiaries or any of its or its Subsidiaries’ Representatives with respect to such person’s consideration of a possible Acquisition Proposal to return promptly or destroy all confidential information heretofore furnished to such person or its Representatives in accordance with the terms of such person’s confidentiality agreement.
(b) Notwithstanding Section 6.3(a) or anything to the contrary that may be contained elsewhere in this Agreement, if, prior to the date adoption of this Agreement by the Required Company Stockholder Vote, this Section 5.3(a) shall not prohibit the Company Shareholders’ Meeting, from furnishing nonpublic information regarding the Company or any of its SubsidiariesAcquired Corporations to, or entering into discussions with, any of their respective Representatives, receives Person in response to a written Superior Proposal or an Acquisition Proposal from any person, which Acquisition Proposal did not result from a breach of Section 6.3(a) and appears, on its face to be bona fide, and that the Company Board reasonably believes is likely to result in a Superior Proposal if (or 1) neither the Company nor any committee thereofRepresentative of any of the Acquired Corporations shall have breached any provision of this Section 5.3, (2) determines the Company Board concludes in good faith, after consultation with its financial advisor (which may be its existing Financial Advisor or any affiliate thereof)outside legal counsel, that such action is required in order for the Company Board to comply with its fiduciary obligations to the Company’s stockholders under applicable Law, (3) at least 24 hours prior to furnishing any such nonpublic information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person, the material terms thereof and any term sheet, letter of intent or similar document and draft acquisition agreement or financing documents related thereto and the Company’s intention to furnish nonpublic information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company, and (4) at least 24 hours prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished or made available by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 5.3(a) by the Company.
(b) From and after the date of this Agreement the Company shall promptly (and in no event later than three (3) Business Days after receipt of any Acquisition Proposal constitutes Proposal, any inquiry or could indication of interest that would reasonably be expected to lead to a Superior Proposal, then, subject to its compliance with this Section 6.3 and after giving notice to Parent, the Company or its Representatives may (i) furnish information with respect to the Company to the person who has made such an Acquisition Proposal, or any of its Representatives, pursuant to a confidentiality agreement containing confidentiality provisions not materially less restrictive than those contained in the Confidentiality Agreement; provided that such information has previously been provided to Parent or is provided to Parent substantially concurrently with the time it is provided to such person or its Representatives, and (ii) participate in discussions and negotiations with such person regarding such Acquisition Proposal. The Company shall advise Parent orally and in writing of the receipt of any Acquisition Proposal, Proposal or any inquiry or indication of interest that could would reasonably be expected to lead to an Acquisition Proposal (in each case within two (2) Business Days of receipt thereof), specifying the material terms and conditions thereof and including the identity of the person Person making or submitting such Acquisition Proposal, inquiry, or indication of interest, and the material terms thereof) that is made or submitted by any Person during the Pre-Closing Period, and shall provide Parent with any relevant documentation related thereto, including but not limited to, proposed merger or other acquisition agreements, financing document, letters, or commitments. The Company shall keep Parent reasonably informed with respect to the status of any such Acquisition Proposal, inquiry or indication of interest and any modification or proposed modification thereto.
(c) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which any of the Acquired Corporations is a party, and will use its commercially reasonable efforts to enforce or cause to be enforced each such agreement at the request of Parent. The Company also will promptly request each Person that has executed, within 12 months prior to the date of this Agreement, a confidentiality agreement in connection with its consideration of a possible Acquisition Transaction or equity investment to return or destroy all confidential information heretofore furnished to such Person by or on behalf of any of the Acquired Corporations.
(d) Except as expressly provided by Section 5.3(e), at any time after the date hereof, neither the Company Board nor any committee thereof shall: (i) (A) withhold, withdraw, qualify or modify (or publicly propose or resolve to withhold, withdraw, qualify or modify), in a manner adverse to Parent or Merger Sub, the Board Recommendation, (B) adopt, approve or recommend or propose to adopt, approve or recommend (publicly or otherwise) an Acquisition Proposal, (C) after the public announcement of the submission of an Acquisition Proposal, fail to publicly reaffirm the Board Recommendation within 10 Business Days after Parent so requests in writing, (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 10 Business Days after the commencement of such Acquisition Proposal on a Schedule TO or inquiry (as E) fail to include the case may beBoard Recommendation in the Proxy Statement (any action described in clauses (A) and the Company shall use its reasonable best efforts to provide to Parent through (E), a copy of all written materials provided to “Recommendation Change”); or (ii) cause or permit the Company or any of its Subsidiaries to enter into any Acquisition Agreement.
(e) Notwithstanding anything to the contrary set forth in connection with this Agreement, at any such Acquisition Proposal not later than 48 hours after time prior to obtaining the receipt of same by the Required Company or any of its Subsidiaries and, in order to be able to do soStockholder Vote, the Company agrees may effect a Recommendation Change if the Company Board has received an Acquisition Proposal that it determines in good faith (after consultation with its independent financial advisors and outside legal counsel) constitutes a Superior Proposal and determines in good faith (after consultation with its Subsidiaries will not enter into any confidentiality agreement independent financial advisors and legal counsel) that such action is required in order for the Company Board to comply with any person subsequent its fiduciary obligations to the date hereof which prohibits Company stockholders under applicable Law, provided that (A) the Company from providing such information to Parent. The has not breached any of Section 5.3, (B) the Company shall notify have given Parent at least two (within forty-eight hours2) orally and in writing Business Days’ prior written notice of any material modifications its intention to take such action (which notice shall specify the financial or other material terms and conditions of any such Acquisition Superior Proposal or inquiry and shall provide to Parentthe identity of the party making such Superior Proposal) and, within that same timeframeno later than the time of such notice, provided Parent a copy of all written materials subsequently provided the relevant proposed transaction agreement and other material documents (including but not limited to or any financing documents) with the party making such Superior Proposal, (C) if requested by the Company or any Subsidiary in connection with any such Acquisition Proposal.
(c) Neither the Company Board nor any committee thereof shall withdraw, modify or amend, or propose to withdraw, modify or amend, in a manner adverse to Parent, the Company Board Recommendation or resolve shall have negotiated in good faith with Parent during such two (2) Business Day notice period to do so; provided, however, that notwithstanding the foregoing, the Company Board, or any committee thereof, may withdraw, or modify or amend in a manner adverse enable Parent to propose changes to the Parentterms of this Agreement that would cause such Superior Proposal to no longer constitute a Superior Proposal, (D) the Company Board Recommendation and if it takes such action, it also may terminate its efforts to hold, and cancel or postpone, the Company Shareholders’ Meeting, in the event that the Company receives a Superior Proposal and the Company Board, or any committee thereof, determines shall have considered in good faith, faith (after consultation with its outside legal counsel (which may be its current independent financial advisors and outside legal counsel), any changes to this Agreement proposed by Parent and determined that failure the Superior Proposal would continue to take constitute a Superior Proposal if such actions could result changes were to be given effect, and (E) in a breach the event of the Company Board’s fiduciary obligations under Governing Law.
(d) In addition any change to the obligations set forth in Sections 6.3(a) and 6.3(b), the Company shall (i) advise Parent as promptly as practicable (and in any event within 24 hours) following the commencement financial terms of any discussions or negotiations with respect to any Acquisition Proposal and the material terms and conditions that are the subject of such discussions or negotiations and (ii) keep Parent reasonably informed of the status and material details (including material amendments) with respect to the information previously provided, pursuant to this Section 6.3(d), by the Company in connection with any such Acquisition Proposal.
(e) The Company Board (or any committee thereof) may, after the date of this Agreement and prior to the date of the Company Shareholders’ Meeting, terminate this Agreement to enter into an agreement with respect to such Superior Proposal, but only if:
(i) such Superior Proposal did not result from a breach by the Company of its covenants contained shall, in Section 6.3 hereof;
(ii) the Company Board (or any committee thereof) shall each case, have first provided prior written notice delivered to Parent that it is prepared to terminate this Agreement to enter into an agreement with respect to a Superior Proposal, which additional notice shall attach the most current version of any written agreement relating to the transaction that constitutes such Superior Proposal; and
(iii) Parent does not make, within five (5) Business Days after the receipt and copies of the notice referred to in clause relevant proposed transaction agreement and other material documents and the two (ii) of this Section 6.3(e), a binding, written and complete (including any schedules or exhibits) proposal that the Company Board (or any committee thereof) determines in good faith, after consultation with its financial advisor (which may be its current Financial Advisor or any affiliate thereof), is more favorable to the shareholders of the Company as such Superior Proposal and which, by its terms, may be accepted at any time within five (5) Business Days following such five (52) Business Day periodnotice period shall have recommenced.
(f) In the event of any termination of Nothing contained in this Agreement by Section 5.3 shall be deemed to prohibit the Company pursuant to Section 6.3(e), or the Company shall payBoard from (i) taking and disclosing to its stockholders a position contemplated by Rule 14d-9 or Rule 14e-2(a) under the Exchange Act, as a condition to such termination, or (ii) making any “stop-look-and-listen” communication or similar communication of the termination fee to Parent pursuant to Section 11.2(btype contemplated by Rule 14d-9(f) concurrently with such termination.
(g) The Company shall be permitted to comply with Rule 14d-9, Rule 14e-2 or Item 1012 of Regulation M-A promulgated under the Exchange Act; provided, however, that compliance with such rules and items will in no way limit event shall the Company or modify the effect of such action pursuant to such rules and items would otherwise have under this Agreement.
(h) If the Company Board or any committee thereof takestake, agrees agree or resolves resolve to take any action permitted prohibited by this Section 6.3 without the Company5.3(e) (it being understood that a “stop, its Subsidiaries look and listen” letter or any of its or its Subsidiaries Representatives breaching any similar communication of the terms of this Section 6.3, including, but type contemplated by Rule 14d-9(f) under the Exchange Act shall not limited to any be deemed a modification of the actions set forth in Section 6.3(c) Company Board’s approval or recommendation of the Merger and Section 6.3(e) above, such action shall not, in any way, constitute a breach of this Agreement by the CompanyAgreement).
Appears in 1 contract
Samples: Merger Agreement ('Mktg, Inc.')
No Solicitation of Acquisition Proposals. (a) The Company agrees that neither it nor and its Subsidiaries shall immediately cease any and all existing discussions (other than to state the Company's obligations set forth in this Section 5.2) or negotiations with any Persons (other than Parent, Merger Sub and their respective Representatives) conducted heretofore with respect to any Acquisition Proposal. The Company will promptly, following the execution of this Agreement, request the return or destruction (unless limited by the applicable agreement) of all confidential information provided by or on behalf of the Company to all Persons who have had any discussions or negotiations or who have entered into confidentiality agreements with the Company pertaining to any Acquisition Proposal or any similar business combination and otherwise enforce its rights under such confidentiality agreements.
(b) Subject to Section 5.2(c), at all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Section 8.1 and the Effective Time, the Company and its Subsidiaries shall not, and they shall not authorize or knowingly permit their respective directors, officers or other employees, controlled Affiliates, or any investment banker (in its capacity as an investment banker), attorney, accountant, consultant, advisor or other authorized agent or representative retained by any of its Subsidiaries shallthem (collectively, and that it shall direct and use its reasonable best efforts to cause its and its Subsidiaries’ Representatives not "Representatives") to, directly or indirectly: , (i) encouragesolicit, initiate, solicit knowingly facilitate or take any other action designed to facilitate an Acquisition Proposal or intentionally induce the making, submission or announcement of any of, assist or knowingly encourage, an Acquisition Proposal or take any other action designed to facilitate or that is likely to result in, any inquires or the making of any proposal or offer that constitutes, or is reasonably likely to lead to, any Acquisition Proposal; (ii) participate or engage in any discussions or negotiations regarding, or furnish to any person any nonpublic information with respect to, or take any other action to facilitate the submission of any inquiry or the making of any proposal that constitutes or may would reasonably be expected to lead to an Acquisition Proposal; , (iiiii) engage other than in discussions the ordinary course of business, consistent with past practice, and not with the intent of inducing or encouraging any person with respect to an Acquisition Proposal, except furnish to notify such person as to the existence of these provisions and refer such person to this Agreement; any Person (iv) approveother than Parent, endorse or recommend, or propose to approve, endorse, or recommend any Acquisition Proposal; (v) enter into any letter of intent or similar document Merger Sub or any agreement, commitment designees of Parent or understanding contemplating Merger Sub) or otherwise waive restrictions on the use of any non-public information relating to any Acquisition Proposal; or (vi) make or authorize any statement, recommendation or solicitation in support of any Acquisition Proposal. The Company agrees that it shall immediately terminate and shall cause its Subsidiaries, and use its reasonable best efforts to cause its and its Subsidiaries’ Representatives, to terminate, immediately, all current discussions or negotiations (if any) in which any of them may be involved with any third party with respect to an Acquisition Proposal. The Company also shall promptly request that each person which has heretofore executed a confidentiality agreement with it or any of its Subsidiaries or any of its or its Subsidiaries’ Representatives with respect to such person’s consideration of a possible Acquisition Proposal to return promptly or destroy all confidential information heretofore furnished to such person or its Representatives in accordance with the terms of such person’s confidentiality agreement.
(b) Notwithstanding Section 6.3(a) or anything to the contrary that may be contained elsewhere in this Agreement, if, prior to the date of the Company Shareholders’ Meeting, the Company or any of its Subsidiaries, or afford to any Person (other than Parent, Merger Sub or any designees of Parent or Merger Sub) access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries, (iii) participate or engage in discussions (other than discussions with respect to the Company's obligations set forth in this Section 5.2) or negotiations with any Person (other than Parent, Merger Sub and their respective Representatives) with respect to an Acquisition Proposal, receives a written (iv) approve, endorse or recommend an Acquisition Proposal, or (v) enter into any Contract contemplating or otherwise relating to an Acquisition Proposal from (other than an Acceptable Confidentiality Agreement as contemplated by Section 5.2(c)(ii)).
(c) Notwithstanding anything to the contrary set forth in this Section 5.2 or elsewhere in this Agreement, prior to the Acceptance Time, the Company, the Company's Subsidiaries, the Company's Representatives and the Company's Subsidiaries' Representatives may, subject to compliance with this Section 5.2(c),
(i) participate or engage in discussions or negotiations with any person, which Person or group of Persons that has made a bona fide Acquisition Proposal did after the date of this Agreement not result arising from a breach of this Section 6.3(a) and appears, on its face to be bona fide, and 5.2 that the Company Company's Board of Directors (or any committee thereof) determines in good faith, after consultation with its financial advisor (which may be its existing Financial Advisor or any affiliate thereof)and outside legal counsel, that such Acquisition Proposal either constitutes or could would reasonably be expected to lead to a Superior Proposal, then, subject to its compliance with this Section 6.3 and after giving notice to Parent, the Company or its Representatives may (i) furnish information with respect to the Company to the person who has made such Acquisition Proposal, or any of its Representatives, pursuant to a confidentiality agreement containing confidentiality provisions not materially less restrictive than those contained in the Confidentiality Agreement; provided that such information has previously been provided to Parent or is provided to Parent substantially concurrently with the time it is provided to such person or its Representatives, and Proposal and/or (ii) participate in discussions and negotiations with such person regarding such Acquisition Proposal. The Company shall advise Parent orally and in writing furnish to any Person or group of the receipt of any Acquisition Proposal, or any inquiry Persons that could reasonably be expected to lead to an has made a bona fide Acquisition Proposal (in each case within two (2) Business Days of receipt thereof), specifying the material terms and conditions thereof and the identity of the person making such Acquisition Proposal or inquiry (as the case may be) and the Company shall use its reasonable best efforts to provide to Parent a copy of all written materials provided to the Company or any of its Subsidiaries in connection with any such Acquisition Proposal not later than 48 hours after the receipt of same by the Company or any of its Subsidiaries and, in order to be able to do so, 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 such information to Parent. The Company shall notify Parent (within forty-eight hours) orally and in writing of any material modifications to the financial or other material terms of any such Acquisition Proposal or inquiry and shall provide to Parent, within that same timeframe, a copy of all written materials subsequently provided to or by the Company or any Subsidiary in connection with any such Acquisition Proposal.
(c) Neither the Company Board nor any committee thereof shall withdraw, modify or amend, or propose to withdraw, modify or amend, in a manner adverse to Parent, the Company Board Recommendation or resolve to do so; provided, however, that notwithstanding the foregoing, the Company Board, or any committee thereof, may withdraw, or modify or amend in a manner adverse to the Parent, the Company Board Recommendation and if it takes such action, it also may terminate its efforts to hold, and cancel or postpone, the Company Shareholders’ Meeting, in the event that the Company receives a Superior Proposal and the Company Board, or any committee thereof, determines in good faith, after consultation with its outside legal counsel (which may be its current outside legal counsel), that failure to take such actions could result in a breach of the Company Board’s fiduciary obligations under Governing Law.
(d) In addition to the obligations set forth in Sections 6.3(a) and 6.3(b), the Company shall (i) advise Parent as promptly as practicable (and in any event within 24 hours) following the commencement of any discussions or negotiations with respect to any Acquisition Proposal and the material terms and conditions that are the subject of such discussions or negotiations and (ii) keep Parent reasonably informed of the status and material details (including material amendments) with respect to the information previously provided, pursuant to this Section 6.3(d), by the Company in connection with any such Acquisition Proposal.
(e) The Company Board (or any committee thereof) may, after the date of this Agreement and prior to not arising from a breach of this Section 5.2 that the date Board of Directors of the Company Shareholders’ Meeting, terminate this Agreement to enter into an agreement with respect to such Superior Proposal, but only if:
(i) such Superior Proposal did not result from a breach by the Company of its covenants contained in Section 6.3 hereof;
(ii) the Company Board (or any committee thereof) shall have first provided prior written notice to Parent that it is prepared to terminate this Agreement to enter into an agreement with respect to a Superior Proposal, which notice shall attach the most current version of any written agreement relating to the transaction that constitutes such Superior Proposal; and
(iii) Parent does not make, within five (5) Business Days after the receipt of the notice referred to in clause (ii) of this Section 6.3(e), a binding, written and complete (including any schedules or exhibits) proposal that the Company Board (or any committee thereof) determines in good faith, after consultation with its financial advisor and outside legal counsel, either constitutes or would reasonably be expected to lead to a Superior Proposal, any non-public information relating to the Company and/or any of its Subsidiaries and/or afford to any such Person or group of Persons access to the business, properties, assets, books, records or other nonpublic information, or to any personnel, of the Company and/or any of its Subsidiaries, in each case under this clause (which may be its current Financial Advisor or any affiliate thereof), is ii) pursuant to a confidentiality agreement no more favorable to the shareholders maker of the Company as such Superior Acquisition Proposal and whichno less favorable to the Company and its Subsidiaries than the Confidentiality Agreement (provided, by that such confidentiality agreement shall not in any way restrict the Company from complying with its termsobligations under this Agreement, may be accepted at any time within five (5) Business Days following such five (5) Business Day period.
(f) In including with respect to the event of any termination of Company's disclosure obligations to Parent under this Agreement by the Company pursuant with respect to Section 6.3(eany Acquisition Proposal) (an "Acceptable Confidentiality Agreement"), the Company shall pay, as a condition to such termination, the termination fee to Parent pursuant to Section 11.2(b) concurrently with such termination.
(g) The Company copy of which shall be permitted provided, promptly after its execution, for informational purposes only, to comply with Rule 14d-9, Rule 14e-2 or Item 1012 of Regulation M-A promulgated under the Exchange ActParent; provided, however, that compliance with such rules and items will in no way limit the case of any action taken pursuant to the preceding clauses (i) or modify (ii), (A) the effect Company shall as promptly as reasonably practicable (and, in any event, within forty-eight (48) hours following receipt of such action pursuant Acquisition Proposal) give Parent written notice of such Acquisition Proposal and, if applicable, provide Parent with copies of the Acquisition Proposal and any draft agreements relating to the Acquisition Proposal (or, if written copies are unavailable, a summary of the material terms thereof), and (B) promptly after furnishing any nonpublic information or giving access to such rules Person or group of Persons, the Company shall give such access and items would otherwise have under this Agreementfurnish such nonpublic information to Parent (which may be by posting such information to a "virtual data room" available to Parent and its Representatives) to the extent such access or information has not been previously furnished to Parent.
(hd) If the Company Board becomes aware of any receipt by the Company of (i) any Acquisition Proposal, (ii) any request for information that would reasonably be expected to lead to an Acquisition Proposal, or (iii) any committee thereof takesinquiry with respect to, agrees or resolves which would reasonably be expected to take lead to, any action permitted by this Section 6.3 without Acquisition Proposal, the CompanyCompany shall (A) reasonably promptly (and in any event, its Subsidiaries or any of its or its Subsidiaries Representatives breaching any within forty-eight (48) hours) notify Parent of the terms and conditions of this Section 6.3such Acquisition Proposal, includingrequest or inquiry, but not limited and the identity of the Person or group of Persons making any such Acquisition Proposal, request or inquiry and (B) provide to Parent as soon as reasonably practicable (and in any event within forty-eight (48) hours) after receipt or delivery thereof copies of any written material (including draft agreements) relating to the material terms and conditions of any Acquisition Proposal exchanged between the Company (or its Representatives), on the one hand, and the Person making such Acquisition Proposal (or its Representatives), on the other hand. The Company shall keep Parent reasonably informed of any material change in the status or terms of any such Acquisition Proposal, request or inquiry as promptly as reasonably practicable and shall provide any material updates to any of the actions set forth in Section 6.3(c) and Section 6.3(edocuments provided under clause (B) above, such action shall not, in any way, constitute a breach of this Agreement by the Company.
Appears in 1 contract
Samples: Merger Agreement (Cascade Corp)
No Solicitation of Acquisition Proposals. (a) The Company agrees that neither it nor Sentio Parties and their Subsidiaries will immediately cease any and all existing discussions (other than to state the Sentio Parties’ obligations set forth in this Section 5.15) or negotiations with any Persons conducted heretofore with respect to any Acquisition Proposal.
(b) Subject to Section 5.15(c), at all times during the period commencing with the Effective Date and continuing until the earlier to occur of its the termination of this Agreement pursuant to Section 7.1(a)(iii) and the thirtieth day following the Effective Date, the Sentio Parties and their Subsidiaries shallwill not, and that it shall they will direct and use its reasonable best efforts to cause their respective directors, officers or other employees, controlled affiliates, or any investment banker (in its and its Subsidiaries’ Representatives capacity as an investment banker), attorney or other authorized agent or representative retained by any of them (collectively, "Representatives") not to, directly or indirectly: , (i) encouragesolicit, initiate, solicit knowingly facilitate or take any other action designed to facilitate an Acquisition Proposal or knowingly induce the making, submission or announcement of any of, or knowingly encourage or assist, an Acquisition Proposal or take any other action designed to facilitate or that is likely to result in, any inquires or the making of any proposal or offer that constitutes, or is reasonably likely to lead to, any Acquisition Proposal; (ii) participate or engage in any discussions or negotiations regarding, or furnish to any person any nonpublic information with respect to, or take any other action to facilitate the submission of any inquiry or the making of any proposal that constitutes or may would reasonably be expected to lead to an Acquisition Proposal; , (ii) other than in the ordinary course of business, consistent with past practice, and not with the intent of inducing or encouraging any Acquisition Proposal, furnish to any Person (other than the Investor or any designees of the Investor) or waive restrictions on the use of any non-public information relating to the Sentio Parties or any of their Subsidiaries, or afford to any Person (other than the Investor or any designees of the Investor) access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Sentio Parties or any of their Subsidiaries, (iii) participate or engage in discussions (other than discussions with respect to the Sentio Parties’ obligations set forth in this Section 5.15) or negotiations with any person Person (other than the Investor and its Representatives) with respect to an Acquisition Proposal, except to notify such person as to the existence of these provisions and refer such person to this Agreement; (iv) approve, endorse or recommendrecommend an Acquisition Proposal, or propose to approve, endorse, or recommend any Acquisition Proposal; (v) enter into any letter of intent or similar document or any agreement, commitment or understanding Contract contemplating or otherwise relating to any Acquisition Proposal; or (vi) make or authorize any statement, recommendation or solicitation in support of any Acquisition Proposal. The Company agrees that it shall immediately terminate and shall cause its Subsidiaries, and use its reasonable best efforts to cause its and its Subsidiaries’ Representatives, to terminate, immediately, all current discussions or negotiations (if any) in which any of them may be involved with any third party with respect to an Acquisition Proposal. The Company also shall promptly request that each person which has heretofore executed a confidentiality agreement with it or any of its Subsidiaries or any of its or its Subsidiaries’ Representatives with respect to such person’s consideration of a possible Acquisition Proposal to return promptly or destroy all confidential information heretofore furnished to such person or its Representatives in accordance with the terms of such person’s confidentiality agreementTransaction (other than an Acceptable Confidentiality Agreement as contemplated by Section 5.15(c)(ii).
(bc) Notwithstanding Section 6.3(a) or anything to the contrary that may be contained set forth in this Section 5.14 or elsewhere in this Agreement, if, prior to the date of thirtieth day following the Company Shareholders’ MeetingEffective Date, the Company Sentio Parties, their Subsidiaries and their Representatives may, subject to compliance with this Section 5.15(c), (i) participate or engage in discussions or negotiations with any Person or group of its Subsidiaries, or any of their respective Representatives, receives Persons that has made a written Acquisition Proposal from any person, which Acquisition Proposal did not result from a breach of Section 6.3(a) and appears, on its face to be bona fide, and unsolicited Acquisition Proposal after the Company date of this Agreement that the Board (or any committee thereof) determines in good faith, after consultation with its financial advisor (which may be its existing Financial Advisor or any affiliate thereof)and outside legal counsel, that such Acquisition Proposal either constitutes or could would reasonably be expected to lead to a Superior Proposal, then, subject to its compliance with this Section 6.3 and after giving notice to Parent, the Company or its Representatives may (i) furnish information with respect to the Company to the person who has made such Acquisition Proposal, or any of its Representatives, pursuant to a confidentiality agreement containing confidentiality provisions not materially less restrictive than those contained in the Confidentiality Agreement; provided that such information has previously been provided to Parent or is provided to Parent substantially concurrently with the time it is provided to such person or its Representatives, and Proposal and/or (ii) participate in discussions and negotiations with such person regarding such Acquisition Proposal. The Company shall advise Parent orally and in writing furnish to any Person or group of the receipt of any Acquisition ProposalPersons that has made a bona fide, or any inquiry that could reasonably be expected to lead to an unsolicited Acquisition Proposal (in each case within two (2) Business Days of receipt thereof), specifying the material terms and conditions thereof and the identity of the person making such Acquisition Proposal or inquiry (as the case may be) and the Company shall use its reasonable best efforts to provide to Parent a copy of all written materials provided to the Company or any of its Subsidiaries in connection with any such Acquisition Proposal not later than 48 hours after the receipt of same by the Company or any of its Subsidiaries and, in order to be able to do so, 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 such information to Parent. The Company shall notify Parent (within forty-eight hours) orally and in writing of any material modifications to the financial or other material terms of any such Acquisition Proposal or inquiry and shall provide to Parent, within that same timeframe, a copy of all written materials subsequently provided to or by the Company or any Subsidiary in connection with any such Acquisition Proposal.
(c) Neither the Company Board nor any committee thereof shall withdraw, modify or amend, or propose to withdraw, modify or amend, in a manner adverse to Parent, the Company Board Recommendation or resolve to do so; provided, however, that notwithstanding the foregoing, the Company Board, or any committee thereof, may withdraw, or modify or amend in a manner adverse to the Parent, the Company Board Recommendation and if it takes such action, it also may terminate its efforts to hold, and cancel or postpone, the Company Shareholders’ Meeting, in the event that the Company receives a Superior Proposal and the Company Board, or any committee thereof, determines in good faith, after consultation with its outside legal counsel (which may be its current outside legal counsel), that failure to take such actions could result in a breach of the Company Board’s fiduciary obligations under Governing Law.
(d) In addition to the obligations set forth in Sections 6.3(a) and 6.3(b), the Company shall (i) advise Parent as promptly as practicable (and in any event within 24 hours) following the commencement of any discussions or negotiations with respect to any Acquisition Proposal and the material terms and conditions that are the subject of such discussions or negotiations and (ii) keep Parent reasonably informed of the status and material details (including material amendments) with respect to the information previously provided, pursuant to this Section 6.3(d), by the Company in connection with any such Acquisition Proposal.
(e) The Company Board (or any committee thereof) may, after the date of this Agreement and prior to the date of the Company Shareholders’ Meeting, terminate this Agreement to enter into an agreement with respect to such Superior Proposal, but only if:
(i) such Superior Proposal did not result from a breach by the Company of its covenants contained in Section 6.3 hereof;
(ii) the Company Board (or any committee thereof) shall have first provided prior written notice to Parent that it is prepared to terminate this Agreement to enter into an agreement with respect to a Superior Proposal, which notice shall attach the most current version of any written agreement relating to the transaction that constitutes such Superior Proposal; and
(iii) Parent does not make, within five (5) Business Days after the receipt of the notice referred to in clause (ii) of this Section 6.3(e), a binding, written and complete (including any schedules or exhibits) proposal that the Company Board (or any committee thereof) determines in good faith, after consultation with its financial advisor and outside legal counsel, either constitutes or would reasonably be expected to lead to a Superior Proposal, any non-public information relating to the Sentio Parties and/or any of their Subsidiaries and/or afford to any such Person or group of Persons access to the business, properties, assets, books, records or other non public information, or to any personnel, of the Sentio Parties and/or any of their Subsidiaries, in each case under this clause (which may be its current Financial Advisor ii) pursuant to an Acceptable Confidentiality Agreement; provided, however, that in the case of any action taken pursuant to the preceding clauses (i) or any affiliate thereof(ii), is more favorable (A) the Board shall have determined in good faith, after consultation with its financial advisor and outside legal counsel, that the failure to take such action would reasonably be expected to violate the Board's fiduciary duties to the shareholders holders of the Common Stock under applicable Law, (B) the Company shall as promptly as reasonably practicable give Investor written notice of the identity of such Person or group of Persons (unless prohibited by the Acceptable Confidentiality Agreement) and, if applicable, providing Investor with a summary of the material terms of the Acquisition Proposal, and (C) promptly after furnishing any non public information or giving access to such Person or group of Persons, the Company shall give such access and furnish such non public information to Investor to the extent such access or information has not been previously furnished to Investor.
(d) If the Sentio Parties become aware of any receipt by any of the Sentio Parties of (i) any Acquisition Proposal, (ii) any request for information that would reasonably be expected to lead to an Acquisition Proposal, or (iii) any inquiry with respect to, or which would reasonably be expected to lead to, any Acquisition Proposal, the Sentio Parties shall reasonably promptly notify Investor of the terms and conditions of such Acquisition Proposal, request or inquiry, and the identity of the Person or group of Persons (unless prohibited by an Acceptable Confidentiality Agreement) making any such Acquisition Proposal, request or inquiry. The Sentio Parties shall keep Investor reasonably informed of any material change in the status or terms of any such Acquisition Proposal, request or inquiry as promptly as reasonably practicable.
(e) Except as set forth in this Section 5.15(e), the Board shall not (i) authorize, adopt, approve, recommend or declare advisable, or propose to authorize, adopt, approve, recommend or declare advisable (publicly or otherwise), an Acquisition Proposal, or (ii) cause or permit any of the the Sentio Parties to enter into any Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, prior to the thirtieth day following the Effective Date, the Board may, if any of the Sentio Parties receives an Acquisition Proposal that the Board determines in good faith (after consultation with its financial advisor and outside legal counsel) constitutes a Superior Proposal, approve, recommend or declare advisable, and authorize any of the Sentio Parties to enter into an Alternative Acquisition Agreement with respect to, such Superior Proposal and whichterminate this Agreement pursuant to Section 7.1(a)(iii) if:
(i) the Board determines in good faith, by after consultation with outside legal counsel, that failure to do so would be expected to be inconsistent with the directors’ duties under applicable Law and the Sentio Parties shall have complied with all of its termsobligations under this Section 5.15;
(ii) the Company and/or the Partnership shall have provided prior written notice to the Investor, may be accepted at any time within least five days in advance, that it intends to terminate this Agreement pursuant to Section 7.1(a)(iii), which notice shall specify the basis for the termination and the material terms of such Superior Proposal;
(5iii) Business Days following after providing such notice and prior to terminating this Agreement pursuant to Section 7.1(a)(iii), the Company and/or the Partnership shall have, and shall have caused their Representatives to, negotiate with the Investor in good faith during such five day period (5to the extent Investor desires to negotiate) Business Day to make such adjustments in the terms and conditions of this Agreement as would permit the Board not to terminate this Agreement pursuant to Section 7.1(a)(iii); and
(iv) the Board shall have considered in good faith any changes to this Agreement offered in writing by Investor no later than 5:00 p.m., New York City time, on the fifth day of such five day period and shall have determined that such Superior Proposal would continue to constitute a Superior Proposal if such changes offered in writing by Investor were to be given effect; provided that, in the event of any material revisions to the Acquisition Proposal that the Board has determined to be a Superior Proposal, the Company and/or the Partnership shall be required to deliver a new written notice to Investor in respect of such modified Acquisition Proposal and to again comply with the requirements of this Section 5.15(e) with respect to such new written notice, except that references to the five day period in clause (iii) shall be deemed references to a forty-eight (48) hour period.
(f) In Nothing contained in this Section 5.15 or elsewhere shall be deemed to prohibit the event Company or the Board or any committee thereof from (i) complying with its disclosure obligations under U.S. federal or state Law with regard to an Acquisition Proposal, including taking and disclosing to its stockholders a position contemplated by Rule 14d-9 or Rule 14e-2(a) under the Exchange Act (or any similar communication to stockholders), (ii) making any “stop-look-and-listen” communication to the stockholders of any termination of this Agreement by the Company pursuant to Section 6.3(e)Rule 14d-9(f) under the Exchange Act (or any similar communications to the stockholders of the Company) or (iii) making any disclosure to its stockholders if, in the Company shall paygood faith judgment of the Board, as failure to do so is reasonably likely to result in a condition to such termination, the termination fee to Parent pursuant to Section 11.2(b) concurrently with such terminationbreach of applicable Law.
(g) The Company the Sentio Parties acknowledge and agree that any violation of the restrictions set forth in this Section 5.15 by any Representatives of the Sentio Parties shall be permitted deemed to comply with Rule 14d-9, Rule 14e-2 or Item 1012 be a breach of Regulation M-A promulgated under this Section 5.15 by the Exchange Act; provided, however, that compliance with such rules and items will in no way limit or modify the effect of such action pursuant to such rules and items would otherwise have under this AgreementSentio Parties.
(h) If the Company Board or any committee thereof takes, agrees or resolves to take any action permitted by As used in this Section 6.3 without the Company, its Subsidiaries or any of its or its Subsidiaries Representatives breaching any of the terms of this Section 6.3, including, but not limited to any of the actions set forth in Section 6.3(c) and Section 6.3(e) above, such action shall not, in any way, constitute a breach of this Agreement by the Company.Agreement:
Appears in 1 contract
Samples: Securities Purchase Agreement (Sentio Healthcare Properties Inc)
No Solicitation of Acquisition Proposals. (a) The Company agrees that neither it nor any of its Subsidiaries shallSeller Parties will not, and that it shall direct will cause their Affiliates not to, and use its reasonable best efforts to will cause its the Seller Parties’ and its Subsidiaries’ their Affiliates respective officers, directors, employees and other Representatives not to, (i) initiate, solicit, encourage or knowingly facilitate, directly or indirectly: (i) encourage, initiateany inquiries, solicit proposals, or take any other action designed to facilitate an Acquisition Proposal offers with respect to, or the makingmaking of, submission any proposal that constitutes or announcement of could reasonably be expected to lead to any Acquisition Proposal or take (ii) (A) engage in negotiations or discussions with, or furnish access to its properties, books and records or provide any other action designed to information or data to, or otherwise cooperate with, knowingly assist, or participate in, facilitate or that is likely to result inencourage any effort by, any inquires Person (or any Representative of a Person) relating to any proposal that constitutes or could reasonably be expected to lead to any Acquisition Proposal, (B) approve, endorse or recommend, or propose publicly to approve, endorse or recommend, any Acquisition Proposal or (C) execute or enter into any letter of intent, agreement in principle, merger agreement, acquisition agreement or other similar agreement relating to any Acquisition Proposal. The Seller Parties shall, and shall cause each of their Representatives to, immediately cease all solicitations, discussions, negotiations and access to non-public information with, to or by any Person (other than the making Buyer) with respect to any proposal that constitutes or could reasonably be expected to lead to any Acquisition Proposal.
(b) The Seller Parent will promptly (and in any event within two (2) Business Days) notify the Buyer orally and in writing of the receipt by the Seller Parent or any of its Affiliates or any of their respective Representatives of any proposal or offer that constitutes, (or is reasonably likely to lead to, any Acquisition Proposal; (ii) participate or engage in any discussions or negotiations regarding, or furnish to any person any nonpublic information inquiry with respect to, or take any other action to facilitate the submission of any inquiry or the making of any proposal thereto) that constitutes or may could reasonably be expected to lead to an Acquisition Proposal; (iii) engage in discussions with , which notice shall include a copy of any person with respect to an Acquisition Proposal, except to notify such person as to the existence of these provisions and refer such person to this Agreement; (iv) approve, endorse written proposal or recommendoffer, or propose to approve, endorse, or recommend any Acquisition Proposal; (v) enter into any letter of intent or similar document or any agreement, commitment or understanding contemplating or otherwise relating to any Acquisition Proposal; or (vi) make or authorize any statement, recommendation or solicitation in support of any Acquisition Proposal. The Company agrees that it shall immediately terminate and shall cause its Subsidiaries, and use its reasonable best efforts to cause its and its Subsidiaries’ Representatives, to terminate, immediately, all current discussions or negotiations (if any) in which any of them may be involved with any third party with respect to an Acquisition Proposal. The Company also shall promptly request that each person which has heretofore executed a confidentiality agreement with it or any of its Subsidiaries or any of its or its Subsidiaries’ Representatives with respect to such person’s consideration of a possible Acquisition Proposal to return promptly or destroy all confidential information heretofore furnished to such person or its Representatives in accordance with the terms of such person’s confidentiality agreement.
(b) Notwithstanding Section 6.3(a) or anything to the contrary that may be contained elsewhere in this Agreement, if, prior to the date of the Company Shareholders’ Meeting, the Company or any of its Subsidiaries, or any of their respective Representatives, receives a written Acquisition Proposal from any person, which Acquisition Proposal did not result from a breach summary of Section 6.3(a) and appears, on its face to be bona fide, and the Company Board (or any committee thereof) determines in good faith, after consultation with its financial advisor (which may be its existing Financial Advisor or any affiliate thereof), that such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal, then, subject to its compliance with this Section 6.3 and after giving notice to Parent, the Company or its Representatives may (i) furnish information with respect to the Company to the person who has made such Acquisition Proposal, or any of its Representatives, pursuant to a confidentiality agreement containing confidentiality provisions not materially less restrictive than those contained in the Confidentiality Agreement; provided that such information has previously been provided to Parent or is provided to Parent substantially concurrently with the time it is provided to such person or its Representatives, and (ii) participate in discussions and negotiations with such person regarding such Acquisition Proposal. The Company shall advise Parent orally and in writing of the receipt of any Acquisition Proposal, or any inquiry that could reasonably be expected to lead to an Acquisition Proposal (in each case within two (2) Business Days of receipt thereof), specifying the material terms and conditions thereof of any unwritten proposal, offer or inquiry and the identity of the person Person(s) making such Acquisition Proposal proposal, offer or inquiry (as the case may be) and the Company shall use its reasonable best efforts to provide to Parent a copy of all written materials provided to the Company or any of its Subsidiaries in connection with any such Acquisition Proposal not later than 48 hours after the receipt of same by the Company or any of its Subsidiaries and, in order to be able to do so, 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 such information to Parent. The Company shall notify Parent (within forty-eight hours) orally and in writing of any material modifications to the financial or other material terms of any such Acquisition Proposal or inquiry and shall provide to Parent, within that same timeframe, a copy of all written materials subsequently provided to or by the Company or any Subsidiary in connection with any such Acquisition Proposalinquiry.
(c) Neither the Company Board nor any committee thereof shall withdraw, modify or amend, or propose to withdraw, modify or amend, in a manner adverse to Parent, the Company Board Recommendation or resolve to do so; provided, however, that notwithstanding the foregoing, the Company Board, or any committee thereof, may withdraw, or modify or amend in a manner adverse to the Parent, the Company Board Recommendation and if it takes such action, it also may terminate its efforts to hold, and cancel or postpone, the Company Shareholders’ Meeting, in the event that the Company receives a Superior Proposal and the Company Board, or any committee thereof, determines in good faith, after consultation with its outside legal counsel (which may be its current outside legal counsel), that failure to take such actions could result in a breach of the Company Board’s fiduciary obligations under Governing Law.
(d) In addition to the obligations set forth in Sections 6.3(a) and 6.3(b), the Company shall (i) advise Parent as promptly as practicable (and in any event within 24 hours) following the commencement of any discussions or negotiations with respect to any Acquisition Proposal and the material terms and conditions that are the subject of such discussions or negotiations and (ii) keep Parent reasonably informed of the status and material details (including material amendments) with respect to the information previously provided, pursuant to this Section 6.3(d), by the Company in connection with any such Acquisition Proposal.
(e) The Company Board (or any committee thereof) may, after the date of this Agreement and prior to the date of the Company Shareholders’ Meeting, terminate this Agreement to enter into an agreement with respect to such Superior Proposal, but only if:
(i) such Superior Proposal did not result from a breach by the Company of its covenants contained in Section 6.3 hereof;
(ii) the Company Board (or any committee thereof) shall have first provided prior written notice to Parent that it is prepared to terminate this Agreement to enter into an agreement with respect to a Superior Proposal, which notice shall attach the most current version of any written agreement relating to the transaction that constitutes such Superior Proposal; and
(iii) Parent does not make, within five (5) Business Days after the receipt of the notice referred to in clause (ii) of this Section 6.3(e), a binding, written and complete (including any schedules or exhibits) proposal that the Company Board (or any committee thereof) determines in good faith, after consultation with its financial advisor (which may be its current Financial Advisor or any affiliate thereof), is more favorable to the shareholders of the Company as such Superior Proposal and which, by its terms, may be accepted at any time within five (5) Business Days following such five (5) Business Day period.
(f) In the event of any termination of this Agreement by the Company pursuant to Section 6.3(e), the Company shall pay, as a condition to such termination, the termination fee to Parent pursuant to Section 11.2(b) concurrently with such termination.
(g) The Company shall be permitted to comply with Rule 14d-9, Rule 14e-2 or Item 1012 of Regulation M-A promulgated under the Exchange Act; provided, however, that compliance with such rules and items will in no way limit or modify the effect of such action pursuant to such rules and items would otherwise have under this Agreement.
(h) If the Company Board or any committee thereof takes, agrees or resolves to take any action permitted by this Section 6.3 without the Company, its Subsidiaries or any of its or its Subsidiaries Representatives breaching any of the terms of this Section 6.3, including, but not limited to any of the actions set forth in Section 6.3(c) and Section 6.3(e) above, such action shall not, in any way, constitute a breach of this Agreement by the Company.
Appears in 1 contract
Samples: Stock Purchase and Sale Agreement (Universal American Corp.)
No Solicitation of Acquisition Proposals. (a) The Company agrees that neither it nor None of the Sellers, the Seller Owners or any of its Subsidiaries their Affiliates shall, and that it the Sellers and the Seller Owners shall direct cause their respective Affiliates, employees, officers, directors, agents, representatives and use its reasonable best efforts subsidiaries (and their employees, officers, directors, agents and representatives) not to cause its (and its Subsidiaries’ Representatives will not authorize any of them to), directly or indirectly: , initiate, solicit, encourage, or facilitate or induce any offer or proposal to (i) encourageinvest in any Seller, initiate, solicit or take any other action designed to facilitate an Acquisition Proposal or the making, submission or announcement of any Acquisition Proposal or take any other action designed to facilitate or that is likely to result in, any inquires or the making of any proposal or offer that constitutes, or is reasonably likely to lead to, any Acquisition Proposal; (ii) acquire any of the Purchased Assets or part of the Business or (iii) acquire any significant interest in any Seller whether by merger, consolidation, recapitalization, reorganization, transfer of assets, grant of license or otherwise (an “Acquisition Proposal”), or effect any such transaction, or participate or engage in any discussions or negotiations regarding, or furnish any information to any person any nonpublic information other Person with respect to, or take agree to or otherwise enter into, any other action Acquisition Proposal. Each Seller and each Seller Owner represents and warrants to facilitate Buyer that each Seller, each Seller Owner and their respective Affiliates have ceased any and all activities, discussions or negotiations with any third parties conducted on or prior to the submission date hereof with respect to any Acquisition Proposal. Each Seller and Seller Owner shall promptly notify Buyer orally and in writing immediately upon receipt of any Acquisition Proposal or any inquiry or request for information relating to the making of any proposal Purchased Assets or the Business that constitutes or may it reasonably be expected to believes could lead to an Acquisition Proposal; (iii) engage in discussions with any person with respect to an Acquisition Proposal, except to notify such person as to the existence of these provisions and refer such person to this Agreement; (iv) approve, endorse or recommend, or propose to approve, endorse, or recommend any Acquisition Proposal; (v) enter into any letter of intent or similar document or any agreement, commitment or understanding contemplating or otherwise relating to any Acquisition Proposal; or (vi) make or authorize any statement, recommendation or solicitation in support of any Acquisition Proposal. The Company agrees that it shall immediately terminate and shall cause its Subsidiaries, and use its reasonable best efforts to cause its and its Subsidiaries’ Representatives, to terminate, immediately, all current discussions or negotiations (if any) in which any of them may be involved with any third party with respect to an Acquisition Proposal. The Company also shall promptly request that each person which has heretofore executed a confidentiality agreement with it or any of its Subsidiaries or any of its or its Subsidiaries’ Representatives with respect to such person’s consideration of a possible Acquisition Proposal to return promptly or destroy all confidential information heretofore furnished to such person or its Representatives in accordance with the terms of such person’s confidentiality agreement.
(b) Notwithstanding Section 6.3(a) or anything to the contrary that may be contained elsewhere in this Agreement, if, prior to the date of the Company Shareholders’ Meeting, the Company or any of its Subsidiaries, or any of their respective Representatives, receives a written Acquisition Proposal from any person, which Acquisition Proposal did not result from a breach of Section 6.3(a) and appears, on its face to be bona fide, and notice shall identify the Company Board (or any committee thereof) determines in good faith, after consultation with its financial advisor (which may be its existing Financial Advisor or any affiliate thereof), that such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal, then, subject to its compliance with this Section 6.3 and after giving notice to Parent, the Company or its Representatives may (i) furnish information with respect to the Company to the person who has made Person making such Acquisition Proposal, inquiry or any of its Representativesrequest, pursuant to a confidentiality agreement containing confidentiality provisions not materially less restrictive than those contained in the Confidentiality Agreement; provided that such information has previously been provided to Parent or is provided to Parent substantially concurrently with the time it is provided to such person or its Representatives, and (ii) participate in discussions and negotiations with such person regarding such Acquisition Proposal. The Company shall advise Parent orally and in writing of the receipt of any Acquisition Proposal, or any inquiry that could reasonably be expected to lead to an Acquisition Proposal (in each case within two (2) Business Days of receipt thereof), specifying the material terms and conditions thereof and the identity of the person making such Acquisition Proposal Proposal, inquiry or inquiry (as the case may be) request and the Company shall use its reasonable best efforts to provide to Parent a true and complete copy of all written materials provided to the Company or any of its Subsidiaries in connection with any such Acquisition Proposal not later than 48 hours after the receipt of same by the Company or any of its Subsidiaries and, in order to be able to do so, 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 such information to Parent. The Company shall notify Parent (within forty-eight hours) orally and in writing of any material modifications to the financial or other material terms of any such Acquisition Proposal or inquiry and shall provide to Parent, within that same timeframe, a copy of all written materials subsequently provided to or by the Company or any Subsidiary in connection with any such Acquisition Proposal.
(c) Neither the Company Board nor any committee thereof shall withdraw, modify inquiry or amend, or propose to withdraw, modify or amend, in a manner adverse to Parent, the Company Board Recommendation or resolve to do so; provided, however, that notwithstanding the foregoing, the Company Board, or any committee thereof, may withdraw, or modify or amend in a manner adverse to the Parent, the Company Board Recommendation request. Sellers and if it takes such action, it also may terminate its efforts to holdSeller Owners shall, and cancel or postponeshall direct its representatives to, the Company Shareholders’ Meeting, in the event that the Company receives a Superior Proposal and the Company Board, or discontinue any committee thereof, determines in good faith, after consultation with its outside legal counsel (which may be its current outside legal counsel), that failure to take such actions could result in a breach of the Company Board’s fiduciary obligations under Governing Law.
(d) In addition to the obligations set forth in Sections 6.3(a) and 6.3(b), the Company shall (i) advise Parent as promptly as practicable (and in any event within 24 hours) following the commencement of any discussions solicitation efforts or negotiations with respect to or in furtherance of any Acquisition Proposal and the material terms and conditions that are the subject of such discussions or negotiations and (ii) keep Parent reasonably informed of the status and material details (including material amendments) with respect to the information previously provided, pursuant to this Section 6.3(d), by the Company in connection with any such Acquisition Proposal.
(e) The Company Board (or any committee thereof) may, after the date of this Agreement and prior to the date of the Company Shareholders’ Meeting, terminate this Agreement to enter into an agreement with respect to such Superior Proposal, but only if:
(i) such Superior Proposal did not result from a breach by the Company of its covenants contained in Section 6.3 hereof;
(ii) the Company Board (or any committee thereof) shall have first provided prior written notice to Parent that it is prepared to terminate this Agreement to enter into an agreement with respect to a Superior Proposal, which notice shall attach the most current version of any written agreement relating to the transaction that constitutes such Superior Proposal; and
(iii) Parent does not make, within five (5) Business Days after the receipt of the notice referred to in clause (ii) of this Section 6.3(e), a binding, written and complete (including any schedules or exhibits) proposal that the Company Board (or any committee thereof) determines in good faith, after consultation with its financial advisor (which may be its current Financial Advisor or any affiliate thereof), is more favorable to the shareholders of the Company as such Superior Proposal and which, by its terms, may be accepted at any time within five (5) Business Days following such five (5) Business Day period.
(f) In the event of any termination of this Agreement by the Company pursuant to Section 6.3(e), the Company shall pay, as a condition to such termination, the termination fee to Parent pursuant to Section 11.2(b) concurrently with such termination.
(g) The Company shall be permitted to comply with Rule 14d-9, Rule 14e-2 or Item 1012 of Regulation M-A promulgated under the Exchange Act; provided, however, that compliance with such rules and items will in no way limit or modify the effect of such action pursuant to such rules and items would otherwise have under this Agreement.
(h) If the Company Board or any committee thereof takes, agrees or resolves to take any action permitted by this Section 6.3 without the Company, its Subsidiaries or any of its or its Subsidiaries Representatives breaching any of the terms of this Section 6.3, including, but not limited to any of the actions set forth in Section 6.3(c) and Section 6.3(e) above, such action shall not, in any way, constitute a breach of this Agreement by the Company.
Appears in 1 contract
