No Solicitation; Other Offers. (a) Neither Siebel nor any of its Subsidiaries shall, nor shall Siebel or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants or other agents, representatives or advisors (the “Siebel Representatives”) to, directly or indirectly, (i) solicit, initiate, knowingly facilitate or knowingly encourage the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any non-public information relating to Siebel or any of its Subsidiaries to or afford access to the business, properties, assets, books or records of Siebel or any of its Subsidiaries to any Third Party that has made, or has informed Siebel that it is seeking to make, an Acquisition Proposal, (iii) grant any Third Party waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel or any of its Subsidiaries or amend or terminate the Siebel Rights Plan or redeem the Siebel Rights or (iv) enter into any agreement (except for confidentiality agreements, referred to in Section 6.04(b)) with any Third Party with respect to an Acquisition Proposal made by such Third Party, or any other agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Mergers or any of the other transactions contemplated by this Agreement. (b) Notwithstanding anything to the contrary contained in this Agreement, Siebel (through one or more of the Siebel Representatives) or its Board of Directors may, prior to the Siebel Stockholder Approval, (i) engage in negotiations or discussions with any Third Party (or with the representatives of any Third Party) that has made an Acquisition Proposal not solicited in violation of Section 6.03(a) if such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal (such Third Party, a “Qualified Third Party”), (ii) furnish to such Qualified Third Party or its representatives non-public information relating to Siebel or any of its Subsidiaries pursuant to an executed confidentiality agreement containing customary nondisclosure provisions (which need not include “standstill ” or similar provisions) (and a copy of which shall be promptly (in all events within 24 hours) provided for informational purposes only to Oracle), (iii) grant a waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel or any of its Subsidiaries, (iv) amend or terminate the Siebel Rights Plan or redeem the Siebel Rights, (v) withdraw the Siebel Board Recommendation or modify the Siebel Board Recommendation in a manner adverse to Oracle (any such action, a “Change in Recommendation”), (vi) terminate this Agreement pursuant to and subject to the terms of Section 9.01(d) and/or (vii) take any action that any court of competent jurisdiction orders Siebel, one or more of the Siebel Representatives or the Board of Directors of Siebel to take, but in each case referred to in the foregoing clauses (iii), (iv) and (v) only if the Board of Directors of Siebel determines in good faith by a majority vote, after consultation with its outside legal counsel, that failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Law. Nothing contained herein shall prevent the Board of Directors of Siebel from complying with Rule 14e-2(a), Rule 14d-9 and Item 1012(a) of Regulation M-A under the 1934 Act with regard to an Acquisition Proposal; provided that the Board of Directors of Siebel shall not recommend that Siebel’s stockholders tender shares of capital stock in connection with any tender or exchange offer unless such Board of Directors shall have determined in good faith by a majority vote, after consultation with its outside legal counsel, that failure to make such recommendation would be reasonably likely to result in a breach of its fiduciary duties under applicable Law. (c) The Board of Directors of Siebel shall not take any of the actions referred to in clauses (i) through (vii) of the preceding subsection unless Siebel shall have delivered to Oracle a prior written notice advising Oracle that it intends to take such action. In addition, Siebel shall notify Oracle promptly (but in no event later than 24 hours) after an officer or director first obtains Knowledge of the receipt by Siebel (or any of the Siebel Representatives) of any Acquisition Proposal, any inquiry that would reasonably be expected to lead to an Acquisition Proposal, or any request for confidential information relating to Siebel or any of its Subsidiaries or for access to the business, properties, assets, books or records of Siebel or any of its Subsidiaries by any Third Party that has informed Siebel that it is considering making, or has made, an Acquisition Proposal. Siebel shall provide such notice orally and in writing and shall identify the Third Party making, and the material terms and conditions of, any such Acquisition Proposal, inquiry or request. Siebel shall promptly provide Oracle with any non-public information concerning Siebel’s business, present or future performance, financial condition or results of operations, provided to any Qualified Third Party after the date of this Agreement in connection with an Acquisition Proposal made by such Third Party that was not previously provided to Oracle. Siebel shall keep Oracle promptly and reasonably informed, on a reasonably current basis, of the status and material details of any such Acquisition Proposal, inquiry or request. Siebel shall, and shall cause its Subsidiaries and the Siebel Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party with respect to any Acquisition Proposal and shall instruct any such Third Party (or its agents or advisors) in possession of confidential information about Siebel that was furnished by or on behalf of Siebel with respect to any Acquisition Proposal within the six months prior to the date hereof to return or destroy all such information.
Appears in 2 contracts
Samples: Merger Agreement (Siebel Systems Inc), Merger Agreement (Siebel Systems Inc)
No Solicitation; Other Offers. (a) Neither Siebel nor any From the date hereof until the earlier of the Effective Time and the termination of this Agreement in accordance with Section 7, NGH will not, and NGH will use its Subsidiaries shall, nor shall Siebel or any of its Subsidiaries authorize or permit any of its or their reasonable best efforts to cause the officers, directors, employees, investment bankers, attorneys, accountants consultants or other agentsagents or representatives (collectively, representatives or advisors (the “Siebel Representatives”"Agents") of NGH not to, directly or indirectly, (i) solicit, initiate, knowingly facilitate initiate or knowingly encourage the submission of any Acquisition Proposal, (ii) enter into or participate engage in any discussions or negotiations withwith any Person concerning an Acquisition Proposal, furnish (iii) disclose any non-public nonpublic information relating to Siebel or any of its Subsidiaries to or afford access to the business, properties, assets, books or records of Siebel NGH or any of its Subsidiaries to any Third Party that Person who, to the knowledge of NGH, is considering making, or has made, or has informed Siebel that it is seeking to make, an Acquisition Proposal, (iii) grant any Third Party waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel or any of its Subsidiaries or amend or terminate the Siebel Rights Plan or redeem the Siebel Rights Proposal or (iv) enter into take any agreement (except for confidentiality agreements, referred other action to in Section 6.04(b)) with facilitate any Third Party with respect to an Acquisition Proposal made by such Third Partyinquiries or the making of any proposal that constitutes, or any other agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Mergers or any of the other transactions contemplated by this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, Siebel (through one or more of the Siebel Representatives) or its Board of Directors may, prior to the Siebel Stockholder Approval, (i) engage in negotiations or discussions with any Third Party (or with the representatives of any Third Party) that has made an Acquisition Proposal not solicited in violation of Section 6.03(a) if such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal (such Third Partyto, a “Qualified Third Party”), (ii) furnish to such Qualified Third Party or its representatives non-public information relating to Siebel or any of its Subsidiaries pursuant to an executed confidentiality agreement containing customary nondisclosure provisions (which need not include “standstill ” or similar provisions) (and a copy of which shall be promptly (in all events within 24 hours) provided for informational purposes only to Oracle), (iii) grant a waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel or any of its Subsidiaries, (iv) amend or terminate the Siebel Rights Plan or redeem the Siebel Rights, (v) withdraw the Siebel Board Recommendation or modify the Siebel Board Recommendation in a manner adverse to Oracle (any such action, a “Change in Recommendation”), (vi) terminate this Agreement pursuant to and subject to the terms of Section 9.01(d) and/or (vii) take any action that any court of competent jurisdiction orders Siebel, one or more of the Siebel Representatives or the Board of Directors of Siebel to take, but in each case referred to in the foregoing clauses (iii), (iv) and (v) only if the Board of Directors of Siebel determines in good faith by a majority vote, after consultation with its outside legal counsel, that failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Law. Nothing contained herein shall prevent the Board of Directors of Siebel from complying with Rule 14e-2(a), Rule 14d-9 and Item 1012(a) of Regulation M-A under the 1934 Act with regard to an Acquisition Proposal; provided that the Board of Directors of Siebel shall not recommend that Siebel’s stockholders tender shares of capital stock in connection with any tender or exchange offer unless such Board of Directors shall have determined in good faith by a majority vote, after consultation with its outside legal counsel, that failure to make such recommendation would be reasonably likely to result in a breach of its fiduciary duties under applicable Law.
(c) The Board of Directors of Siebel shall not take any of the actions referred to in clauses (i) through (vii) of the preceding subsection unless Siebel shall have delivered to Oracle a prior written notice advising Oracle that it intends to take such action. In addition, Siebel shall NGH will notify Oracle Parent promptly (but in no event later than 24 hours) after an officer or director first obtains Knowledge of the receipt by Siebel (or any of the Siebel Representatives) NGH of any Acquisition Proposal, any inquiry that would reasonably be expected to lead to an Acquisition Proposal, Proposal or any request for confidential nonpublic information relating to Siebel or any of its Subsidiaries or for access to the business, properties, assets, books or records of Siebel NGH or any of its Subsidiaries by any Third Party that has informed Siebel that it Person who, to the knowledge of NGH, is considering making, or has made, an Acquisition Proposal. Siebel NGH shall promptly provide such notice orally and in writing and shall identify the Third Party Person making, and the material all terms and conditions of, any such Acquisition Proposal, inquiry Proposal or request. Siebel shall promptly provide Oracle with any non-public information concerning Siebel’s business, present or future performance, financial condition or results of operations, provided to any Qualified Third Party after the date of this Agreement in connection with an Acquisition Proposal made by such Third Party that was not previously provided to Oracle. Siebel NGH shall keep Oracle Parent promptly and reasonably informed, on a reasonably current basis, informed of the status and material details of any such Acquisition Proposal (including any amendments or proposed amendments) or request and any discussions or negotiations pursuant to Section 6(b) and NGH shall provide to Parent copies of any written communications between NGH and the Person making the Acquisition Proposal, inquiry or request. Siebel NGH shall, and NGH shall use reasonable best efforts to cause its Subsidiaries and the Siebel Representatives Agents of NGH to, cease immediately and cause to be terminated any and all existing activities, discussions or and negotiations, if any, with any Third Party Persons conducted prior to the date hereof with respect to any Acquisition Proposal and Proposal. Nothing contained in this Agreement shall instruct any such Third Party (prevent the Board of Directors of NGH from complying with Rule 14d-9 or its agents or advisors) in possession of confidential information about Siebel that was furnished by or on behalf of Siebel Rule 14e-2 under the 1934 Act with respect to any Acquisition Proposal within Proposal.
(b) Notwithstanding the six months foregoing, NGH may prior to receipt of the date hereof NGH Stockholder Approval negotiate or otherwise engage in substantive discussions with, and furnish nonpublic information to, any Person in response to return an unsolicited Acquisition Proposal by such Person if (i) NGH has complied with the terms of Section 6(a), (ii) the Board of Directors of NGH determines in good faith that such Acquisition Proposal is likely to result in a Superior Proposal and, after consultation with outside legal counsel, that the failure to take such action would constitute a breach of its fiduciary duties under applicable law, (iii) such Person executes a confidentiality agreement with terms no less favorable to NGH than those contained in the Confidentiality Agreement (except as to the standstill provisions) and (iv) NGH shall have delivered to Parent prior written notice advising Parent that it intends to take such action.
(c) The Board of Directors of NGH shall be permitted to withdraw, or destroy all modify in a manner adverse to Parent, its recommendation to its stockholders referred to in Section 2 hereof, but only if (i) NGH has complied with the terms of Section 6(a), (ii) NGH has received an unsolicited Acquisition Proposal which the Board of Directors determines in good faith constitutes a Superior Proposal, (iii) the Board of Directors of NGH determines in good faith, after consultation with outside legal counsel, that the failure to take such informationaction would constitute a breach of its fiduciary duties under applicable law and (iv) NGH shall have delivered to Parent a prior written notice advising Parent that it intends to take such action.
(d) For purposes of this Agreement:
Appears in 2 contracts
Samples: Voting and Indemnity Agreement (Philip Morris Companies Inc), Voting and Indemnity Agreement (Nabisco Inc)
No Solicitation; Other Offers. (a) Neither Siebel From and after the execution of this Agreement by all of the parties hereto until the earlier of the Effective Time and the termination of this Agreement pursuant to Article 10, neither the Company nor any of its Subsidiaries shall, nor shall Siebel or any of and the Company and its Subsidiaries authorize or permit any of shall instruct its or their officers, directors, employees, investment bankers, attorneys, accountants accountants, consultants or other agents, representatives agents or advisors (the “Siebel Representatives”) not to, directly or indirectly, (i) solicit, initiate, knowingly facilitate initiate or knowingly encourage take any action designed to facilitate the submission of any Acquisition Proposal, (ii) enter into or participate engage in any discussions or negotiations with, or furnish any non-public nonpublic information relating to Siebel the Company or any of its Subsidiaries to or knowingly afford access to the business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries (other than such components of such businesses, properties or assets that are generally accessible to the public) to, any Third Party that has made, or has informed Siebel that it to the knowledge of the Company is seeking to make, or has made, an Acquisition Proposal, (iii) (A) amend or grant any Third Party waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel the Company or any of its Subsidiaries or Subsidiaries, (B) amend or terminate the Siebel Rights Plan grant any waiver or release or approve any transaction or redeem rights under the Siebel Rights Agreement, (C) approve any transaction under Section 203 of Delaware Law or (D) approve of any Person becoming an "interested stockholder" under Section 203 of Delaware Law and/or (iv) enter into any agreement (except for confidentiality agreements, referred to in Section 6.04(b)) with any Third Party with respect to an Acquisition Proposal made by such Third Party, (other than a confidentiality agreement pursuant to Section 6.03(b)(ii) or any other agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Mergers or any of the other transactions contemplated by this Agreementa Superior Proposal Agreement in accordance with Section 10.01(d)(ii)(B)).
(b) Notwithstanding anything to the contrary contained in this Agreementforegoing, Siebel (through one or more of the Siebel Representatives) or its Board of Directors of the Company, directly or indirectly through advisors, agents or other intermediaries, may, prior in response to a bona fide Acquisition Proposal the Siebel Stockholder ApprovalCompany's Board of Directors determines in good faith is reasonably likely to result in a Superior Proposal (provided such Acquisition Proposal is not received in violation of Section 6.03(a)), (i) engage in negotiations or discussions with any the Third Party (or with the representatives of any Third Party) that has made an Acquisition Proposal not solicited in violation of Section 6.03(a) if making such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal (such Third Party, a “Qualified Third Party”)Proposal, (ii) furnish to such Qualified Third Party or its representatives non-public nonpublic information relating to, and afford access to Siebel the business, properties, assets, books and records of, the Company or any of its Subsidiaries pursuant to an executed appropriate confidentiality agreement containing customary nondisclosure provisions (which need not include “standstill ” or similar provisions) (and a copy of which shall be promptly (in all events within 24 hours) provided for informational purposes only to OracleParent), (iii) grant fail to make, withdraw or modify in a waiver or release under any standstill or similar agreement with respect manner adverse to any class of equity securities of Siebel or any of Parent its Subsidiariesrecommendation to its stockholders referred to in Section 6.02, (iv) amend or terminate the Siebel Rights Plan or redeem the Siebel Rightsgrant any waiver referred to in Section 6.03(a)(iii)(A), (v) withdraw take any of the Siebel Board Recommendation or modify the Siebel Board Recommendation actions referred to in a manner adverse to Oracle (any such action, a “Change in Recommendation”Section 6.03(a)(iii)(B)-(D), but only in connection with entry into a Superior Proposal Agreement in accordance with Section 10.01(d)(ii)(B) and/or (vi) terminate this enter into a Superior Proposal Agreement pursuant to and subject to the terms of in accordance with Section 9.01(d) and/or (vii) take any action that any court of competent jurisdiction orders Siebel, one or more of the Siebel Representatives or the Board of Directors of Siebel to take, but in each case referred to in the foregoing clauses (iii10.01(d)(ii)(B), (iv) and (v) only if the Board of Directors of Siebel determines in good faith by a majority vote, after consultation with its outside legal counsel, that failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Law. Nothing contained herein shall prevent the Board of Directors of Siebel the Company from complying (i) taking any action that any court of competent jurisdiction orders the Company to take, (ii) making with Rule 14e-2(a)respect to an Acquisition Proposal a "stop-look-and-listen" communication of the nature contemplated in, and otherwise in compliance with, Rule 14d-9 and Item 1012(a14d-9(f) of Regulation M-A under the 1934 Act as a result of receiving an Acquisition Proposal or (iii) with regard to an Acquisition Proposal; provided that , complying with Rules 14e-2(a) or 14d-9 under the 1934 Act or making such disclosure to the Company's stockholders as, in the good faith judgment of the Company's Board of Directors, is necessary for the Company's Board of Directors to comply with its fiduciary duties to the Company's stockholders under applicable law. Unless this Agreement is previously terminated in accordance with Article 10, the Company shall submit this Agreement to its stockholders at the Company Stockholder Meeting, even if the Board of Directors of Siebel shall not recommend the Company determines at any time after the date of this Agreement that Siebel’s it is no longer advisable or recommends that the stockholders tender shares of capital stock in connection with any tender or exchange offer unless such Board of Directors shall have determined in good faith by a majority vote, after consultation with its outside legal counsel, that failure to make such recommendation would be reasonably likely to result in a breach of its fiduciary duties under applicable Lawthe Company reject it.
(c) The Board of Directors of Siebel the Company shall not take any of the actions referred to in clauses (i) through (viiiv) of the first sentence of the preceding subsection unless Siebel shall have delivered the Company delivers to Oracle Parent no later than substantially contemporaneously with the taking of such action a prior written notice advising Oracle Parent that it intends to take is taking (or will take) such action. In addition, Siebel the Company shall notify Oracle Parent promptly (but in no event later than 24 48 hours) after an officer or director first obtains Knowledge of the receipt by Siebel the Company (or any of the Siebel Representativesits advisors) of any Acquisition Proposal, any inquiry that would reasonably be expected to lead to an Acquisition Proposal, Proposal or of any request for confidential information relating to Siebel the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries (other than such components of such businesses, properties or assets that are generally accessible to the public) by any Third Party that has informed Siebel that it to the knowledge of the Company is considering makingseeking to make, or has made, an Acquisition Proposal. Siebel The Company shall provide such notice orally and in writing and shall identify the Third Party making, and the material terms and conditions of, any such Acquisition Proposal, inquiry indication or request. Siebel shall promptly provide Oracle with any non-public information concerning Siebel’s business, present or future performance, financial condition or results of operations, provided to any Qualified Third Party after the date of this Agreement in connection with an Acquisition Proposal made by such Third Party that was not previously provided to Oracle. Siebel The Company shall keep Oracle promptly and reasonably informedParent informed in all material respects, on a reasonably current prompt basis, of the status and material details of any such Acquisition Proposal, inquiry indication or request. Siebel The Company shall, and shall cause its Subsidiaries and the Siebel Representatives advisors, employees and other agents of the Company and any of its Subsidiaries to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to the execution of this Agreement by all parties hereto with respect to any Acquisition Proposal and shall instruct any such Third Party (or its agents or advisors) in possession of confidential information about Siebel that was furnished by or on behalf of Siebel with respect to any Acquisition Proposal within the six months prior to the date hereof to return or destroy all such informationProposal.
Appears in 2 contracts
Samples: Merger Agreement (V F Corp), Merger Agreement (Nautica Enterprises Inc)
No Solicitation; Other Offers. (a) Neither Siebel Except as expressly permitted under Section 6.5(b), neither CCE nor any of its Subsidiaries shall, nor shall Siebel the Representatives of CCE or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants or other agents, representatives or advisors (the “Siebel Representatives”) toSubsidiaries, directly or indirectly, (i) solicit, initiate, knowingly encourage or otherwise facilitate or knowingly encourage the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any non-public information relating to Siebel CCE or any of its Subsidiaries to or afford access to the business, properties, assets, books properties or records Records of Siebel CCE or any of its Subsidiaries to to, otherwise cooperate in any Third Party that has madeway with, or has informed Siebel assist, participate in, facilitate or encourage any effort by any Person that it is seeking to make, or has made, an Acquisition Proposal, (iii) grant any Third Party waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel or any of its Subsidiaries or amend or terminate the Siebel Rights Plan or redeem the Siebel Rights or (iv) enter into any agreement (except for confidentiality agreements, referred to in Section 6.04(b)) with any Third Party with respect to an Acquisition Proposal made by such Third Party, or any other agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Mergers or any of the other transactions contemplated by this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, Siebel (through one or more of the Siebel Representatives) or its Board of Directors may, prior to the Siebel Stockholder Approval, (i) engage in negotiations or discussions with any Third Party (or with the representatives of any Third Party) that has made an Acquisition Proposal not solicited in violation of Section 6.03(a) if such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal (such Third Party, a “Qualified Third Party”), (ii) furnish to such Qualified Third Party or its representatives non-public information relating to Siebel or any of its Subsidiaries pursuant to an executed confidentiality agreement containing customary nondisclosure provisions (which need not include “standstill ” or similar provisions) (and a copy of which shall be promptly (in all events within 24 hours) provided for informational purposes only to Oracle), (iii) grant a waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel CCE or any of its Subsidiaries, (iv) amend approve any transaction under, or terminate any Person becoming an “interested stockholder” under, Section 203 of the Siebel Rights Plan DGCL or redeem the Siebel Rights, (v) withdraw enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar Contract or instrument relating to an Acquisition Proposal. It is agreed that any violation of the Siebel restrictions on CCE set forth in this Section 6.5(a) by any of its Subsidiaries or any Representative of CCE or any of its Subsidiaries shall constitute a breach hereof by CCE.
(b) Notwithstanding Sections 6.4(e) or 6.5(a), at any time prior to obtaining the Required CCE Vote:
(i) CCE, directly or indirectly through advisors, agents or other intermediaries, may (A) engage or participate in negotiations or discussions with any Person and its Representatives that, subject to CCE’s compliance with Section 6.5(a) has made after the date of this Agreement an unsolicited bona fide written Acquisition Proposal that the CCE Board Recommendation believes in good faith constitutes or modify is reasonably likely to lead to a Superior Proposal; and (B) furnish to such Person or its Representatives nonpublic information relating to CCE or any of its Subsidiaries pursuant to a customary confidentiality agreement (a copy of which shall be provided for informational purposes only to TCCC) with such Person; provided, that all such information (to the Siebel extent that such information has not been previously provided or made available to TCCC) is provided or made available to TCCC, as the case may be, prior to or substantially concurrently with the time it is provided or made available to such Person; and
(ii) subject to compliance with Section 6.5(c) and Section 6.5(d), if applicable, the CCE Board Recommendation in may make a manner adverse to Oracle (any such action, a “Change in CCE Recommendation”), (vi) terminate this Agreement pursuant to and subject to the terms of Section 9.01(d) and/or (vii) take any action that any court of competent jurisdiction orders Siebel, one or more of the Siebel Representatives or the Board of Directors of Siebel to take, but ; in each case referred to in the foregoing clauses (iii), (ivi) and (vii) only if the CCE Board of Directors of Siebel determines in good faith by a majority votefaith, after consultation with its outside legal counsel, that the failure to take such action would be reasonably likely to result in a breach of inconsistent with its fiduciary duties under applicable Law. Nothing In addition, nothing contained herein shall prevent the CCE Board of Directors of Siebel from (i) complying with Rule 14e-2(a), Rule 14d-9 and Item 1012(a) of Regulation M-A under the 1934 Exchange Act with regard to an Acquisition ProposalProposal so long as any position taken or statement made to so comply is consistent with this Section 6.5; provided provided, that any such position taken or statement made that addresses or relates to the approval, recommendation or declaration of advisability by CCE’s Board of Directors of Siebel with respect to this Agreement or an Acquisition Proposal shall not recommend that Siebel’s stockholders tender shares of capital stock be deemed to be a Change in CCE Recommendation unless the CCE Board expressly reaffirms the CCE Recommendation in such statement or in connection with any tender such action or exchange offer unless such Board (ii) issuing a “stop, look and listen” disclosure or similar communication of Directors shall have determined in good faith the type contemplated by a majority vote, after consultation with its outside legal counsel, that failure to make such recommendation would be reasonably likely to result in a breach of its fiduciary duties Rule 14d-9(f) under applicable Lawthe Exchange Act.
(c) The CCE Board of Directors of Siebel shall not take any of the actions referred to in clauses (iSection 6.5(b) through (vii) of the preceding subsection unless Siebel CCE shall have delivered to Oracle TCCC a prior written notice advising Oracle TCCC that it intends to take such action. In addition, Siebel CCE shall notify Oracle TCCC promptly (but in no event later than 24 forty-eight (48) hours) after an officer or director first obtains Knowledge of the receipt by Siebel CCE (or any of the Siebel its Representatives) of any Acquisition Proposal, any inquiry indication by a Person that would reasonably be expected to lead to it is considering making an Acquisition Proposal, Proposal or any request for confidential information relating to Siebel CCE or any of its Subsidiaries or for access to the business, properties, assets, books assets or records Records of Siebel CCE or any of its Subsidiaries by any Third Party Person that has informed Siebel indicated that it is may be considering making, or has made, an Acquisition Proposal. Siebel CCE shall provide such notice orally and in writing and shall identify the Third Party Person making, and the material terms and conditions of, any such Acquisition Proposal, inquiry indication or request. Siebel shall promptly provide Oracle with any non-public information concerning Siebel’s business, present or future performance, financial condition or results of operations, provided to any Qualified Third Party after the date of this Agreement in connection with an Acquisition Proposal made by such Third Party that was not previously provided to Oracle. Siebel CCE shall keep Oracle promptly and reasonably TCCC informed, on a reasonably current basis, of the status and material details of any such Acquisition Proposal, inquiry indication or request. Siebel shallrequest (whether communicated orally or in writing), and shall cause promptly (but in no event later than forty-eight (48) hours after receipt) provide to TCCC copies of all correspondence and written materials sent or provided to CCE or any of its Subsidiaries and that describes any terms or conditions of any Acquisition Proposal. Any material amendment to the Siebel Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party with respect to material financial terms of any Acquisition Proposal will be deemed to be a new Acquisition Proposal for purposes of CCE’s compliance with this Section 6.5(c).
(d) Further, the CCE Board shall not make a Change in CCE Recommendation in response to an Acquisition Proposal, unless (i) CCE has received an Acquisition Proposal that constitutes a Superior Proposal, (ii) CCE promptly notifies TCCC, in writing at least three (3) Business Days before taking that action, of its intention to do so, and (iii) TCCC does not make, within three (3) Business Days after its receipt of that written notification, a binding offer that is at least as favorable to the stockholders of CCE as determined by the CCE Board (other than TCCC, Merger Sub and any other Affiliates of TCCC) as such Acquisition Proposal (it being understood and agreed that any amendment to the material financial terms of such Acquisition Proposal shall instruct require a new written notification from CCE and a new three (3) Business Day period under this Section 6.5(d)).
(e) For purposes of this Agreement, “Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement or any such Third Party proposal or offer made by TCCC or any of its Affiliates, any offer, proposal or inquiry relating to any transaction to effect, or any indication of interest by any third Person in, (i) any amalgamation, merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution spin-off, split off or similar transaction involving CCE or any of its Subsidiaries whose assets, individually or in the aggregate, constitute 15% or more of the consolidated assets of CCE, or any purchase or sale of 15% or more of the consolidated assets (including stock of CCE’s Subsidiaries) of CCE and its Subsidiaries, taken as a whole or (ii) any purchase or sale of, or tender or exchange offer (including a self-tender offer) for, voting securities of CCE or any of its Subsidiaries that, if consummated, would result in any Person (or the stockholders of such Person) beneficially owning securities representing 15% or more of CCE’s total voting power (or of the surviving entity in such transaction) or the voting power of any of its agents Subsidiaries whose assets, individually or advisors) in possession the aggregate, constitute 15% or more of confidential information about Siebel that was furnished by or on behalf the consolidated assets of Siebel with respect to any Acquisition Proposal within the six months prior to the date hereof to return or destroy all such informationCCE.
Appears in 2 contracts
Samples: Business Separation and Merger Agreement (Coca-Cola Enterprises, Inc.), Business Separation and Merger Agreement (Coca Cola Enterprises Inc)
No Solicitation; Other Offers. (a) Neither Siebel Except as provided by the remainder of this Section 6.04, from the date hereof until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article 10, neither the Company nor any of its Subsidiaries nor any of their respective officers or directors shall, nor and the Company and its Subsidiaries shall Siebel or not authorize any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants or other agents, representatives or advisors (the “Siebel Representatives”) Representatives to, directly or indirectly, (i) solicit, initiate, initiate or take any action to knowingly facilitate or knowingly encourage any inquiries or the submission making of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal, including by way of furnishing any non-public information or data concerning the Company or its Subsidiaries or any assets owned (in whole or part) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it would reasonably be expected to lead to an Acquisition Proposal or (ii) enter into into, continue or otherwise participate in any discussions or negotiations with, furnish any non-public information relating to Siebel or any of its Subsidiaries to or afford access to the business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries to to, any Third Party that has made, or has informed Siebel that it is seeking with respect to make, an any potential Acquisition Proposal, (iii) enter into any agreement in principle, memorandum of understanding, letter of intent, merger agreement, acquisition agreement, joint venture agreement, option agreement or other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of an Acquisition Proposal (an “Alternative Acquisition Agreement”), or (iv) grant any Third Party waiver waiver, amendment or release under any standstill or similar confidentiality agreement with respect to any class of equity securities of Siebel or any of its Subsidiaries or amend or terminate the Siebel Rights Plan or redeem the Siebel Rights or (iv) enter into any agreement (except for confidentiality agreements, referred to in Section 6.04(b)) with any Third Party with respect to concerning an Acquisition Proposal made by such Third PartyProposal; provided that notwithstanding the foregoing and the last sentence of this Section 6.04(a) the Company shall be permitted to waive, or any other agreementamend, arrangement or understanding requiring it to abandon, terminate release or fail to consummate the Mergers or enforce any of the other transactions contemplated by this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, Siebel (through one or more of the Siebel Representatives) or its Board of Directors may, prior to the Siebel Stockholder Approval, (i) engage in negotiations or discussions with any Third Party (or with the representatives provision of any Third Party) that has made an Acquisition Proposal not solicited in violation of Section 6.03(a) if such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal (such Third Partyconfidentiality, a “Qualified Third Party”), (ii) furnish to such Qualified Third Party or its representatives non-public information relating to Siebel or any of its Subsidiaries pursuant to an executed confidentiality agreement containing customary nondisclosure provisions (which need not include “standstill standstill” or similar provisions) (and a copy obligation of which shall be promptly (in all events within 24 hours) provided for informational purposes only to Oracle), (iii) grant a waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel or any of its Subsidiaries, (iv) amend or terminate the Siebel Rights Plan or redeem the Siebel Rights, (v) withdraw the Siebel Board Recommendation or modify the Siebel Board Recommendation in a manner adverse to Oracle (any such action, a “Change in Recommendation”), (vi) terminate this Agreement pursuant to and subject to the terms of Section 9.01(d) and/or (vii) take any action that any court of competent jurisdiction orders Siebel, one or more of the Siebel Representatives or the Board of Directors of Siebel to take, but in each case referred to in the foregoing clauses (iii), (iv) and (v) only Person if the Board of Directors of Siebel the Company determines in good faith by a majority votefaith, after consultation with its outside legal counsel, that the failure to take such action would be reasonably likely to result in a breach of inconsistent with its fiduciary duties under applicable Applicable Law. Nothing contained herein shall prevent the Board of Directors of Siebel from complying with Rule 14e-2(a), Rule 14d-9 and Item 1012(a) of Regulation M-A under the 1934 Act with regard to an Acquisition Proposal; provided that the Board of Directors of Siebel shall not recommend that Siebel’s stockholders tender shares of capital stock in connection with any tender or exchange offer unless such Board of Directors shall have determined in good faith by a majority vote, after consultation with its outside legal counsel, that failure to make such recommendation would be reasonably likely to result in a breach of its fiduciary duties under applicable Law.
(c) The Board of Directors of Siebel shall not take any of the actions referred to in clauses (i) through (vii) of the preceding subsection unless Siebel shall have delivered to Oracle a prior written notice advising Oracle that it intends to take such action. In addition, Siebel shall notify Oracle promptly (but in no event later than 24 hours) after an officer or director first obtains Knowledge of the receipt by Siebel (or any of the Siebel Representatives) of any Acquisition Proposal, any inquiry that would reasonably be expected to lead to an Acquisition Proposal, or any request for confidential information relating to Siebel or any of its Subsidiaries or for access to the business, properties, assets, books or records of Siebel or any of its Subsidiaries by any Third Party that has informed Siebel that it is considering making, or has made, an Acquisition Proposal. Siebel shall provide such notice orally and in writing and shall identify the Third Party making, and the material terms and conditions of, any such Acquisition Proposal, inquiry or request. Siebel shall promptly provide Oracle with any non-public information concerning Siebel’s business, present or future performance, financial condition or results of operations, provided to any Qualified Third Party after the date of this Agreement in connection with an Acquisition Proposal made by such Third Party that was not previously provided to Oracle. Siebel shall keep Oracle promptly and reasonably informed, on a reasonably current basis, of the status and material details of any such Acquisition Proposal, inquiry or request. Siebel Company shall, and shall cause each of its Subsidiaries and the Siebel its and their respective Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, existing as of the date of this Agreement with any Third Party and its Representatives with respect to any Acquisition Proposal and or that would reasonably be expected to lead to an Acquisition Proposal. The Company shall instruct use its commercially reasonable efforts to promptly inform its Representatives of the obligations in this Section 6.04. The Company also agrees that it will promptly request each Person that has executed a confidentiality agreement prior to the date hereof in connection with its consideration of acquiring the Company or any of its Subsidiaries to return or destroy (as provided in the terms of such Third Party (or its agents or advisorsconfidentiality agreement) in possession of all confidential information about Siebel that was furnished to such Person prior to the date hereof by or on behalf of Siebel it or any of its Subsidiaries. The Company and its Subsidiaries shall use commercially reasonable efforts to enforce any confidentiality agreements entered into with any Person in connection with any Acquisition Proposal if requested to do so by Parent, subject to the remaining provisions of this Section 6.04.
(b) Notwithstanding anything contained in Section 6.04(a) to the contrary, following the receipt of an Acquisition Proposal that was made after the date hereof that did not result from a material breach by the Company, any of its Subsidiaries or its or their respective Representatives of this Section 6.04 and prior to obtaining the Company Stockholder Approval, if (i) the Company or any of its Representatives has received an Acquisition Proposal that the Board of Directors of the Company, after consultation with its outside legal counsel and with its financial advisor, reasonably believes is or could reasonably result in a Superior Proposal and (ii) the Board of Directors of the Company determines in good faith, after consultation with outside legal counsel, that the failure to take such action would be inconsistent with its fiduciary duties under Applicable Law, then, subject to providing written notice to Parent of its decision to take such action and compliance in all material respects with Section 6.04(c), the Company, directly or indirectly through its Representatives, may (A) engage in negotiations or discussions with such Third Party and its Representatives, and (B) furnish to such Third Party or its Representatives non-public information relating to the Company or any of its Subsidiaries pursuant to an Acceptable Confidentiality Agreement; provided that the Company shall promptly (and in any event within twenty-four (24) hours) provide to Parent any such information relating to the Company that it provided to any such Person which was not previously provided to or made available to Parent.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Parent orally and in writing after the receipt by the Company of any Acquisition Proposal or any request for information or access relating to the Company or any of its Subsidiaries with respect to an Acquisition Proposal indicating, in connection with such notice, the name of such Person (except to the extent disclosure of such identity would breach a confidentiality obligation in effect prior to the execution of this Agreement) and the material terms and conditions of any proposals or offers (including, if applicable, copies of any written requests, proposals or offers, including proposed agreements, which in each case may be redacted, if necessary to remove the identity of any Third Party to comply with any confidentiality obligation in effect prior to the execution of this Agreement) and thereafter, subject to the foregoing confidentiality qualifications, shall (i) keep Parent reasonably informed, on a prompt and timely basis, of the status and terms of any such proposals or offers (including any material amendments thereto) and the status of any such discussions or negotiations, and (ii) provide to Parent as soon as practicable copies of all written proposals or offers (including proposed agreements) sent or provided to the Company or any of its Subsidiaries from any Person (or such Person’s Representative) making an Acquisition Proposal that describes any of the financial or other material terms or conditions of such Acquisition Proposal.
(d) Except as set forth in Section 6.04(e) and Section 6.04(g), the Board of Directors of the Company and each committee of the Board of Directors of the Company shall not:
(i) withhold, withdraw, qualify or modify (or publicly propose or announce any intention to or resolve to withhold, withdraw, qualify or modify), in a manner adverse to Parent or Merger Subsidiary, the Company Board Recommendation;
(ii) other than in the case of an Acquisition Proposal in the form of a tender offer or exchange offer, fail to publicly affirm the Company Board Recommendation upon Parent’s written request within five (5) Business Days after such request after a public announcement of an Acquisition Proposal;
(iii) (A) fail to recommend against acceptance of any tender offer or exchange offer that is publicly disclosed (other than by Parent or any of its Subsidiaries) prior to the eleventh (11th) Business Day after the commencement of such tender or exchange offer pursuant to Rule 14d-2 under the 1934 Act or (B) recommend that the stockholders of the Company tender their shares of Company Stock in such tender offer or exchange offer;
(iv) fail to include the Company Board Recommendation in the Company Proxy Statement in connection with the Company Stockholder Meeting; or
(v) approve, adopt, recommend, or publicly propose to approve, adopt or recommend, any Acquisition Proposal within (any action described in Sections 6.04(d)(i) through 6.04(d)(v) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the six months contrary set forth in this Agreement but subject to Section 6.04(f), prior to the time, but not after, the Company Stockholder Approval is obtained, if an Acquisition Proposal has been made after the execution of this Agreement, the Board of Directors of the Company may make an Adverse Recommendation Change in response to such Acquisition Proposal or terminate this Agreement pursuant to Section 10.01 if, and only if, (i) such Acquisition Proposal did not result from a material breach by the Company, any of its Subsidiaries or its or their respective Representatives of this Section 6.04; and (ii) the Board of Directors of the Company determines in good faith after consultation with its outside legal counsel and with its financial advisor that such Acquisition Proposal constitutes a Superior Proposal.
(f) Prior to making any Adverse Recommendation Change in connection with an Acquisition Proposal and prior to terminating this Agreement pursuant to Section 10.01 (to the extent permitted under Section 6.04), the Company shall deliver to Parent a written notice (a “Superior Proposal Notice”) stating that the Board of Directors of the Company intends to take such action pursuant to Section 6.04 and, if applicable, intends to cause the Company to enter into an Alternative Acquisition Agreement, a copy of the proposed form of which shall be delivered with such notice, together with copies of any documents setting forth the Acquisition Proposal (which notice or intent shall not be an Adverse Recommendation Change or a violation of Section 6.04(d) or any other provision of this Section 6.04). During the three (3) Business Day period commencing on the first Business Day following the date hereof of Parent’s receipt of such Superior Proposal Notice (the “Negotiation Period”), the Company shall make its Representatives reasonably available for the purpose of engaging in negotiations with Parent (to return the extent Parent desires to negotiate) regarding a possible amendment of this Agreement so that the Acquisition Proposal that is the subject of the Superior Proposal Notice ceases to be a Superior Proposal. Any written proposal made by Parent to amend this Agreement during the Negotiation Period shall be considered by the Board of Directors of the Company in good faith. Each time the financial or destroy other material terms of such Acquisition Proposal are changed, the Company shall be required to deliver to Parent a new Superior Proposal Notice (including as attachments thereto a copy of the new Alternative Acquisition Agreement relating to such amended Acquisition Proposal and copies of any related documents), and the Negotiation Period shall be extended by an additional three (3) Business Days from the date of Parent’s receipt of such new Superior Proposal Notice.
(g) Notwithstanding anything to the contrary set forth in this Agreement, prior to the time, but not after, the Company Stockholder Approval is obtained, the Board of Directors of the Company may make an Adverse Recommendation Change in response to an Intervening Event if, and only if, the Board of Directors of the Company determines in good faith after consultation with its outside legal counsel and with its financial advisor that a failure to make an Adverse Recommendation Change in response to such Intervening Event would be reasonably likely to be inconsistent with its fiduciary duties under Applicable Law; provided, however, that the Company shall deliver to Parent a written notice (the “Intervening Event Notice”) advising Parent of all available material information with respect to such informationIntervening Event and stating that the Board of Directors of the Company intends to take such action pursuant to this Section 6.04(g) (which notice or intent shall not be an Adverse Recommendation Change or a violation of Section 6.04(d) or any other provision of this Section 6.04). During the three (3) Business Day period commencing on the date of Parent’s receipt of the Intervening Event Notice (the “Intervening Negotiation Period”), the Company shall make its Representatives reasonably available for the purpose of engaging in negotiations with Parent (to the extent Parent desires to negotiate) regarding a possible amendment of this Agreement in order to enable the Board of Directors of the Company to proceed with the Company Board Recommendation. Any written proposal made by Parent to amend this Agreement during the Intervening Negotiation Period shall be considered by the Board of Directors of the Company in good faith.
(h) Notwithstanding anything to the contrary set forth this Agreement, unless this Agreement is terminated pursuant to, and in accordance with, Section 10.01, (i) the obligation of the Company to establish a record date for, duly call, give notice of, and, subject to Section 6.02, convene and hold the Company Stockholder Meeting and to hold a vote of the Company’s stockholders on the adoption of this Agreement and the Merger at the Company Stockholder Meeting pursuant to Section 6.02 shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission to it of any Acquisition Proposal (whether or not a Superior Proposal) or by an Adverse Recommendation Change, and (ii) in any case in which the Company makes an Adverse Recommendation Change pursuant to this Section 6.04, the Company shall nevertheless submit this Agreement to a vote of its stockholders at the Company Stockholder Meeting for the purpose of the approval of this Agreement.
(i) Nothing contained in this Agreement shall prevent the Company or the Board of Directors of the Company from (i) taking and disclosing to its stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the 1934 Act (or any similar communication to its stockholders in connection with the making or amendment of a tender offer or exchange offer) or from making any disclosure to its stockholders with regard to the transactions contemplated by this Agreement or an Acquisition Proposal which the Board of Directors of the Company (after consultation with outside counsel) determines in its good faith judgment that failure to make such disclosure would reasonably be expected to violate U.S. federal or state securities Law or other Applicable Law or its fiduciary obligations under Applicable Law; provided that the Board of Directors of the Company may not effect an Adverse Recommendation Change unless permitted to do so by this Section 6.04; provided, further, that notwithstanding anything herein to the contrary, any “stop, look and listen” disclosure in and of itself shall not be considered an Adverse Recommendation Change or (ii) contacting and engaging in discussions with any Person or group and their respective Representatives who has made an Acquisition Proposal solely for the purpose of clarifying such Acquisition Proposal and the terms thereof.
Appears in 2 contracts
Samples: Merger Agreement (Amc Entertainment Inc), Merger Agreement (Carmike Cinemas Inc)
No Solicitation; Other Offers. (a) Neither Siebel nor any of its Subsidiaries shallFrom the date hereof until the Broadcast Merger Effective Time or, if earlier, until this Agreement is terminated in accordance with Article 13, except as expressly permitted by this Section 10.02, Journal shall not, nor shall Siebel or any of its Subsidiaries it authorize or permit any of its Subsidiaries or any of its or their officers, directors, employees, investment bankers, attorneys, accountants or other agents, representatives or advisors (the “Siebel Representatives”) respective Representatives to, directly or indirectly, (i) solicit, initiate, knowingly initiate or take any action to facilitate or knowingly encourage the submission of any inquiries regarding, or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Journal Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with or otherwise cooperate with, or knowingly assist, participate in, facilitate or encourage any effort by, or furnish any non-public information relating to Siebel Journal or any of its Subsidiaries to Subsidiaries, or afford access to the business, properties, assets, books or records of Siebel Journal or any of its Subsidiaries to to, any Third Party that has made, or has informed Siebel that it is seeking to make, an or has made, a Journal Acquisition Proposal, Proposal or (iii) grant any Third Party waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel or any of its Subsidiaries or amend or terminate the Siebel Rights Plan or redeem the Siebel Rights or (iv) enter into any agreement, agreement in principle, letter of intent, term sheet, memorandum of understanding or other similar instrument relating to a Journal Acquisition Proposal (except for other than a confidentiality agreements, agreement referred to in Section 6.04(b10.02(b)) with any Third Party with respect to an (each, a “Journal Acquisition Proposal made by such Third Party, or any other agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Mergers or any of the other transactions contemplated by this Agreement”).
(b) Notwithstanding anything in this Agreement to the contrary contained in this Agreementcontrary, Siebel (through one or more of from the Siebel Representatives) or date hereof and prior to obtaining the Journal Shareholder Approval, Journal and its Board of Directors may, prior to (the Siebel Stockholder Approval, “Journal Board”) and their Representatives shall be permitted:
(i) to engage in discussions and negotiations or discussions with with, and furnish information to, any Third Party (or with the representatives of any Third Party) that has made an in response to a Journal Acquisition Proposal not solicited in violation of Section 6.03(aby any such Third Party (a “Journal Bidder”) if if, and only to the extent that, (A) such Journal Acquisition Proposal constitutes or could reasonably be expected to lead to did not result from a Superior Proposal (such Third Party, a “Qualified Third Party”), (ii) furnish to such Qualified Third Party or its representatives non-public information relating to Siebel or any breach of its Subsidiaries pursuant to an executed confidentiality agreement containing customary nondisclosure the provisions (which need not include “standstill ” or similar provisions) (and a copy of which shall be promptly (in all events within 24 hours) provided for informational purposes only to Oracle), (iii) grant a waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel this Section 10.02 by Journal or any of its Subsidiaries; (B) the Journal Board concludes in good faith, (iv) amend based on the information then available and after consultation with a nationally recognized financial advisor and outside legal counsel, that such Journal Acquisition Proposal constitutes or terminate the Siebel Rights Plan or redeem the Siebel Rights, (v) withdraw the Siebel Board Recommendation or modify the Siebel Board Recommendation is reasonably likely to result in a manner adverse to Oracle Journal Superior Proposal; (any such action, a “Change in Recommendation”), (viC) terminate this Agreement pursuant to and subject to the terms of Section 9.01(d) and/or (vii) take any action that any court of competent jurisdiction orders Siebel, one or more of the Siebel Representatives or the Journal Board of Directors of Siebel to take, but in each case referred to in the foregoing clauses (iii), (iv) and (v) only if the Board of Directors of Siebel determines concludes in good faith by a majority votefaith, based on the information then available and after consultation with its outside legal counsel, that the failure to take such action do so would be reasonably likely to result in a breach of be inconsistent with its fiduciary duties under applicable Applicable Law. Nothing contained herein shall prevent ; (D) prior to providing any information or data to any such Journal Bidder or entering into any discussions or negotiations with any such Journal Bidder, Journal promptly notifies Scripps of (1) its intent to so furnish information or enter into discussions and negotiations with such Journal Bidder, (2) the Board name of Directors such Journal Bidder and (3) a summary of Siebel from complying with Rule 14e-2(a), Rule 14d-9 the material terms and Item 1012(a) conditions of Regulation M-A under the 1934 Act with regard to an any such Journal Acquisition Proposal; , (E) prior to providing any information or data to any such Journal Bidder, Journal receives from such Journal Bidder an executed confidentiality agreement, the terms of which are no less favorable to Journal, in any material respect, than those contained in the Confidentiality Agreement, and (F) Journal promptly provides or makes available to Scripps any non-public information concerning Journal or its Subsidiaries provided or made available to such Journal Bidder that was not previously provided or made available to Scripps;
(ii) without limiting its rights under Article 13, to withdraw, modify, qualify in a manner adverse to Scripps, condition or refuse to make the Journal Board Recommendation (it being understood that the Journal Board may refrain from taking a position with respect to a Journal Acquisition Proposal until the close of Directors business of Siebel shall the tenth (10th) Business Day following a written request by Scripps to the Journal Board to affirm the Journal Board Recommendation after the first public announcement of such Journal Acquisition Proposal without such action being considered an adverse modification) (the “Change in the Journal Board Recommendation”) or approve, endorse, recommend, execute or enter into, any Journal Acquisition Agreement solely in response to a Journal Superior Proposal only if (A) such Journal Superior Proposal did not recommend that Siebel’s stockholders tender shares result from a breach of capital stock in connection with the provisions of this Section 10.02 by Journal or any tender or exchange offer unless such of its Subsidiaries, (B) the Journal Board of Directors shall have determined concludes in good faith by a majority votefaith, after consultation with its outside legal counsel, that failure to make such recommendation do so would be reasonably likely violate its fiduciary obligations under Applicable Law, (C) without limiting Journal’s obligation under Section 10.02(b)(i)(C), the Journal Board provides written notice to result Scripps (a “Notice of Journal Superior Proposal”) advising Scripps that the Journal Board has received a Journal Superior Proposal, specifying the material terms and conditions of such Journal Superior Proposal and identifying the Person making such Journal Superior Proposal (and attaching any agreement and all material related documentation providing for such Journal Superior Proposal) and indicating that the Journal Board intends to make a Change in the Journal Board Recommendation, (D) Journal negotiates, and causes its Representatives to negotiate, in good faith with Scripps and its Representatives during the Journal Response Window, to the extent Scripps wishes to negotiate, to enable Scripps to make an offer or counteroffer to effect revisions to the terms of this Agreement and the other Transaction Agreements such that it would cause such Journal Superior Proposal to no longer constitute a Journal Superior Proposal, (E) if Scripps does not, within five (5) Business Days of its receipt of the Notice of Journal Superior Proposal (the “Journal Response Window”), make an offer or a counteroffer that the Journal Board determines, in its good faith judgment (after having received the advice of a financial advisor of nationally recognized reputation) and outside legal counsel to be at least as favorable to the Journal Shareholders as such Journal Superior Proposal; it being understood and agreed that, with respect to clauses (C), (D) and (E) of this Section 10.02(b)(ii), any material amendments to such Journal Superior Proposal, including the financial terms of such Journal Superior Proposal, shall each require the delivery of a new Notice of Journal Superior Proposal and the commencement of a new Journal Response Window; and
(iii) to comply with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act with regard to a Journal Acquisition Proposal or make any disclosure to Journal’s shareholders required by Applicable Law; provided, that the Journal Board shall not withdraw or modify in a breach manner adverse to Scripps the Journal Board Recommendation except as permitted under subsection (ii) above. For the avoidance of its fiduciary duties under applicable Law.
(c) The Board of Directors of Siebel shall not take any doubt, a “stop, look and listen” or similar communication of the actions referred to in clauses (i) through (viitype contemplated by Rule 14d-9(f) of the preceding subsection unless Siebel Exchange Act, an express rejection of any Journal Acquisition Proposal or an express reaffirmation of the Journal Board Recommendation shall have delivered not be deemed to Oracle be a prior written notice advising Oracle that it intends to take such actionChange in the Journal Board Recommendation for purposes of this Agreement. In additionaddition to the foregoing, Siebel Journal shall notify Oracle promptly not submit to the vote of the Journal Shareholders any Journal Acquisition Proposal (but including any Journal Superior Proposal) other than the Transactions prior to the termination of this Agreement in no accordance with its terms. Without limiting Section 10.02(a) and Journal’s notice obligations in Section 10.02(b), (1) Journal will promptly, and in any event later than within 24 hours) after an officer or director first obtains Knowledge of , notify Scripps in the receipt by Siebel (or any of the Siebel Representatives) of any Acquisition Proposal, any inquiry event that would reasonably be expected to lead to an Acquisition Proposal, or any request for confidential information relating to Siebel Journal or any of its Subsidiaries or for access to the business, properties, assets, books its or records of Siebel their respective Representatives receives any Journal Acquisition Proposal or any information related thereto, which notification shall include a summary of its Subsidiaries by any Third Party that has informed Siebel that it is considering making, or has made, an Acquisition Proposal. Siebel shall provide such notice orally and in writing and shall identify the Third Party making, and the material terms and conditions ofof the Journal Acquisition Proposal and identify the Third Party making the same, and (2) Journal shall keep Scripps reasonably informed of any material developments with respect to any such Journal Acquisition ProposalProposal and any discussions and negotiations with respect to a Journal Superior Proposal permitted pursuant to Section 10.02(b)(i). Journal shall not, inquiry and shall cause its Subsidiaries not to, enter into any confidentiality or request. Siebel shall promptly provide Oracle similar agreement with any non-public Person that prohibits Journal from providing to Scripps any of the information concerning Siebel’s business, present or future performance, financial condition or results of operations, required to be provided to any Qualified Third Party after Scripps under this Section 10.02(b) within the date of this Agreement in connection with an Acquisition Proposal made by such Third Party that was not previously provided to Oracle. Siebel shall keep Oracle promptly and reasonably informed, on a reasonably current basis, of the status and material details of any such Acquisition Proposal, inquiry or request. Siebel time periods contemplated hereby.
(c) Journal shall, and shall cause its Subsidiaries and the Siebel its and their respective Representatives to, immediately cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to the date hereof with respect to any Journal Acquisition Proposal Proposal, or any inquiry or proposal that may reasonably be expected to lead to a Journal Acquisition Proposal, and shall instruct use all commercially reasonable efforts to cause any such Third Party (or its agents or advisors) in possession of confidential information about Siebel regarding Journal or its Subsidiaries that was furnished by or on behalf of Siebel Journal in connection with respect such activities, discussions or negotiations to any Acquisition Proposal within the six months prior to the date hereof to promptly return or destroy all such information. Without limiting this Section 10.02, it is agreed that any violation of the restrictions set forth in this Section 10.02 by any Representative of Journal or any of its Subsidiaries shall constitute a breach of this Section 10.02 by Journal.
Appears in 2 contracts
Samples: Master Transaction Agreement (Scripps E W Co /De), Master Transaction Agreement (Journal Communications Inc)
No Solicitation; Other Offers. (a) Neither Siebel Except as provided by the remainder of this Section 6.04, from the date hereof until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article 10, neither the Company nor any of its Subsidiaries nor any of their respective officers or directors shall, nor and the Company and its Subsidiaries shall Siebel or not authorize any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants or other agents, representatives or advisors (the “Siebel Representatives”) Representatives to, directly or indirectly, (i) solicit, initiate, initiate or take any action to knowingly facilitate or knowingly encourage any inquiries or the submission making of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal, including by way of furnishing any non-public information or data concerning the Company or its Subsidiaries or any assets owned (in whole or part) by the Company or its Subsidiaries to any Person in furtherance of an Acquisition Proposal or if it would reasonably be expected to lead to an Acquisition Proposal or (ii) enter into into, continue or otherwise participate in any discussions or negotiations with, furnish any non-public information relating to Siebel or any of its Subsidiaries to or afford access to the business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries to to, any Third Party that has made, or has informed Siebel that it is seeking with respect to make, an any potential Acquisition Proposal, (iii) enter into any agreement in principle, memorandum of understanding, letter of intent, merger agreement, acquisition agreement, joint venture agreement, option agreement or other similar agreement (but excluding an Acceptable Confidentiality Agreement) providing for a transaction that is the subject of an Acquisition Proposal (an “Alternative Acquisition Agreement”), or (iv) grant any Third Party waiver waiver, amendment or release under any standstill or similar confidentiality agreement with respect to any class of equity securities of Siebel or any of its Subsidiaries or amend or terminate the Siebel Rights Plan or redeem the Siebel Rights or (iv) enter into any agreement (except for confidentiality agreements, referred to in Section 6.04(b)) with any Third Party with respect to concerning an Acquisition Proposal made by such Third PartyProposal; provided that notwithstanding the foregoing and the last sentence of this Section 6.04(a) the Company shall be permitted to waive, or any other agreementamend, arrangement or understanding requiring it to abandon, terminate release or fail to consummate the Mergers or enforce any of the other transactions contemplated by this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, Siebel (through one or more of the Siebel Representatives) or its Board of Directors may, prior to the Siebel Stockholder Approval, (i) engage in negotiations or discussions with any Third Party (or with the representatives provision of any Third Party) that has made an Acquisition Proposal not solicited in violation of Section 6.03(a) if such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal (such Third Partyconfidentiality, a “Qualified Third Party”), (ii) furnish to such Qualified Third Party or its representatives non-public information relating to Siebel or any of its Subsidiaries pursuant to an executed confidentiality agreement containing customary nondisclosure provisions (which need not include “standstill standstill” or similar provisions) (and a copy obligation of which shall be promptly (in all events within 24 hours) provided for informational purposes only to Oracle), (iii) grant a waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel or any of its Subsidiaries, (iv) amend or terminate the Siebel Rights Plan or redeem the Siebel Rights, (v) withdraw the Siebel Board Recommendation or modify the Siebel Board Recommendation in a manner adverse to Oracle (any such action, a “Change in Recommendation”), (vi) terminate this Agreement pursuant to and subject to the terms of Section 9.01(d) and/or (vii) take any action that any court of competent jurisdiction orders Siebel, one or more of the Siebel Representatives or the Board of Directors of Siebel to take, but in each case referred to in the foregoing clauses (iii), (iv) and (v) only Person if the Board of Directors of Siebel the Company determines in good faith by a majority votefaith, after consultation with its outside legal counsel, that the failure to take such action would be reasonably likely to result in a breach of inconsistent with its fiduciary duties under applicable Applicable Law. Nothing contained herein shall prevent the Board of Directors of Siebel from complying with Rule 14e-2(a), Rule 14d-9 and Item 1012(a) of Regulation M-A under the 1934 Act with regard to an Acquisition Proposal; provided that the Board of Directors of Siebel shall not recommend that Siebel’s stockholders tender shares of capital stock in connection with any tender or exchange offer unless such Board of Directors shall have determined in good faith by a majority vote, after consultation with its outside legal counsel, that failure to make such recommendation would be reasonably likely to result in a breach of its fiduciary duties under applicable Law.
(c) The Board of Directors of Siebel shall not take any of the actions referred to in clauses (i) through (vii) of the preceding subsection unless Siebel shall have delivered to Oracle a prior written notice advising Oracle that it intends to take such action. In addition, Siebel shall notify Oracle promptly (but in no event later than 24 hours) after an officer or director first obtains Knowledge of the receipt by Siebel (or any of the Siebel Representatives) of any Acquisition Proposal, any inquiry that would reasonably be expected to lead to an Acquisition Proposal, or any request for confidential information relating to Siebel or any of its Subsidiaries or for access to the business, properties, assets, books or records of Siebel or any of its Subsidiaries by any Third Party that has informed Siebel that it is considering making, or has made, an Acquisition Proposal. Siebel shall provide such notice orally and in writing and shall identify the Third Party making, and the material terms and conditions of, any such Acquisition Proposal, inquiry or request. Siebel shall promptly provide Oracle with any non-public information concerning Siebel’s business, present or future performance, financial condition or results of operations, provided to any Qualified Third Party after the date of this Agreement in connection with an Acquisition Proposal made by such Third Party that was not previously provided to Oracle. Siebel shall keep Oracle promptly and reasonably informed, on a reasonably current basis, of the status and material details of any such Acquisition Proposal, inquiry or request. Siebel Company shall, and shall cause each of its Subsidiaries and the Siebel its and their respective Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, existing as of the date of this Agreement with any Third Party and its Representatives with respect to any Acquisition Proposal and or that would reasonably be expected to lead to an Acquisition Proposal. The Company shall instruct use its commercially reasonable efforts to promptly inform its Representatives of the obligations in this Section 6.04. The Company also agrees that it will promptly request each Person that has executed a confidentiality agreement prior to the date hereof in connection with its consideration of acquiring the Company or any of its Subsidiaries to return or destroy (as provided in the terms of such Third Party (or its agents or advisorsconfidentiality agreement) in possession of all confidential information about Siebel that was furnished to such Person prior to the date hereof by or on behalf of Siebel it or any of its Subsidiaries. The Company and its Subsidiaries shall use commercially reasonable efforts to enforce any confidentiality agreements entered into with any Person in connection with any Acquisition Proposal if requested to do so by Parent, subject to the remaining provisions of this Section 6.04.
(b) Notwithstanding anything contained in Section 6.04(a) to the contrary, following the receipt of an Acquisition Proposal that was made after the date hereof that did not result from a material breach by the Company, any of its Subsidiaries or its or their respective Representatives of this Section 6.04 and prior to obtaining the Company Stockholder Approval, if (i) the Company or any of its Representatives has received an Acquisition Proposal that the Board of Directors of the Company, after consultation with its outside legal counsel and with its financial advisor, reasonably believes is or could reasonably result in a Superior Proposal and (ii) the Board of Directors of the Company determines in good faith, after consultation with outside legal counsel, that the failure to take such action would be inconsistent with its fiduciary duties under Applicable Law, then, subject to providing written notice to Parent of its decision to take such action and compliance in all material respects with Section 6.04(c), the Company, directly or indirectly through its Representatives, may (A) engage in negotiations or discussions with such Third Party and its Representatives, and (B) furnish to such Third Party or its Representatives non-public information relating to the Company or any of its Subsidiaries pursuant to an Acceptable Confidentiality Agreement; provided that the Company shall promptly (and in any event within twenty-four (24) hours) provide to Parent any such information relating to the Company that it provided to any such Person which was not previously provided to or made available to Parent.
(c) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Parent orally and in writing after the receipt by the Company of any Acquisition Proposal or any request for information or access relating to the Company or any of its Subsidiaries with respect to an Acquisition Proposal indicating, in connection with such notice, the name of such Person (except to the extent disclosure of such identity would breach a confidentiality obligation in effect prior to the execution of this Agreement) and the material terms and conditions of any proposals or offers (including, if applicable, copies of any written requests, proposals or offers, including proposed agreements, which in each case may be redacted, if necessary to remove the identity of any Third Party to comply with any confidentiality obligation in effect prior to the execution of this Agreement) and thereafter, subject to the foregoing confidentiality qualifications, shall (i) keep Parent reasonably informed, on a prompt and timely basis, of the status and terms of any such proposals or offers (including any material amendments thereto) and the status of any such discussions or negotiations, and (ii) provide to Parent as soon as practicable copies of all written proposals or offers (including proposed agreements) sent or provided to the Company or any of its Subsidiaries from any Person (or such Person’s Representative) making an Acquisition Proposal that describes any of the financial or other material terms or conditions of such Acquisition Proposal.
(d) Except as set forth in Section 6.04(e) and Section 6.04(g), the Board of Directors of the Company and each committee of the Board of Directors of the Company shall not:
(i) withhold, withdraw, qualify or modify (or publicly propose or announce any intention to or resolve to withhold, withdraw, qualify or modify), in a manner adverse to Parent or Merger Subsidiary, the Company Board Recommendation;
(ii) other than in the case of an Acquisition Proposal in the form of a tender offer or exchange offer, fail to publicly affirm the Company Board Recommendation upon Parent’s written request within five (5) Business Days after such request after a public announcement of an Acquisition Proposal;
(iii) (A) fail to recommend against acceptance of any tender offer or exchange offer that is publicly disclosed (other than by Parent or any of its Subsidiaries) prior to the eleventh (11th) Business Day after the commencement of such tender or exchange offer pursuant to Rule 14d-2 under the 1934 Act or (B) recommend that the stockholders of the Company tender their shares of Company Stock in such tender offer or exchange offer;
(iv) fail to include the Company Board Recommendation in the Company Proxy Statement/Prospectus in connection with the Company Stockholder Meeting; or
(v) approve, adopt, recommend, or publicly propose to approve, adopt or recommend, any Acquisition Proposal within (any action described in Sections 6.04(d)(i) through 6.04(d)(v) being referred to as an “Adverse Recommendation Change”).
(e) Notwithstanding anything to the six months contrary set forth in this Agreement but subject to Section 6.04(f), prior to the time, but not after, the Company Stockholder Approval is obtained, if an Acquisition Proposal has been made after the execution of this Agreement, the Board of Directors of the Company may make an Adverse Recommendation Change in response to such Acquisition Proposal or terminate this Agreement pursuant to Section 10.01 if, and only if, (i) such Acquisition Proposal did not result from a material breach by the Company, any of its Subsidiaries or its or their respective Representatives of this Section 6.04; and (ii) the Board of Directors of the Company determines in good faith after consultation with its outside legal counsel and with its financial advisor that such Acquisition Proposal constitutes a Superior Proposal.
(f) Prior to making any Adverse Recommendation Change in connection with an Acquisition Proposal and prior to terminating this Agreement pursuant to Section 10.01 (to the extent permitted under Section 6.04), the Company shall deliver to Parent a written notice (a “Superior Proposal Notice”) stating that the Board of Directors of the Company intends to take such action pursuant to Section 6.04 and, if applicable, intends to cause the Company to enter into an Alternative Acquisition Agreement, a copy of the proposed form of which shall be delivered with such notice, together with copies of any documents setting forth the Acquisition Proposal (which notice or intent shall not be an Adverse Recommendation Change or a violation of Section 6.04(d) or any other provision of this Section 6.04). During the three (3) Business Day period commencing on the first Business Day following the date hereof of Parent’s receipt of such Superior Proposal Notice (the “Negotiation Period”), the Company shall make its Representatives reasonably available for the purpose of engaging in negotiations with Parent (to return the extent Parent desires to negotiate) regarding a possible amendment of this Agreement so that the Acquisition Proposal that is the subject of the Superior Proposal Notice ceases to be a Superior Proposal. Any written proposal made by Parent to amend this Agreement during the Negotiation Period shall be considered by the Board of Directors of the Company in good faith. Each time the financial or destroy other material terms of such Acquisition Proposal are changed, the Company shall be required to deliver to Parent a new Superior Proposal Notice (including as attachments thereto a copy of the new Alternative Acquisition Agreement relating to such amended Acquisition Proposal and copies of any related documents), and the Negotiation Period shall be extended by an additional three (3) Business Days from the date of Parent’s receipt of such new Superior Proposal Notice.
(g) Notwithstanding anything to the contrary set forth in this Agreement, prior to the time, but not after, the Company Stockholder Approval is obtained, the Board of Directors of the Company may make an Adverse Recommendation Change in response to an Intervening Event if, and only if, the Board of Directors of the Company determines in good faith after consultation with its outside legal counsel and with its financial advisor that a failure to make an Adverse Recommendation Change in response to such Intervening Event would be reasonably likely to be inconsistent with its fiduciary duties under Applicable Law; provided, however, that the Company shall deliver to Parent a written notice (the “Intervening Event Notice”) advising Parent of all available material information with respect to such informationIntervening Event and stating that the Board of Directors of the Company intends to take such action pursuant to this Section 6.04(g) (which notice or intent shall not be an Adverse Recommendation Change or a violation of Section 6.04(d) or any other provision of this Section 6.04). During the three (3) Business Day period commencing on the date of Parent’s receipt of the Intervening Event Notice (the “Intervening Negotiation Period”), the Company shall make its Representatives reasonably available for the purpose of engaging in negotiations with Parent (to the extent Parent desires to negotiate) regarding a possible amendment of this Agreement in order to enable the Board of Directors of the Company to proceed with the Company Board Recommendation. Any written proposal made by Parent to amend this Agreement during the Intervening Negotiation Period shall be considered by the Board of Directors of the Company in good faith.
(h) Notwithstanding anything to the contrary set forth this Agreement, unless this Agreement is terminated pursuant to, and in accordance with, Section 10.01, (i) the obligation of the Company to establish a record date for, give notice of, and, subject to Section 6.02, reconvene and hold the Company Stockholder Meeting and to hold a vote of the Company’s stockholders on the adoption of this Agreement and the Merger at the Company Stockholder Meeting pursuant to Section 6.02 shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission to it of any Acquisition Proposal (whether or not a Superior Proposal) or by an Adverse Recommendation Change, and (ii) in any case in which the Company makes an Adverse Recommendation Change pursuant to this Section 6.04, the Company shall nevertheless submit this Agreement to a vote of its stockholders at the Company Stockholder Meeting for the purpose of the approval of this Agreement.
(i) Nothing contained in this Agreement shall prevent the Company or the Board of Directors of the Company from (i) taking and disclosing to its stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the 1934 Act (or any similar communication to its stockholders in connection with the making or amendment of a tender offer or exchange offer) or from making any disclosure to its stockholders with regard to the transactions contemplated by this Agreement or an Acquisition Proposal which the Board of Directors of the Company (after consultation with outside counsel) determines in its good faith judgment that failure to make such disclosure would reasonably be expected to violate U.S. federal or state securities Law or other Applicable Law or its fiduciary obligations under Applicable Law; provided that the Board of Directors of the Company may not effect an Adverse Recommendation Change unless permitted to do so by this Section 6.04; provided, further, that notwithstanding anything herein to the contrary, any “stop, look and listen” disclosure in and of itself shall not be considered an Adverse Recommendation Change or (ii) contacting and engaging in discussions with any Person or group and their respective Representatives who has made an Acquisition Proposal solely for the purpose of clarifying such Acquisition Proposal and the terms thereof.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Carmike Cinemas Inc), Agreement and Plan of Merger (Amc Entertainment Holdings, Inc.)
No Solicitation; Other Offers. (a) Neither Siebel nor any Subject to Section 5.02(b) and Section 5.02(d), from and after the date hereof until the earlier to occur of the Effective Time or the termination of this Agreement pursuant to Section 9.01:
(i) the Company shall not, and shall cause its Subsidiaries shall, nor shall Siebel or any of and its Subsidiaries authorize or permit any of its or and their respective officers, directors, employees, investment bankers, attorneys, accountants or accountants, consultants and other authorized agents, advisors or representatives or advisors (the collectively, “Siebel Representatives”) not to, directly or indirectly, (iA) solicit, initiate, initiate or take any action to knowingly facilitate or knowingly encourage the submission of any Acquisition Proposal, (iiB) enter into or participate in any discussions or negotiations with, furnish any non-public information relating to Siebel the Company or any of its Subsidiaries to or afford access to the business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries to to, any Third Party that has madethat, or has informed Siebel that it to the knowledge of the Company, is seeking to make, an Acquisition Proposal, (iii) grant any Third Party waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel or any of its Subsidiaries or amend or terminate the Siebel Rights Plan or redeem the Siebel Rights or (iv) enter into any agreement (except for confidentiality agreements, referred to in Section 6.04(b)) with any Third Party with respect to an Acquisition Proposal made by such Third Party, or any other agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Mergers or any of the other transactions contemplated by this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, Siebel (through one or more of the Siebel Representatives) or its Board of Directors may, prior to the Siebel Stockholder Approval, (i) engage in negotiations or discussions with any Third Party (or with the representatives of any Third Party) that has made an Acquisition Proposal not solicited in violation of Section 6.03(a) if such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal (such Third Party, a “Qualified Third Party”), (ii) furnish to such Qualified Third Party or its representatives non-public information relating to Siebel or any of its Subsidiaries pursuant to an executed confidentiality agreement containing customary nondisclosure provisions (which need not include “standstill ” or similar provisions) (and a copy of which shall be promptly (in all events within 24 hours) provided for informational purposes only to Oracle), (iii) grant a waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel or any of its Subsidiaries, (iv) amend or terminate the Siebel Rights Plan or redeem the Siebel Rights, (v) withdraw the Siebel Board Recommendation or modify the Siebel Board Recommendation in a manner adverse to Oracle (any such action, a “Change in Recommendation”), (vi) terminate this Agreement pursuant to and subject to the terms of Section 9.01(d) and/or (vii) take any action that any court of competent jurisdiction orders Siebel, one or more of the Siebel Representatives or the Board of Directors of Siebel to take, but in each case referred to in the foregoing clauses (iii), (iv) and (v) only if the Board of Directors of Siebel determines in good faith by a majority vote, after consultation with its outside legal counsel, that failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Law. Nothing contained herein shall prevent the Board of Directors of Siebel from complying with Rule 14e-2(a), Rule 14d-9 and Item 1012(a) of Regulation M-A under the 1934 Act with regard to an Acquisition Proposal; provided that the Board of Directors of Siebel shall not recommend that Siebel’s stockholders tender shares of capital stock in connection with any tender or exchange offer unless such Board of Directors shall have determined in good faith by a majority vote, after consultation with its outside legal counsel, that failure to make such recommendation would be reasonably likely to result in a breach of its fiduciary duties under applicable Law.
(c) The Board of Directors of Siebel shall not take any of the actions referred to in clauses (i) through (vii) of the preceding subsection unless Siebel shall have delivered to Oracle a prior written notice advising Oracle that it intends to take such action. In addition, Siebel shall notify Oracle promptly (but in no event later than 24 hours) after an officer or director first obtains Knowledge of the receipt by Siebel (or any of the Siebel Representatives) of any Acquisition Proposal, any inquiry that would reasonably be expected to lead to an Acquisition Proposal, or any request for confidential information relating to Siebel or any of its Subsidiaries or for access to the business, properties, assets, books or records of Siebel or any of its Subsidiaries by any Third Party that has informed Siebel that it is considering making, or has made, an Acquisition Proposal. Siebel shall provide such notice orally and , (C) withhold, withdraw or modify in writing and shall identify a manner adverse to Parent or publicly propose to withhold, withdraw or modify in a manner adverse to Parent the Third Party makingCompany Board Recommendation, and the material terms and conditions ofrecommend, any such Acquisition Proposaladopt or approve or publicly propose to recommend, inquiry adopt or request. Siebel shall promptly provide Oracle with any non-public information concerning Siebel’s business, present or future performance, financial condition or results of operations, provided to any Qualified Third Party after the date of this Agreement in connection with approve an Acquisition Proposal made by or resolve, agree or publicly propose to take any such Third Party that was not previously provided to Oracle. Siebel shall keep Oracle promptly and reasonably informed, on a reasonably current basis, actions (any of the status and material details foregoing in this clause (C), a “Company Adverse Recommendation Change”) or (D) enter into any agreement in principle, letter of any such intent, term sheet, merger agreement, acquisition agreement, or other similar instrument (whether or not binding) constituting or relating to an Acquisition Proposal, inquiry or request. Siebel ; and
(ii) the Company shall, and shall cause its Subsidiaries and the Siebel its and their respective Representatives to, cease immediately and cause to be terminated terminate immediately any and all existing activities, discussions or negotiations, if any, with any Third Party with respect to any Acquisition Proposal and shall immediately instruct any such Third Party (or its agents or advisors) in possession of confidential information about Siebel the Company that was furnished by or on behalf of Siebel the Company in connection with respect to any actual or potential Acquisition Proposal within the six months prior to the date hereof to return or destroy all such information.
(b) Notwithstanding the foregoing, at any time on or after the date hereof and prior to receipt of the Company Shareholder Approval, the Company or the Company Board, directly or indirectly through its Representatives, may (i) engage in negotiations or discussions (including, as a part thereof, making any counterproposal or counter offer to) with any Third Party that has made a bona fide unsolicited Acquisition Proposal after the date hereof that did not arise in connection with any failure to comply with Section 5.02(a) and that the Company Board believes in good faith (after consultation with a financial advisor of nationally recognized reputation and outside legal counsel) constitutes or would reasonably be expected to lead to a Superior Proposal and (ii) thereafter furnish to such Third Party nonpublic information relating to the Company or any of its Subsidiaries pursuant to a confidentiality agreement with terms no less favorable to the Company than those contained in the Confidentiality Agreement, except that such confidentiality agreement (x) shall contain additional provisions that expressly permit the Company to comply with its obligations under this Agreement and (y) need not contain the “standstill” provisions set forth in Section 7 of the Confidentiality Agreement (“Acceptable Confidentiality Agreement”); provided that all such information (to the extent that such information has not been previously provided or made available to Parent) is provided or made available to Parent, as the case may be, promptly (and, in any event, within twenty-four hours) following the time it is provided or made available to such Third Party, but in each case referred to in the foregoing clauses (i) through (ii) only if (A) the Company Board determines in good faith, after consultation with outside legal counsel to the Company, that failure to take such action could reasonably be expected to be inconsistent with its fiduciary duties under Applicable Law and (B) the Company gives Parent not less than twenty-four hours prior written notice of the identity of such Third Party and the material terms of such Acquisition Proposal (unless such Acquisition Proposal is in written form, in which case the Company shall give Parent a copy thereof) and of the Company’s intention to participate or engage in discussions or negotiations with, or furnish non-public information to, such Third Party.
(c) Nothing contained herein shall prevent the Company Board from complying with requirements of Rule 14e-2(a) under the 1934 Act or complying with the requirements of Rule 14d-9 under the 1934 Act with regard to an Acquisition Proposal, so long as any action taken or statement made to so comply is consistent with Section 5.02(a). For the avoidance of doubt, a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) under the 1934 Act, an express rejection of any applicable Acquisition Proposal or an express reaffirmation of its recommendation to the shareholders of the Company in favor of the Merger shall not be deemed to be a Company Adverse Recommendation Change (including for purposes of Section 9.01(c)(i)).
(d) Notwithstanding the foregoing, if prior to receipt of the Company Shareholder Approval, the Company Board receives a Superior Proposal or there occurs an event, fact, circumstance or development, that occurs after the date hereof that was not known or foreseen by the Company Board as of the date hereof (and not related to any Acquisition Proposal), that becomes known prior to receipt of the Company Shareholder Approval (a “Company Intervening Event”), the Company Board shall be entitled to effect a Company Adverse Recommendation Change provided that (i) the Company Board determines in good faith, after consultation with outside legal counsel to the Company, that failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under Applicable Law, and in the case of a Superior Proposal, the Company Board approves or recommends such Superior Proposal; (ii) the Company has notified Parent in writing that it intends to effect a Company Adverse Recommendation Change, describing in reasonable detail the reasons for such Company Adverse Recommendation Change, including the material terms and conditions of any such Superior Proposal and a copy of the final form of any related agreements or a description in reasonable detail of such Company Intervening Event, as the case may be; (iii) a three-Business Day period commencing with the first Business Day after the delivery of the notice and other materials under Section 5.02(d)(ii) shall have expired and, if requested by Parent, the Company shall have made its Representatives available to discuss and negotiate in good faith with Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement during this three-Business Day period following delivery by the Company to Parent of such notice; and (iv) if Parent shall have delivered a binding proposal capable of being accepted by the Company to amend the terms of this Agreement during such three-Business Day period, the Company Board shall have determined in good faith, after consultation with outside legal counsel, that failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under Applicable Law. Any material amendment or modification to any Superior Proposal, or any change to the amount or form of consideration in a Superior Proposal, made following delivery of the notice and other materials under Section 5.02(d)(ii) will be deemed to be a new Superior Proposal for purposes of this Section 5.02 and shall require delivery of new notice and other materials under Section 5.02(d)(ii) and a new three-Business Day period under Section 5.02(d)(iii). Notwithstanding the foregoing, the obligation of the Company to deliver a new notice and other materials under Section 5.02(d)(ii) and to provide a new three-Business Day period under Section 5.02(d)(iii) shall apply only twice with respect to a particular Superior Proposal regardless of any subsequent amendment, modification or change to such Superior Proposal, and following the expiration of such final three-Business Day period, the Company shall have no further obligation pursuant to the last sentence of Section 5.02(e) with respect to such Superior Proposal.
(e) The Company shall notify Parent promptly (but in no event later than twenty-four hours) after receipt by the Company (or any of its Representatives) of any Acquisition Proposal, any inquiry that would be reasonably expected to lead to an Acquisition Proposal or of any request for information relating to the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of the Company or any of its Subsidiaries by any Third Party that to the knowledge of the Company may be considering making, or has made, an Acquisition Proposal, which notice shall be provided in writing and shall identify the person making, and the material terms and conditions of, any such Acquisition Proposal, inquiry or request (including any material changes thereto and copies of any written materials received from such Third Party or its Representatives in connection therewith). The Company shall keep Parent reasonably informed of any material change to any Acquisition Proposal, inquiry or request for information.
Appears in 2 contracts
Samples: Merger Agreement (Rehabcare Group Inc), Merger Agreement (Kindred Healthcare, Inc)
No Solicitation; Other Offers. (a) Neither Siebel the Company nor any of its Subsidiaries shall, nor shall Siebel or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants accountants, consultants or other agents, representatives agents or advisors (the “Siebel Representatives”) to, directly or indirectly, (i) solicit, initiate, knowingly initiate or take any action to facilitate or knowingly encourage the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any non-public information relating to Siebel the Company or any of its Subsidiaries to or afford access to the business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries to to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that has made, or has informed Siebel that it is seeking to make, or has made, an Acquisition Proposal, (iii) grant any Third Party waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel the Company or any of its Subsidiaries or amend or terminate the Siebel Rights Plan or redeem the Siebel Rights or (iv) enter into any agreement (except for confidentiality agreements, referred to in Section 6.04(b)) with any Third Party with respect to an Acquisition Proposal made by such Third Party, or any other agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Mergers or any of the other transactions contemplated by this AgreementProposal.
(b) Notwithstanding anything to the contrary contained in this Agreementforegoing, Siebel (through one or more of the Siebel Representatives) or its Board of Directors mayof the Company, prior to the Siebel Stockholder Approvaldirectly or indirectly through advisors, (i) agents or other intermediaries, may engage in negotiations or discussions with any Third Party (that, without prior solicitation by or negotiation with the representatives of any Third Party) that Company has made an Acquisition Proposal not solicited in violation of Section 6.03(a) if such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal (such Third Party, a “Qualified Third Party”), (ii) and furnish to such Qualified Third Party or its representatives non-public nonpublic information relating to Siebel the Company or any of its Subsidiaries pursuant to an executed a confidentiality agreement containing customary nondisclosure provisions with terms no less favorable to the Company than those contained in the Confidentiality Agreement (which need not include “standstill ” or similar provisions) (and a copy of which shall be promptly (in all events within 24 hours) such other confidentiality agreement being provided for informational purposes only to OracleParent). Following receipt of such Superior Proposal, (iii) grant a waiver or release under any standstill or similar agreement with respect the Company's Board of Directors may fail to any class of equity securities of Siebel or any of its Subsidiariesmake, (iv) amend or terminate the Siebel Rights Plan or redeem the Siebel Rights, (v) withdraw the Siebel Board Recommendation or modify the Siebel Board Recommendation in a manner adverse to Oracle (any such actionParent its recommendation to its shareholders referred to in Section 6.02 hereof, a “Change in Recommendation”), (vi) terminate this Agreement pursuant to and subject to the terms of Section 9.01(d) and/or (vii) take any non-appealable, final action that any court of competent jurisdiction orders Siebel, one or more of the Siebel Representatives or the Board of Directors of Siebel Company to take, but in each case referred to in the foregoing clauses subsections (iii), i) through (iv) and (vof Section 6.03(a) only if the Board of Directors of Siebel the Company determines in good faith by a majority vote, after consultation with considering advice of its outside legal counsel, counsel and financial advisors that failure to it must take such action would be reasonably likely to result in a breach of comply with its fiduciary duties under applicable Lawlaw. Nothing contained herein shall prevent the Board of Directors of Siebel the Company from complying with Rule 14e-2(a), ) or Rule 14d-9 and Item 1012(a) of Regulation M-A under the 1934 Act with regard to an Acquisition ProposalProposal or from making other disclosures to the Company's shareholders if required under applicable law; provided that the Board of Directors of Siebel shall not recommend that Siebel’s stockholders tender shares of capital stock in connection with any tender or exchange offer unless such Board of Directors shall have determined in good faith by a majority voteprovided, after consultation with its outside legal counselhowever, that failure to make any such recommendation would be reasonably likely to result in a breach response shall comply with the other requirements of its fiduciary duties under applicable Lawthis Section 6.03.
(c) The Board of Directors of Siebel the Company shall not take any of the actions referred to in clauses subsections (i) through (viiiv) of Section 6.03(a) unless the preceding subsection unless Siebel Company shall have delivered to Oracle Parent a prior written notice advising Oracle Parent that it intends to take such action, and the Company shall continue to keep Parent informed, on a current basis, with respect to such Superior Proposal after taking such action. In addition, Siebel the Company shall notify Oracle Parent promptly (but in no event later than 24 hours) after an officer or director first obtains Knowledge of the receipt by Siebel the Company (or any of the Siebel Representativesits advisors) of any Acquisition Proposal, any inquiry indication that would reasonably be expected to lead to a Third Party is considering making an Acquisition Proposal, Proposal or of any request for confidential information relating to Siebel the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries by any Third Party that has informed Siebel that it is may be considering making, or has made, an Acquisition Proposal. Siebel The Company shall provide such notice orally and within one business day in writing and shall identify the Third Party making, and the material terms and conditions of, any such Acquisition Proposal, inquiry indication or request. Siebel The Company shall promptly provide Oracle with within one Business Day of receipt a copy of any non-public information concerning Siebel’s businessdocumentation of the terms of any such inquiry, present proposal or future performanceoffer, financial condition or results of operations, provided to any Qualified Third Party after the date of this Agreement in connection with an Acquisition Proposal made by such Third Party that was not previously provided to Oracle. Siebel and thereafter shall keep Oracle promptly and reasonably Parent informed, on a reasonably current basis, of the status and material details terms of any such Acquisition Proposal, inquiry proposals or requestoffers and the status of any such discussions or negotiations (including by delivering any further documentation of the type referred to above). Siebel The Company shall, and shall cause its Subsidiaries and the Siebel Representatives advisors, employees and other agents of the Company and any of its Subsidiaries to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to the date hereof with respect to any Acquisition Proposal and shall instruct use all reasonable efforts to cause any such Third Party (or its agents or advisors) in possession of confidential information about Siebel the Company that was furnished by or on behalf of Siebel with respect to any Acquisition Proposal within the six months prior to the date hereof Company to return or destroy all such information.
(d) In the event the Company receives a Superior Proposal, the Company and its Board of Directors shall not take any actions referred to under Section 6.03(b) until the Company has negotiated in good faith with Parent with respect to the terms of the Merger for a period of five (5) Business Days from the date Parent receives written notice of all material terms and conditions of the Superior Proposal (including any documents related thereto) as set forth in Section 6.03(c). In the event the Company subsequently receives any amendments or changes to such Superior Proposal, the Company and its Board of Directors shall not take any actions referred to under Section 6.03(b) until the Company has negotiated in good faith with Parent with respect to the terms of the Merger for a period of five (5) Business Days from the date Parent receives written notice of all material terms and conditions of such original Superior Proposal, as amended or changed (including any documents related thereto) as set forth in Section 6.03(c) and such written notice shall specify if the Company and its Board of Directors intend to take any actions referred to under Section 6.03(b).
Appears in 2 contracts
Samples: Merger Agreement (Computer Network Technology Corp), Merger Agreement (McData Corp)
No Solicitation; Other Offers. (a) Neither Siebel From and after the execution of this Agreement by all of the parties hereto until the earlier of the Effective Time and the termination of this Agreement pursuant to Article 10, neither the Company nor any of its Subsidiaries shall, nor shall Siebel or any of and the Company and its Subsidiaries authorize or permit any of shall instruct its or their officers, directors, employees, investment bankers, attorneys, accountants accountants, consultants or other agents, representatives agents or advisors (the “Siebel Representatives”) not to, directly or indirectly, (i) solicit, initiate, knowingly facilitate encourage or knowingly encourage take any action designed to facilitate, or that could reasonably be expected to lead to, the submission of any Acquisition Proposal, (ii) enter into or participate engage in any discussions or negotiations with, or furnish any non-public information relating to Siebel the Company or any of its Subsidiaries to or afford access to the businessto, properties, assets, books or records of Siebel or any of its Subsidiaries to any Third Party that has made, or has informed Siebel that it to the Knowledge of the Company is seeking to make, or has made, an Acquisition Proposal, (iii) agree to, approve or recommend any Acquisition Proposal or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal (subject to the provisions of Section 6.03(b) below), or (iv) (A) amend or grant any Third Party waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel the Company or any of its Subsidiaries or amend or terminate the Siebel Rights Plan or redeem the Siebel Rights or (ivB) enter into any agreement (except for confidentiality agreements, referred to in Section 6.04(b)) with any Third Party with respect to an Acquisition Proposal made by such Third Party, or any (other agreement, arrangement or understanding requiring it than a confidentiality agreement pursuant to abandon, terminate or fail to consummate the Mergers or any of the other transactions contemplated by this AgreementSection 6.03(b)(ii)).
(b) Notwithstanding anything to the contrary contained in this Agreementforegoing, Siebel (through one the Special Committee or more of the Siebel Representatives) or its Board of Directors of the Company, directly or indirectly through advisors, agents or other intermediaries, may, prior in response to an unsolicited, bona fide Acquisition Proposal, from a Third Party which the Siebel Stockholder ApprovalSpecial Committee or the Board of Directors of the Company determines in good faith has sufficient financial resources available to it to consummate such a transaction, that the Special Committee of the Company's Board of Directors determines in good faith is reasonably likely to result in a Superior Proposal (provided such Acquisition Proposal is not received in violation of Section 6.03(a)), if the Special Committee or the Company's Board of Directors determines in good faith (after consultation with its financial and legal advisors) that such action is necessary for the Special Committee or the Company's Board of Directors to comply with its fiduciary duties under applicable law, (i) engage in negotiations or discussions with any the Third Party (or with the representatives of any Third Party) that has made an Acquisition Proposal not solicited in violation of Section 6.03(a) if making such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal (such Third Party, a “Qualified Third Party”)Proposal, (ii) furnish to such Qualified Third Party or its representatives non-non public information relating to, and afford access to Siebel the business, properties, assets, books and records of, the Company or any of its Subsidiaries pursuant to an executed confidentiality agreement containing customary nondisclosure provisions (which need not include “standstill ” or similar provisions) (terms and a copy conditions at least as restrictive in the aggregate as contained in that certain confidentiality agreement dated as of which shall be promptly (in all events within 24 hours) provided for informational purposes only to Oracle)April 30, 2003 between Xxxxxx Associated Companies, Inc. and the Company, (iii) amend or grant a any waiver or release under any standstill or similar agreement with respect referred to any class of equity securities of Siebel or any of its Subsidiaries, in Section 6.03(a)(iv)(A) and/or (iv) amend or terminate the Siebel Rights Plan or redeem the Siebel Rights, (v) withdraw the Siebel Board Recommendation or modify the Siebel Board Recommendation enter into a Superior Proposal Agreement in a manner adverse to Oracle (any such action, a “Change in Recommendation”accordance with Section 10.01(d)(ii), (vi) terminate this Agreement pursuant to and subject to the terms of Section 9.01(d) and/or (vii) take any action that any court of competent jurisdiction orders Siebel, one or more of the Siebel Representatives or the Board of Directors of Siebel to take, but in each case referred to in the foregoing clauses (iii), (iv) and (v) only if the Board of Directors of Siebel determines in good faith by a majority vote, after consultation with its outside legal counsel, that failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Law. Nothing contained herein shall prevent the Board of Directors of Siebel the Company from complying (i) taking any action that any court of competent jurisdiction orders the Company to take, (ii) making with Rule 14e-2(a)respect to an Acquisition Proposal a "stop look and listen" communication of the nature contemplated in, and otherwise in compliance with, Rule 14d-9 and Item 1012(a14d-9(f) of Regulation M-A under the 1934 Act as a result of receiving an Acquisition Proposal or (iii) with regard to an Acquisition Proposal; provided that , complying with Rules 14e-2(a) or 14d-9 under the 1934 Act or making such disclosure to the Company's stockholders as, in the good faith judgment of the Special Committee or the Company's Board of Directors of Siebel shall not recommend that Siebel’s stockholders tender shares of capital stock in connection with any tender or exchange offer unless such Board of Directors shall have determined in good faith by a majority vote, (after consultation with its outside legal counseladvisors), that failure is necessary for the Company's Board of Directors to make such recommendation would be reasonably likely to result in a breach of comply with its fiduciary duties under applicable Lawlaw.
(c) The Board of Directors of Siebel the Company shall not take any of the actions referred to in clauses (i) through (viiiv) of the preceding subsection first sentence of Section 6.03(b) or in the proviso to the second sentence of Section 6.02 unless Siebel shall have delivered the Company delivers to Oracle Parent no later than 24 hours prior to the taking of such action a prior written notice advising Oracle Parent that it intends to will take such action. In addition, Siebel the Company shall notify Oracle Parent promptly (but in no event later than 24 48 hours) after an officer or director first obtains Knowledge of the receipt by Siebel the Company (or any of the Siebel Representativesits advisors) of any Acquisition Proposal, any inquiry that would reasonably be expected to lead to an Acquisition Proposal, Proposal or of any request for confidential information relating to Siebel the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries (other than such components of such businesses, properties or assets that are generally accessible to the public) by any Third Party that has informed Siebel that it is to the Knowledge of the Company may be considering making, or has made, an Acquisition Proposal. Siebel The Company shall provide such notice orally and in writing and shall identify the Third Party making, and the material terms and conditions of, any such Acquisition Proposal, inquiry indication or request. Siebel shall promptly provide Oracle with any non-public information concerning Siebel’s business, present or future performance, financial condition or results of operations, provided to any Qualified Third Party after the date of this Agreement in connection with an Acquisition Proposal made by such Third Party that was not previously provided to Oracle. Siebel The Company shall keep Oracle promptly and reasonably informedParent informed in all material respects, on a reasonably current prompt basis, of the status and material details of any such Acquisition Proposal, inquiry indication or request. Siebel The Company shall, and shall cause its Subsidiaries and the Siebel Representatives advisors, employees and other agents of the Company and any of its Subsidiaries to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to the execution of this Agreement by all parties hereto with respect to any Acquisition Proposal and shall instruct any such Third Party (or its agents or advisors) in possession of confidential information about Siebel that was furnished by or on behalf of Siebel with respect to any Acquisition Proposal within request the six months prior to the date hereof to return or destroy destruction of all such informationinformation provided to Third Parties pursuant to a confidentiality agreement.
Appears in 2 contracts
Samples: Merger Agreement (Sylvan Inc), Merger Agreement (Sylvan Inc)
No Solicitation; Other Offers. (a) Neither Siebel The Company agrees that neither it nor any of its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, nor and that it shall Siebel cause its and its Subsidiaries’ employees, agents and representatives (including any investment banker, attorney, accountant or other advisor retained by it or any of its Subsidiaries authorize for services provided in connection with the transactions contemplated by this Agreement whether as of the date hereof or permit any time hereafter) (collectively, “Representatives”) not to, directly or indirectly, initiate, solicit or knowingly encourage or facilitate any Acquisition Proposal. The Company further agrees that neither it nor any of its Subsidiaries nor any of the officers and directors of it or their officersits Subsidiaries shall, directors, and that it shall cause its and its Subsidiaries’ employees, investment bankers, attorneys, accountants or other agents, representatives or advisors (the “Siebel Representatives”) agents and Representatives not to, directly or indirectly, (i) solicitengage in any negotiations concerning, initiateor provide any confidential information or data to, knowingly facilitate or have any discussions with, any Person relating to an Acquisition Proposal, or otherwise knowingly encourage the submission of or facilitate any effort or attempt to make or implement an Acquisition Proposal, (ii) enter into amend or participate in any discussions or negotiations with, furnish any non-public information relating to Siebel or any of its Subsidiaries to or afford access to the business, properties, assets, books or records of Siebel or any of its Subsidiaries to any Third Party that has made, or has informed Siebel that it is seeking to make, an Acquisition Proposal, (iii) grant any Third Party waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel the Company or any of its Subsidiaries or amend or terminate (unless Parent’s obligations under the Siebel Rights Plan or redeem the Siebel Rights or (iv) enter into any agreement (except for confidentiality agreements, referred to in Section 6.04(b)) with any Third Party with respect to an Acquisition Proposal made by such Third Party, or any other agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Mergers or any of the other transactions contemplated by this Agreement.
(b) Notwithstanding anything to the contrary standstill provisions contained in this the Confidentiality Agreement dated May 27, 2005 between the Company and Parent (the “Confidentiality Agreement, Siebel (through one or more of the Siebel Representatives”) or its Board of Directors may, prior to the Siebel Stockholder Approval, (i) engage in negotiations or discussions with any Third Party (or with the representatives of any Third Party) that has made an Acquisition Proposal not solicited in violation of Section 6.03(a) if such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal (such Third Party, a “Qualified Third Party”), (ii) furnish to such Qualified Third Party or its representatives non-public information relating to Siebel or any of its Subsidiaries pursuant to an executed confidentiality agreement containing customary nondisclosure provisions (which need not include “standstill ” or similar provisions) (and a copy of which shall be promptly (in all events within 24 hours) provided for informational purposes only to Oracleare simultaneously waived), (iii) grant a waiver or release under approve any standstill or similar agreement with respect to any class of equity securities of Siebel transaction under, or any Third Party becoming an “interested stockholder” under, Section 203 of its Subsidiariesthe Delaware Law, (iv) amend or terminate the Siebel Rights Plan grant any waiver or release or approve any transaction or redeem any Company Rights under the Siebel RightsCompany Rights Agreement, (v) withdraw the Siebel Board make any Adverse Company Recommendation or modify the Siebel Board Recommendation in a manner adverse to Oracle (any such action, a “Change in Recommendation”), connection with an Acquisition Proposal or (vi) terminate enter into any definitive agreement with respect to an Acquisition Proposal; provided, however, that nothing contained in this Agreement pursuant to and subject to shall prevent the terms of Section 9.01(d) and/or (vii) take any action that any court of competent jurisdiction orders Siebel, one Company or more of the Siebel Representatives or the its Board of Directors of Siebel to take, but in each case referred to in the foregoing clauses from (iii), (iv1) and (v) only if the Board of Directors of Siebel determines in good faith by a majority vote, after consultation complying with its outside legal counsel, that failure to take such action would be reasonably likely to result in a breach of its fiduciary duties disclosure obligations under applicable Law. Nothing contained herein shall prevent the Board of Directors of Siebel from complying with Rule 14e-2(a), Rule Sections 14d-9 and Item 1012(a14e-2(a) of Regulation M-A under the 1934 Exchange Act with regard to an Acquisition Proposal; provided provided, however, that if such disclosure constitutes an Adverse Company Recommendation Change, Parent shall have the right to terminate this Agreement as set forth in Section 10.01(c)(i) of this Agreement; and (2) at any time prior to, but not after, the time this Agreement is adopted by the Company Stockholder Approval, (A) providing information in response to a request therefor by a Person who has made an unsolicited bona fide written Acquisition Proposal if the Board of Directors of Siebel shall not recommend that Siebelthe Company receives from the Person so requesting such information, prior to the provision of any such information, an executed confidentiality agreement on terms no less favorable to the Company than those contained in the Confidentiality Agreement (provided that, such executed confidentiality agreement may contain less favorable standstill provisions as long as Parent’s stockholders tender shares obligations under the standstill provisions contained in the Confidentiality Agreement are simultaneously waived); (B) engaging in any negotiations or discussions with any Person who has made an unsolicited bona fide written Acquisition Proposal if the Board of capital stock Directors of the Company receives from such Person, prior thereto, an executed confidentiality agreement as described in the immediately preceding clause (A); or (C) recommending or making any Adverse Company Recommendation Change in connection with any tender such an unsolicited bona fide written Acquisition Proposal to the stockholders of the Company, if and only to the extent that, (x) in each such case referred to in clause (A), (B) or exchange offer unless such (C) above, the Board of Directors shall have determined of the Company determines in good faith by a majority voteafter consultation with outside legal counsel that such action is necessary in order for its directors to comply with their respective fiduciary duties, (y) in each case referred to in clause (B) or (C) above, the Board of Directors of the Company determines in good faith (after consultation with its financial advisor and its outside legal counsel) that such Acquisition Proposal, that failure to make such recommendation would be if accepted, is reasonably likely to be consummated, taking into account all legal, financial and regulatory aspects of the proposal, the likelihood of obtaining financing, and the Person making the proposal, and if consummated, would result in a breach transaction more favorable to the Company’s stockholders from a financial point of its fiduciary duties under applicable Law.
view than the transaction contemplated by this Agreement taking into account any change proposed by Parent; and (cz) The Board in the case of Directors of Siebel clause (C), Parent shall not take any have had written notice of the actions Company’s intention to take the action referred to in clauses clause (iC) through at least 20 Business Days prior to the taking of such action by the Company (vii) which notice shall have attached the most current version of the preceding subsection unless Siebel agreement relating to the Acquisition Proposal in question and a summary of any other material terms relating thereto) and Parent shall, and shall have delivered cause its Representatives to, during such 20 Business Day period, negotiate in good faith with Parent with respect to Oracle any changes Parent may wish to make with respect to its proposal; provided, that any more favorable Acquisition Proposal referred to in clause (B) or (C) above must constitute an Acquisition Proposal that involves the acquisition, directly or indirectly, of 50% or more of the voting power of the Company Stock or the assets of the Company and its Subsidiaries taken as a prior written notice advising Oracle whole (any such more favorable Acquisition Proposal is referred to in this Agreement as a “Superior Proposal”). The Company agrees that it intends will immediately cease and cause to take such action. In additionbe terminated any existing activities, Siebel shall notify Oracle promptly (but in no event later than 24 hours) after an officer discussions or director first obtains Knowledge of the receipt by Siebel (or negotiations with any of the Siebel Representatives) of Person conducted heretofore with respect to any Acquisition Proposal, including any inquiry discussions or negotiations with respect to the possible sale of the Flextech Group. The Company agrees that would reasonably be expected it will take the necessary steps to lead promptly inform the individuals or entities referred to an Acquisition Proposalin the first sentence of this Section 6.03 of the obligations undertaken in this Section 6.03. The Company agrees that it will notify Parent promptly, but in any event within 48 hours if any proposals or offers referred to in this Section 6.03 are received by, any such information is requested from, or any request for confidential information relating such discussions or negotiations are sought to Siebel be initiated or continued with, it or any of its Subsidiaries or for access to Representatives indicating, in connection with such notice, the business, properties, assets, books or records name of Siebel or any of its Subsidiaries by any Third Party that has informed Siebel that it is considering making, or has made, an Acquisition Proposal. Siebel shall provide such notice orally and in writing and shall identify the Third Party making, Person and the material terms and conditions ofof any proposals or offers and thereafter shall keep Parent informed on a current basis, and, in any event, within 24 hours of any changes in the status, the terms and any other material details of any such Acquisition Proposalproposals or offers, inquiry including whether any such proposal has been withdrawn or requestrejected. Siebel shall promptly The Company also agrees to provide Oracle with any non-public information concerning Siebel’s businessto Parent that it is providing to another Person pursuant to this Section 6.03 at substantially the same time it provides it to such other Person. The Company agrees promptly, present or future performancebut in any event, financial condition or results of operations, provided to any Qualified Third Party within five days after the date of this Agreement in connection with an Acquisition Proposal made by such Third Party that was not previously Agreement, to request the return or destruction of all information and materials provided to Oracle. Siebel shall keep Oracle promptly and reasonably informed, on a reasonably current basis, of the status and material details of any such Acquisition Proposal, inquiry or request. Siebel shall, and shall cause its Subsidiaries and the Siebel Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party with respect to any Acquisition Proposal and shall instruct any such Third Party (or its agents or advisors) in possession of confidential information about Siebel that was furnished by or on behalf of Siebel with respect to any Acquisition Proposal within the six months prior to the date hereof of this Agreement by it, its Affiliates or their respective Representatives (and any information derived therefrom) with respect to return the consideration or destroy all such informationmaking of any Acquisition Proposal (including with respect to the possible sale of the Flextech Group) and the Company shall otherwise use its reasonable best efforts to enforce any confidentiality agreement relating thereto.
Appears in 2 contracts
Samples: Merger Agreement (Telewest Global Inc), Merger Agreement (NTL Inc)
No Solicitation; Other Offers. (a) Neither Siebel the Company nor any of its Subsidiaries shall, nor shall Siebel the Company or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants accountants, consultants or other agents, representatives agents or advisors (the “Siebel Representatives”) to, directly or indirectly, (i) solicit, initiate, initiate or knowingly take any action to facilitate or knowingly encourage the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any non-public information relating to Siebel the Company or any of its Subsidiaries to or afford access to the business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries to to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that has made, or has informed Siebel that it is seeking to make, or has made, an Acquisition Proposal, (iii) grant any Third Party waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel the Company or any of its Subsidiaries Subsidiaries, (iv) take any action to render the Company Rights issued pursuant to the terms of the Rights Agreement inapplicable to an Acquisition Proposal or amend the transactions contemplated thereby, exempt or terminate exclude any person from the Siebel definition of an Acquiring Person (as defined by the Rights Plan or redeem Agreement) under the Siebel terms of the Rights Agreement or, other than as contemplated by this Agreement in connection with the Offer, allow the Company Rights to expire prior to their expiration date or (ivv) enter into any agreement (except for confidentiality agreements, referred to in Section 6.04(b)) with any Third Party with respect to an Acquisition Proposal made by such Third Party, or any other agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Mergers or any of the other transactions contemplated by this AgreementProposal.
(b) Notwithstanding anything to the contrary contained in this Agreementforegoing, Siebel (the Company Board, directly or indirectly through one advisors, agents or more of the Siebel Representatives) or its Board of Directors mayother intermediaries, prior to the Siebel Stockholder Approval, may (i) engage in negotiations or discussions with any Third Party (or with that, without prior solicitation after the representatives of any Third Party) that date hereof by the Company, has made an a bona fide Acquisition Proposal not solicited in violation of Section 6.03(a) if such Acquisition Proposal constitutes or could that the Company Board reasonably be expected to believes will lead to a Superior Proposal (such Third Party, a “Qualified Third Party”)Proposal, (ii) furnish to such Qualified Third Party or its representatives non-public nonpublic information relating to Siebel the Company or any of its Subsidiaries pursuant to an executed a confidentiality agreement containing customary nondisclosure provisions with terms no less favorable in the aggregate to the Company than those contained in the Confidentiality Agreement (which need not include “standstill ” or similar provisions) (and a copy of which shall be promptly (in all events within 24 hours) provided simultaneously to Parent for informational purposes only to Oracleonly), (iii) grant following receipt of a waiver or release under any standstill or similar agreement with respect Superior Proposal, fail to any class of equity securities of Siebel or any of its Subsidiariesmake, (iv) amend or terminate the Siebel Rights Plan or redeem the Siebel Rights, (v) withdraw the Siebel Board Recommendation or modify the Siebel Board Recommendation in a manner adverse to Oracle (any such action, a “Change Parent its recommendation to its stockholders referred to in Recommendation”), (vi) terminate this Agreement pursuant to Sections 2.02 and subject to the terms of Section 9.01(d) 7.02 hereof and/or (viiiv) take any nonappealable, final action that any court of competent jurisdiction orders Siebel, one or more of the Siebel Representatives or the Board of Directors of Siebel Company to take, but in each case referred to in the foregoing clauses (i) through (iii), (iv) and (v) only if the Company Board of Directors of Siebel determines in good faith by a majority votevote of independent directors, after consultation with its Xxxxxx Xxxx & Xxxxxxxx LLP or Cleary, Gottlieb, Xxxxx & Xxxxxxxx, outside legal counselcounsel to the Company, that failure to it must take such action would be reasonably likely to result in a breach of comply with its fiduciary duties under applicable Lawlaw. Nothing contained herein shall prevent the Company Board of Directors of Siebel from complying with Rule 14e-2(a), Rule 14d-9 and Item 1012(a) of Regulation M-A under the 1934 Exchange Act with regard to an Acquisition Proposal; provided that the Board of Directors of Siebel shall not recommend that Siebel’s stockholders tender shares of capital stock in connection with any tender or exchange offer unless such Board of Directors shall have determined in good faith by a majority vote, after consultation with its outside legal counsel, that failure to make such recommendation would be reasonably likely to result in a breach of its fiduciary duties under applicable Law.
(c) The Company Board of Directors of Siebel shall not take any of the actions referred to in clauses (ib)(i) through (viib)(iii) of the preceding subsection unless Siebel the Company shall have delivered to Oracle Parent a prior written notice advising Oracle Parent that it intends to take such action, and the Company shall continue to advise Parent after taking such action. In addition, Siebel the Company shall notify Oracle Parent promptly (but in no event later than 24 hours) after an officer or director first obtains Knowledge of the receipt by Siebel (or any of the Siebel Representatives) Company of any Acquisition Proposal, any inquiry that would reasonably be expected to lead to an Acquisition Proposal, material modification of such proposal or any request for confidential information relating to Siebel the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries by any Third Party that has informed Siebel that it that, to the knowledge of the Company, is considering making, or has made, an Acquisition Proposal. Siebel The Company shall provide such notice orally and in writing and shall identify the Third Party making, and the material terms and conditions of, any such Acquisition Proposal, inquiry indication or request. Siebel shall promptly provide Oracle with any non-public information concerning Siebel’s business, present or future performance, financial condition or results of operations, provided to any Qualified Third Party after the date of this Agreement in connection with an Acquisition Proposal made by such Third Party that was not previously provided to Oracle. Siebel The Company shall keep Oracle promptly and reasonably Parent fully informed, on a reasonably current basis, of the status and material details of any such Acquisition Proposal, inquiry indication or request. Siebel The Company shall, and shall cause its Subsidiaries and the Siebel Representatives advisors, employees and other agents of the Company and any of its Subsidiaries to, cease immediately and cause to be terminated any and all existing activities, discussions or and negotiations, if any, with any Third Party conducted prior to the date hereof with respect to any Acquisition Proposal and shall instruct use its reasonable best efforts to cause any such Third Party (or its agents or advisors) in possession of confidential information about Siebel the Company that was furnished by or on behalf of Siebel with respect to any Acquisition Proposal within the six months prior to the date hereof Company to return or destroy all such information.
Appears in 2 contracts
Samples: Merger Agreement (Oracle Corp /De/), Merger Agreement (Oracle Corp /De/)
No Solicitation; Other Offers. (a) Neither Siebel nor any of Subject to Section 6.03(b), the Company shall not, and shall cause its Subsidiaries shallnot to, nor and shall Siebel or any of direct and use its Subsidiaries authorize or permit any of commercially reasonable efforts to cause its or and their officers, directors, employees, investment bankers, attorneys, accountants or accountants, consultants and other agents, advisors or representatives or advisors (the collectively, “Siebel Representatives”) not to, directly or indirectly, (i) solicit, initiate, knowingly initiate or take any action to facilitate or knowingly encourage the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any non-public information relating to Siebel the Company or any of its Subsidiaries to or afford access to the business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries to to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that has made, or has informed Siebel that it is seeking to make, or has made, an Acquisition Proposal, (iii) fail to make, withdraw or modify in a manner adverse to Parent or publicly propose to withdraw or modify in a manner adverse to Parent the Company Board Recommendation, or recommend, adopt or approve or publicly propose to recommend, adopt or approve an Acquisition Proposal (any of the foregoing in this clause (iii), an “Adverse Recommendation Change”), (iv) grant any Third Party waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel the Company or any of its Subsidiaries or amend or terminate the Siebel Rights Plan or redeem the Siebel Rights or (ivv) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument constituting or relating to an Acquisition Proposal (except for confidentiality agreements, referred to in agreements permitted under Section 6.04(b6.03(b)) with any Third Party with respect to an Acquisition Proposal made by such Third Party, or any other agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Mergers or any of the other transactions contemplated by this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, Siebel (through one or more of the Siebel Representatives) or its Board of Directors may, prior to the Siebel Stockholder Approval, (i) engage in negotiations or discussions with any Third Party (or with the representatives of any Third Party) that has made an Acquisition Proposal not solicited in violation of Section 6.03(a) if such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal (such Third Party, a “Qualified Third Party”), (ii) furnish to such Qualified Third Party or its representatives non-public information relating to Siebel or any of its Subsidiaries pursuant to an executed confidentiality agreement containing customary nondisclosure provisions (which need not include “standstill ” or similar provisions) (and a copy of which shall be promptly (in all events within 24 hours) provided for informational purposes only to Oracle), (iii) grant a waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel or any of its Subsidiaries, (iv) amend or terminate the Siebel Rights Plan or redeem the Siebel Rights, (v) withdraw the Siebel Board Recommendation or modify the Siebel Board Recommendation in a manner adverse to Oracle (any such action, a “Change in Recommendation”), (vi) terminate this Agreement pursuant to and subject to the terms of Section 9.01(d) and/or (vii) take any action that any court of competent jurisdiction orders Siebel, one or more of the Siebel Representatives or the Board of Directors of Siebel to take, but in each case referred to in the foregoing clauses (iii), (iv) and (v) only if the Board of Directors of Siebel determines in good faith by a majority vote, after consultation with its outside legal counsel, that failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Law. Nothing contained herein shall prevent the Board of Directors of Siebel from complying with Rule 14e-2(a), Rule 14d-9 and Item 1012(a) of Regulation M-A under the 1934 Act with regard to an Acquisition Proposal; provided that the Board of Directors of Siebel shall not recommend that Siebel’s stockholders tender shares of capital stock in connection with any tender or exchange offer unless such Board of Directors shall have determined in good faith by a majority vote, after consultation with its outside legal counsel, that failure to make such recommendation would be reasonably likely to result in a breach of its fiduciary duties under applicable Law.
(c) The Board of Directors of Siebel shall not take any of the actions referred to in clauses (i) through (vii) of the preceding subsection unless Siebel shall have delivered to Oracle a prior written notice advising Oracle that it intends to take such action. In addition, Siebel shall notify Oracle promptly (but in no event later than 24 hours) after an officer or director first obtains Knowledge of the receipt by Siebel (or any of the Siebel Representatives) of any Acquisition Proposal, any inquiry that would reasonably be expected to lead to an Acquisition Proposal, or any request for confidential information relating to Siebel or any of its Subsidiaries or for access to the business, properties, assets, books or records of Siebel or any of its Subsidiaries by any Third Party that has informed Siebel that it is considering making, or has made, an Acquisition Proposal. Siebel shall provide such notice orally and in writing and shall identify the Third Party making, and the material terms and conditions of, any such Acquisition Proposal, inquiry or request. Siebel shall promptly provide Oracle with any non-public information concerning Siebel’s business, present or future performance, financial condition or results of operations, provided to any Qualified Third Party after the date of this Agreement in connection with an Acquisition Proposal made by such Third Party that was not previously provided to Oracle. Siebel shall keep Oracle promptly and reasonably informed, on a reasonably current basis, of the status and material details of any such Acquisition Proposal, inquiry or request. Siebel Company shall, and shall cause its Subsidiaries and the Siebel their respective Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to the date of this Agreement with respect to any Acquisition Proposal and shall instruct use its commercially reasonable efforts to cause any such Third Party (or its agents or advisors) in possession of confidential information about Siebel the Company that was furnished by or on behalf of Siebel with respect to any Acquisition Proposal within the six months prior to the date hereof Company to return or destroy all such information. During the term of this Agreement, the Company shall not take any actions to make any state takeover statute (including any Kentucky state takeover statute) or similar statute inapplicable to any Acquisition Proposal.
(b) Notwithstanding the foregoing, at any time prior to the adoption of this Agreement by Company’s shareholders (and in no event after the adoption of this Agreement by Company’s shareholders), the Board of Directors of the Company, directly or indirectly through advisors, agents or other intermediaries, may, subject to compliance with Section 6.03(c), (i) engage in negotiations or discussions with any Third Party that, subject to the Company’s compliance with Section 6.03(a), has made after the date of this Agreement a Superior Proposal or an unsolicited bona fide Acquisition Proposal that the Board of Directors of the Company reasonably believes (after considering the advice of a financial advisor of nationally recognized reputation) will lead to a Superior Proposal, (ii) thereafter furnish to such Third Party information relating to the Company or any of its Subsidiaries pursuant to a confidentiality agreement with terms no less favorable to the Company than those contained in the Confidentiality Agreement (a copy of which shall be provided, promptly after its execution, for informational purposes only to Parent); provided that (A) such confidentiality agreement with such Third Party shall not be required to contain standstill provisions (in which case the Confidentiality Agreement shall be deemed amended to delete the standstill provisions contained therein) and (B) all such information (to the extent that such information has not been previously provided or made available to Parent) is provided or made available to Parent, as the case may be, prior to or substantially concurrently with the time it is provided or made available to such Third Party) and (iii) following receipt of a Superior Proposal after the date of this Agreement, make an Adverse Recommendation Change, but in each case referred to in the foregoing clauses (i) through (iii) only if the Board of Directors of the Company determines in good faith by a majority vote, after considering advice from outside legal counsel to the Company, that the failure to take such action would be inconsistent with its fiduciary duties under Applicable Law. Nothing contained herein shall prevent the Board of Directors of the Company from complying with requirements Rule 14e-2(a) or Rule 14d-9 under the 1934 Act with regard to an Acquisition Proposal, so long as any action taken or statement made to so comply is consistent with this Section 6.03; provided, that such requirement will in no way eliminate or modify the effect that any action pursuant to such requirement would otherwise have under this Agreement.
(c) The Board of Directors of the Company shall not take any of the actions referred to in clauses (i) through (iii) of Section 6.03(b) unless the Company shall have delivered to Parent a prior written notice advising Parent that it intends to take such action. In addition, the Company shall notify Parent promptly (but in no event later than 24 hours) after receipt by the Company (or any of its Representatives) of any Acquisition Proposal, any inquiry that would be reasonably expected to lead to an Acquisition Proposal or of any request for information relating to the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of the Company or any of its Subsidiaries by any Third Party that a Person acting in good faith would reasonably believe is seeking to make, or has made, an Acquisition Proposal, which notice shall be provided orally and in writing and shall identify the Third Party making, and the material terms and conditions of, any such Acquisition Proposal, indication or request (including any material changes thereto). The Company or its Representatives shall keep Parent or its Representatives reasonably informed, on a current basis, of any material changes to any such Acquisition Proposal, indication or request.
Appears in 2 contracts
Samples: Merger Agreement (Ipsco Inc), Merger Agreement (Ns Group Inc)
No Solicitation; Other Offers. (a) Neither Siebel the Company nor any of its Subsidiaries shall, nor shall Siebel the Company or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants or other agents, representatives or advisors (the “Siebel Representatives”) Representatives to, directly or indirectly, (i) solicit, initiate, initiate or knowingly take any action to facilitate or knowingly encourage the submission of any Acquisition Proposal or any inquiries, indication of interest or the making of any proposal that would reasonably be expected to lead to any Acquisition Proposal, or, subject to Section 7.03(b), (iii) enter into conduct or participate engage in any discussions or negotiations with, furnish disclose any non-public information relating to Siebel the Company or any of its Subsidiaries to or to, afford access to the business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries to to, or otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by, any Third Party that has made, or has informed Siebel that it is seeking to make, an or has made, any Acquisition Proposal, (iiiii) (x) amend or grant any Third Party waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel or any of its Subsidiaries or amend or terminate the Siebel Rights Plan or redeem the Siebel Rights or (iv) enter into any agreement (except for confidentiality agreements, referred to in Section 6.04(b)) with any Third Party with respect to an Acquisition Proposal made by such Third Party, or any other agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Mergers or any of the other transactions contemplated by this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, Siebel (through one or more of the Siebel Representatives) or its Board of Directors may, prior to the Siebel Stockholder Approval, (i) engage in negotiations or discussions with any Third Party (or with the representatives of any Third Party) that has made an Acquisition Proposal not solicited in violation of Section 6.03(a) if such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal (such Third Party, a “Qualified Third Party”), (ii) furnish to such Qualified Third Party or its representatives non-public information relating to Siebel or any of its Subsidiaries pursuant to an executed confidentiality agreement containing customary nondisclosure provisions (which need not include “standstill ” or similar provisions) (and a copy of which shall be promptly (in all events within 24 hours) provided for informational purposes only to Oracle), (iii) grant a waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel Company or any of its Subsidiaries, (ivy) approve any transaction under, or any Third Party becoming an “interested stockholder” under Section 203 of Delaware Law, or (z) amend or terminate the Siebel Rights Plan grant any waiver or release or approve any transaction or redeem any Company Rights under the Siebel RightsCompany Rights Agreement, except in connection with the transactions contemplated by this Agreement, or (viii) enter into any Contract relating to any Acquisition Proposal. Subject to Section 7.03(b), neither the Company Board nor any committee thereof shall (A) fail to make, withdraw the Siebel Board Recommendation or modify the Siebel Board Recommendation in a manner adverse to Oracle (any such action, a “Change in Recommendation”)Parent or Merger Subsidiary the Board Recommendation or the Company Compensation Approvals, (viB) terminate this Agreement pursuant to and subject to the terms of Section 9.01(d) and/or (vii) take any action that any court of competent jurisdiction orders Siebel, one or more of the Siebel Representatives or the Board of Directors of Siebel to take, but in each case referred to in the foregoing clauses (iii), (iv) and (v) only if the Board of Directors of Siebel determines in good faith by a majority vote, after consultation with its outside legal counsel, that failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Law. Nothing contained herein shall prevent the Board of Directors of Siebel from complying with Rule 14e-2(a), Rule 14d-9 and Item 1012(a) of Regulation M-A under the 1934 Act with regard to recommend an Acquisition Proposal; provided that the Board , (C) fail to recommend against acceptance of Directors of Siebel shall not recommend that Siebel’s stockholders any Third Party tender shares of capital stock in connection with any tender offer or exchange offer unless for the Company Shares within ten Business Days after the commencement of such offer, (D) fail to confirm the Board Recommendation within ten Business Days of Directors a request from Parent to do so, provided that Parent shall have determined in good faith by a majority vote, after consultation with its outside legal counsel, that failure only be entitled to make such recommendation would a request if and to the extent an Acquisition Proposal shall be reasonably likely pending and not publicly withdrawn at the time of such request, or (E) resolve or agree to result in a breach of its fiduciary duties under applicable Law.
(c) The Board of Directors of Siebel shall not take any of the foregoing actions referred to in clauses (i) through (vii) of the preceding subsection unless Siebel shall have delivered to Oracle a prior written notice advising Oracle that it intends to take such action. In addition, Siebel shall notify Oracle promptly (but in no event later than 24 hours) after an officer or director first obtains Knowledge of the receipt by Siebel (or any of the Siebel Representatives) of any Acquisition Proposal, any inquiry that would reasonably be expected to lead to an Acquisition Proposal, or any request for confidential information relating to Siebel or any of its Subsidiaries or for access to the business, properties, assets, books or records of Siebel or any of its Subsidiaries by any Third Party that has informed Siebel that it is considering making, or has madeforegoing, an Acquisition Proposal“Adverse Recommendation Change”). Siebel shall provide such notice orally and in writing and shall identify the Third Party making, and the material terms and conditions of, any such Acquisition Proposal, inquiry or request. Siebel shall promptly provide Oracle with any non-public information concerning Siebel’s business, present or future performance, financial condition or results of operations, provided to any Qualified Third Party after the date of this Agreement in connection with an Acquisition Proposal made by such Third Party that was not previously provided to Oracle. Siebel shall keep Oracle promptly and reasonably informed, on a reasonably current basis, of the status and material details of any such Acquisition Proposal, inquiry or request. Siebel The Company shall, and shall cause its Subsidiaries and the Siebel its and their respective Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to the date hereof with respect to any Acquisition Proposal. At the request of Parent, the Company shall promptly request that each Third Party, if any, that has executed a confidentiality agreement within the 12-month period prior to the date hereof in connection with its consideration of any Acquisition Proposal and shall instruct any such Third Party (return or its agents or advisors) in possession of destroy all confidential information about Siebel that was heretofore furnished to such Person by or on behalf of Siebel the Company or any of its Subsidiaries (and all analyses and other materials prepared by or on behalf of such Person that contains, reflects or analyzes that information), and the Company shall provide to Parent all certifications of such return or destruction from such other Persons as promptly as practicable after receipt thereof.
(b) Notwithstanding the foregoing, prior to the Acceptance Time, the Company Board, acting directly or indirectly through any Representative, may (i) engage in negotiations or discussions with any Third Party that has made (and not withdrawn) a bona fide unsolicited Acquisition Proposal in writing that the Company Board determines in good faith, after consulting with the Company’s outside legal counsel and a financial advisor of nationally recognized reputation, constitutes, or is likely to lead to, a Superior Proposal, (ii) thereafter furnish to such Third Party non-public information relating to the Company or any of its Subsidiaries pursuant to an executed confidentiality agreement with terms no less favorable to the Company than those contained in the NDA and containing additional provisions that expressly permit the Company to comply with the terms of this Section 7.03 (a copy of which confidentiality agreement shall be promptly (in all events within 24 hours) provided for informational purposes to Parent), (iii) subject to compliance with Section 7.03(c) and 7.03(d), make an Adverse Recommendation Change, (iv) amend or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries, but only to the extent required to enable a Third Party to submit and allow the Company to consider an Acquisition Proposal within and the six months Company to accept a Superior Proposal, and/or (v) take any non-appealable, final action that any court of competent jurisdiction orders the Company to take, but in each case referred to in the foregoing clauses (i) through (v), only if the Company Board determines in good faith by a majority vote, after consulting with the Company’s outside legal counsel, that the failure to take such action would be inconsistent with its fiduciary duties under Applicable Law. For purposes of this Section 7.03(b), each reference to 15% or 85%, respectively, in the definition of “Acquisition Proposal” shall be deemed to be 50%. Nothing contained herein shall prevent the Company Board from complying with Rule 14d-9 and Rule 14e-2(a) under the 1934 Act with regard to an Acquisition Proposal or from making any disclosure to the Company’s stockholders if, in the good faith judgment of the Company Board, after consultation with outside counsel, disclosure is required under Applicable Law.
(c) Neither the Company nor the Company Board shall take any of the actions referred to in clauses (i) through (v) of Section 7.03(b), directly or indirectly, unless the Company shall have delivered to Parent at least 24 hours prior written notice advising Parent that it intends to take such action. The Company shall notify Parent promptly (but in no event later than 24 hours) after it obtains knowledge of the receipt by the Company (or any of its Subsidiaries Representatives) of any Acquisition Proposal, or any request for non-public information relating to the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of the Company or any of its Subsidiaries by any Third Party that is seeking to make or has made after the date hereof an Acquisition Proposal. The Company shall provide such notice orally and in writing and shall identify the Third Party making, and the terms and conditions of, any such Acquisition Proposal or request. The Company shall keep Parent informed, on a prompt basis (but in any event within 24 hours), of the status and material terms of any such Acquisition Proposal, including any material amendments or proposed amendments as to return price and other material terms thereof. The Company shall provide Parent with at least 48 hours prior notice of any meeting of the Company Board (or destroy such lesser notice as is provided to the members of the Company Board) at which the Company Board is reasonably expected to consider any Acquisition Proposal. The Company shall promptly provide Parent with any non-public information concerning the Company’s business, present or future performance, financial condition or results of operations, provided to any Third Party that was not previously provided to Parent.
(d) In addition to the foregoing, the Company Board shall not make an Adverse Recommendation Change, unless (i) the Company promptly notifies Parent, in writing at least two full Business Days prior to taking that action, of its intention to terminate this Agreement and to enter into a binding definitive agreement in respect of a Superior Proposal, attaching the a copy of such proposed definitive agreement which shall be in final form in all material respects and include all schedules, annexes and exhibits thereto, and (ii) Parent does not make, within two full Business Days after its receipt of such informationwritten notification, an offer that is determined by the Company Board in good faith after considering the advice of its outside counsel and of a financial advisor of nationally recognized reputation to be at least as favorable to the stockholders of the Company as such Superior Proposal, it being understood that the Company shall not enter into any such binding agreement during such two Business Day period.
Appears in 2 contracts
Samples: Merger Agreement (Packeteer Inc), Merger Agreement (Blue Coat Systems Inc)
No Solicitation; Other Offers. (a) Neither Siebel nor any of its Subsidiaries shallFrom the date hereof until the Broadcast Merger Effective Time or, if earlier, until this Agreement is terminated in accordance with Article 13, except as expressly permitted by this Section 9.02, Scripps shall not, nor shall Siebel or any of its Subsidiaries it authorize or permit any of its Subsidiaries or any of its or their officers, directors, employees, investment bankers, attorneys, accountants or other agents, representatives or advisors (the “Siebel Representatives”) respective Representatives to, directly or indirectly, (i) solicit, initiate, knowingly initiate or take any action to facilitate or knowingly encourage the submission of any inquiries regarding, or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Scripps Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with or otherwise cooperate with, or knowingly assist, participate in, facilitate or encourage any effort by, or furnish any non-public information relating to Siebel Scripps or any of its Subsidiaries to Subsidiaries, or afford access to the business, properties, assets, books or records of Siebel Scripps or any of its Subsidiaries to to, any Third Party that has made, or has informed Siebel that it is seeking to make, an or has made, a Scripps Acquisition Proposal, Proposal or (iii) grant any Third Party waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel or any of its Subsidiaries or amend or terminate the Siebel Rights Plan or redeem the Siebel Rights or (iv) enter into any agreement, agreement in principle, letter of intent, term sheet, memorandum of understanding or other similar instrument relating to a Scripps Acquisition Proposal (except for other than a confidentiality agreements, agreement referred to in Section 6.04(b9.02(b)) with any Third Party with respect to an (each, a “Scripps Acquisition Proposal made by such Third Party, or any other agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Mergers or any of the other transactions contemplated by this Agreement”).
(b) Notwithstanding anything in this Agreement to the contrary contained in this Agreementcontrary, Siebel (through one or more of from the Siebel Representatives) or date hereof and prior to obtaining the Scripps Shareholder Approval, Scripps and its Board of Directors may, prior to (the Siebel Stockholder Approval, “Scripps Board”) and their Representatives shall be permitted:
(i) to engage in discussions and negotiations or discussions with with, and furnish information to, any Third Party (or with the representatives of any Third Party) that has made an in response to a Scripps Acquisition Proposal not solicited in violation of Section 6.03(aby any such Third Party (a “Scripps Bidder”) if if, and only to the extent that, (A) such Scripps Acquisition Proposal constitutes or could reasonably be expected to lead to did not result from a Superior Proposal (such Third Party, a “Qualified Third Party”), (ii) furnish to such Qualified Third Party or its representatives non-public information relating to Siebel or any breach of its Subsidiaries pursuant to an executed confidentiality agreement containing customary nondisclosure the provisions (which need not include “standstill ” or similar provisions) (and a copy of which shall be promptly (in all events within 24 hours) provided for informational purposes only to Oracle), (iii) grant a waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel this Section 9.02 by Scripps or any of its Subsidiaries; (B) the Scripps Board concludes in good faith, (iv) amend based on the information then available and after consultation with a nationally recognized financial advisor and outside legal counsel, that such Scripps Acquisition Proposal constitutes or terminate the Siebel Rights Plan or redeem the Siebel Rights, (v) withdraw the Siebel Board Recommendation or modify the Siebel Board Recommendation is reasonably likely to result in a manner adverse to Oracle Scripps Superior Proposal; (any such action, a “Change in Recommendation”), (viC) terminate this Agreement pursuant to and subject to the terms of Section 9.01(d) and/or (vii) take any action that any court of competent jurisdiction orders Siebel, one or more of the Siebel Representatives or the Scripps Board of Directors of Siebel to take, but in each case referred to in the foregoing clauses (iii), (iv) and (v) only if the Board of Directors of Siebel determines concludes in good faith by a majority votefaith, based on the information then available and after consultation with its outside legal counsel, that the failure to take such action do so would be reasonably likely to result in a breach of be inconsistent with its fiduciary duties under applicable Applicable Law. Nothing contained herein shall prevent ; (D) prior to providing any information or data to any such Scripps Bidder or entering into any discussions or negotiations with any such Scripps Bidder, Scripps promptly notifies Journal of (1) its intent to so furnish information or enter into discussions and negotiations with such Scripps Bidder, (2) the Board name of Directors such Scripps Bidder and (3) a summary of Siebel from complying with Rule 14e-2(a), Rule 14d-9 the material terms and Item 1012(a) conditions of Regulation M-A under the 1934 Act with regard to an any such Scripps Acquisition Proposal; , (E) prior to providing any information or data to any such Scripps Bidder, Scripps receives from such Scripps Bidder an executed confidentiality agreement, the terms of which are no less favorable to Scripps, in any material respect, than those contained in the Confidentiality Agreement, and (F) Scripps promptly provides or makes available to Journal any non-public information concerning Scripps or its Subsidiaries provided or made available to such Scripps Bidder that was not previously provided or made available to Journal;
(ii) without limiting its rights under Article 13, to withdraw, modify, qualify in a manner adverse to Journal, condition or refuse to make the Scripps Board Recommendation (it being understood that the Scripps Board may refrain from taking a position with respect to a Scripps Acquisition Proposal until the close of Directors business of Siebel shall the tenth (10th) Business Day following a written request by Journal to the Scripps Board to affirm the Scripps Board Recommendation after the first public announcement of such Scripps Acquisition Proposal without such action being considered an adverse modification) (the "Change in the Scripps Board Recommendation") or approve, endorse, recommend, execute or enter into, any Scripps Acquisition Agreement solely in response to a Scripps Superior Proposal only if (A) such Scripps Superior Proposal did not recommend that Siebel’s stockholders tender shares result from a breach of capital stock in connection with the provisions of this Section 9.02 by Scripps or any tender or exchange offer unless such of its Subsidiaries, (B) the Scripps Board of Directors shall have determined concludes in good faith by a majority votefaith, after consultation with its outside legal counsel, that failure to make such recommendation do so would be reasonably likely violate its fiduciary obligations under Applicable Law, (C) without limiting Scripps’s obligation under Section 9.02(b)(i)(C), the Scripps Board provides written notice to result Journal (a “Notice of Scripps Superior Proposal”) advising Journal that the Scripps Board has received a Scripps Superior Proposal, specifying the material terms and conditions of such Scripps Superior Proposal and identifying the Person making such Scripps Superior Proposal (and attaching any agreement and all material related documentation providing for such Scripps Superior Proposal) and indicating that the Scripps Board intends to make a Change in the Scripps Board Recommendation, (D) Scripps negotiates, and causes its Representatives to negotiate, in good faith with Journal and its Representatives during the Scripps Response Window, to the extent Journal wishes to negotiate, to enable Journal to make an offer or counteroffer to effect revisions to the terms of this Agreement and the other Transaction Agreements such that it would cause such Scripps Superior Proposal to no longer constitute a Scripps Superior Proposal, (E) if Journal does not, within five (5) Business Days of its receipt of the Notice of Scripps Superior Proposal (the “Scripps Response Window”), make an offer or a counteroffer that the Scripps Board determines, in its good faith judgment (after having received the advice of a financial advisor of nationally recognized reputation) and outside legal counsel to be at least as favorable to the Scripps Shareholders as such Scripps Superior Proposal; it being understood and agreed that, with respect to clauses (C), (D) and (E) of this Section 9.02(b)(ii), any material amendments to such Scripps Superior Proposal, including the financial terms of such Scripps Superior Proposal, shall each require the delivery of a new Notice of Scripps Superior Proposal and the commencement of a new Scripps Response Window; and
(iii) to comply with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act with regard to a Scripps Acquisition Proposal or make any disclosure to Scripps’s shareholders required by Applicable Law; provided, that the Scripps Board shall not withdraw or modify in a breach manner adverse to Journal the Scripps Board Recommendation except as permitted under subsection (ii) above. For the avoidance of its fiduciary duties under applicable Law.
(c) The Board of Directors of Siebel shall not take any doubt, a “stop, look and listen” or similar communication of the actions referred to in clauses (i) through (viitype contemplated by Rule 14d-9(f) of the preceding subsection unless Siebel Exchange Act, an express rejection of any Scripps Acquisition Proposal or an express reaffirmation of the Scripps Board Recommendation shall have delivered not be deemed to Oracle be a prior written notice advising Oracle that it intends to take such actionChange in the Scripps Board Recommendation for purposes of this Agreement. In additionaddition to the foregoing, Siebel Scripps shall notify Oracle promptly not submit to the vote of the Scripps Shareholders any Scripps Acquisition Proposal (but including any Scripps Superior Proposal) other than the Transactions prior to the termination of this Agreement in no accordance with its terms. Without limiting Section 9.02(a) and Scripps’s notice obligations in Section 9.02(b), (1) Scripps will promptly, and in any event later than within 24 hours) after an officer or director first obtains Knowledge of , notify Journal in the receipt by Siebel (or any of the Siebel Representatives) of any Acquisition Proposal, any inquiry event that would reasonably be expected to lead to an Acquisition Proposal, or any request for confidential information relating to Siebel Scripps or any of its Subsidiaries or for access to the business, properties, assets, books its or records of Siebel their respective Representatives receives any Scripps Acquisition Proposal or any information related thereto, which notification shall include a summary of its Subsidiaries by any Third Party that has informed Siebel that it is considering making, or has made, an Acquisition Proposal. Siebel shall provide such notice orally and in writing and shall identify the Third Party making, and the material terms and conditions ofof the Scripps Acquisition Proposal and identify the Third Party making the same, and (2) Scripps shall keep Journal reasonably informed of any material developments with respect to any such Scripps Acquisition ProposalProposal and any discussions and negotiations with respect to a Scripps Superior Proposal permitted pursuant to Section 9.02(b)(i). Scripps shall not, inquiry and shall cause its Subsidiaries not to, enter into any confidentiality or request. Siebel shall promptly provide Oracle similar agreement with any non-public Person that prohibits Scripps from providing to Journal any of the information concerning Siebel’s business, present or future performance, financial condition or results of operations, required to be provided to any Qualified Third Party after Journal under this Section 9.02(b) within the date of this Agreement in connection with an Acquisition Proposal made by such Third Party that was not previously provided to Oracle. Siebel shall keep Oracle promptly and reasonably informed, on a reasonably current basis, of the status and material details of any such Acquisition Proposal, inquiry or request. Siebel time periods contemplated hereby.
(c) Scripps shall, and shall cause its Subsidiaries and the Siebel its and their respective Representatives to, immediately cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to the date hereof with respect to any Scripps Acquisition Proposal Proposal, or any inquiry or proposal that may reasonably be expected to lead to a Scripps Acquisition Proposal, and shall instruct use all commercially reasonable efforts to cause any such Third Party (or its agents or advisors) in possession of confidential information about Siebel regarding Scripps or its Subsidiaries that was furnished by or on behalf of Siebel Scripps in connection with respect such activities, discussions or negotiations to any Acquisition Proposal within the six months prior to the date hereof to promptly return or destroy all such information. Without limiting this Section 9.02, it is agreed that any violation of the restrictions set forth in this Section 9.02 by any Representative of Scripps or any of its Subsidiaries shall constitute a breach of this Section 9.02 by Scripps.
Appears in 2 contracts
Samples: Master Transaction Agreement (Scripps E W Co /De), Master Transaction Agreement (Journal Communications Inc)
No Solicitation; Other Offers. (a) Neither Siebel nor any of Subject to Section 7.03(b), the Company shall not, and shall cause its Subsidiaries shall, nor shall Siebel or any of and its Subsidiaries authorize or permit any of its or and their officers, officers and directors, and shall direct and use reasonable best efforts to cause its employees, investment bankers, attorneys, accountants or accountants, consultants and other agents, advisors or representatives or advisors (the collectively, “Siebel Representatives”) not to, directly or indirectly, (i) solicit, initiate, knowingly or take any action that it knows or reasonably should know would facilitate or knowingly encourage the submission of of, any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any non-public information relating to Siebel the Company or any of its Subsidiaries to or afford access to the business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries to to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that has made, or has informed Siebel that it is seeking to make, or has made, an Acquisition Proposal, (iii) fail to make, withdraw or modify in a manner adverse to Parent or publicly propose to withdraw or modify in a manner adverse to Parent the Company Board Recommendation (it being understood that taking a neutral position or no position with respect to any Acquisition Proposal, other than a statement contemplated by Rule 14d-9(f) under the 1934 Act during the initial period of ten Business Days following the commencement of the Acquisition Proposal, shall be considered an adverse modification, recommend, adopt or approve or publicly propose to recommend, adopt or approve an Acquisition Proposal), or take any action or make any statement inconsistent with the Company Board Recommendation (any of the foregoing in this clause (iii), an “Adverse Recommendation Change”), (iv) grant any Third Party waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel the Company or any of its Subsidiaries or amend or terminate the Siebel Rights Plan or redeem the Siebel Rights or (ivv) enter into any agreement (except for confidentiality agreementsin principle, referred to in Section 6.04(b)) with any Third Party with respect to an Acquisition Proposal made by such Third Partyletter of intent, or any other term sheet, merger agreement, arrangement acquisition agreement, option agreement, joint venture agreement, partnership agreement or understanding requiring it to abandon, terminate other similar instrument constituting or fail to consummate the Mergers or any of the other transactions contemplated by this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, Siebel (through one or more of the Siebel Representatives) or its Board of Directors may, prior to the Siebel Stockholder Approval, (i) engage in negotiations or discussions with any Third Party (or with the representatives of any Third Party) that has made an Acquisition Proposal not solicited in violation of Section 6.03(a) if such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal (such Third Party, a “Qualified Third Party”), (ii) furnish to such Qualified Third Party or its representatives non-public information relating to Siebel or any of its Subsidiaries pursuant to an executed confidentiality agreement containing customary nondisclosure provisions (which need not include “standstill ” or similar provisions) (and a copy of which shall be promptly (in all events within 24 hours) provided for informational purposes only to Oracle), (iii) grant a waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel or any of its Subsidiaries, (iv) amend or terminate the Siebel Rights Plan or redeem the Siebel Rights, (v) withdraw the Siebel Board Recommendation or modify the Siebel Board Recommendation in a manner adverse to Oracle (any such action, a “Change in Recommendation”), (vi) terminate this Agreement pursuant to and subject to the terms of Section 9.01(d) and/or (vii) take any action that any court of competent jurisdiction orders Siebel, one or more of the Siebel Representatives or the Board of Directors of Siebel to take, but in each case referred to in the foregoing clauses (iii), (iv) and (v) only if the Board of Directors of Siebel determines in good faith by a majority vote, after consultation with its outside legal counsel, that failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Law. Nothing contained herein shall prevent the Board of Directors of Siebel from complying with Rule 14e-2(a), Rule 14d-9 and Item 1012(a) of Regulation M-A under the 1934 Act with regard to an Acquisition Proposal; provided that the Board of Directors of Siebel shall not recommend that Siebel’s stockholders tender shares of capital stock in connection with any tender or exchange offer unless such Board of Directors shall have determined in good faith by a majority vote, after consultation with its outside legal counsel, that failure to make such recommendation would be reasonably likely to result in a breach of its fiduciary duties under applicable Law.
(c) . The Board of Directors of Siebel shall not take any of the actions referred to in clauses (i) through (vii) of the preceding subsection unless Siebel shall have delivered to Oracle a prior written notice advising Oracle that it intends to take such action. In addition, Siebel shall notify Oracle promptly (but in no event later than 24 hours) after an officer or director first obtains Knowledge of the receipt by Siebel (or any of the Siebel Representatives) of any Acquisition Proposal, any inquiry that would reasonably be expected to lead to an Acquisition Proposal, or any request for confidential information relating to Siebel or any of its Subsidiaries or for access to the business, properties, assets, books or records of Siebel or any of its Subsidiaries by any Third Party that has informed Siebel that it is considering making, or has made, an Acquisition Proposal. Siebel shall provide such notice orally and in writing and shall identify the Third Party making, and the material terms and conditions of, any such Acquisition Proposal, inquiry or request. Siebel shall promptly provide Oracle with any non-public information concerning Siebel’s business, present or future performance, financial condition or results of operations, provided to any Qualified Third Party after the date of this Agreement in connection with an Acquisition Proposal made by such Third Party that was not previously provided to Oracle. Siebel shall keep Oracle promptly and reasonably informed, on a reasonably current basis, of the status and material details of any such Acquisition Proposal, inquiry or request. Siebel Company shall, and shall cause its Subsidiaries and the Siebel their respective Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to the date of this Agreement with respect to any Acquisition Proposal and shall instruct use its reasonable best efforts to cause any such Third Party (or its agents or advisors) in possession of confidential information about Siebel the Company that was furnished by or on behalf of Siebel with respect to any Acquisition Proposal within the six months prior to the date hereof Company to return or destroy all such information. During the term of this Agreement, the Company shall not take any actions to make any state takeover statute (including any Delaware state takeover statute) or similar statute inapplicable to any Acquisition Proposal.
(b) Notwithstanding the foregoing, at any time prior to the adoption of this Agreement by the Company’s stockholders (and in no event after the adoption of this Agreement by the Company’s stockholders), the Board of Directors of the Company, directly or indirectly through advisors, agents or other intermediaries, may, subject to compliance with Section 7.03(c), (i) engage in negotiations or discussions with any Third Party that, subject to the Company’s compliance with Section 7.03(a) has made after the date of this Agreement a Superior Proposal or an unsolicited bona fide Acquisition Proposal that the Board of Directors of the Company reasonably believes (after considering the advice of a financial advisor of nationally recognized reputation and outside legal counsel) is reasonably likely to lead to a Superior Proposal, (ii) thereafter furnish to such Third Party nonpublic information relating to the Company or any of its Subsidiaries pursuant to a confidentiality agreement with terms no less favorable to the Company than those contained in the Confidentiality Agreement (a copy of which shall be provided, promptly after its execution, for informational purposes only to Parent), it being understood that such confidentiality agreement need not contain a standstill provision; provided that all such information (to the extent that such information has not been previously provided or made available to Parent) is provided or made available to Parent, as the case may be, prior to or substantially concurrently with the time it is provided or made available to such Third Party) and (iii) following receipt of a Superior Proposal after the date of this Agreement or a development or a change in circumstances occurs or arises after the date of this Agreement that was not known by the Company’s board of directors as of the date of this Agreement (such material development or change in circumstance, an “Intervening Event”), make an Adverse Recommendation Change, but in each case referred to in the foregoing clauses (i) through (iii) only if the Board of Directors of the Company determines in good faith by a majority vote, after considering advice from outside legal counsel to the Company, that in light of such Superior Proposal or Intervening Event, such action is required in order for the Board to comply with its fiduciary duties under Applicable Law. Nothing contained herein shall prevent the Board of Directors of the Company from complying with requirements of Rule 14e-2(a) and Rule 14d-9 under the 1934 Act with regard to an Acquisition Proposal, so long as any action taken or statement made to so comply is consistent with this Section 7.03; provided, that such requirement will in no way eliminate or modify the effect that any action pursuant to such requirement would otherwise have under this Agreement.
(c) The Board of Directors of the Company shall not take any of the actions referred to in clauses (i) through (iii) of Section 7.03(b) unless the Company shall have delivered to Parent a prior written notice advising Parent that it intends to take such action. The Company shall notify Parent promptly (but in no event later than 24 hours) after receipt by the Company (or any of its Representatives) of any Acquisition Proposal, any indication that a Third Party is considering making an Acquisition Proposal or of any request for information relating to the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of the Company or any of its Subsidiaries by any Third Party that may be considering making, or has made, an Acquisition Proposal, which notice shall be provided orally and in writing and shall identify the Third Party making, and the material terms and conditions of, any such Acquisition Proposal, indication or request (including any changes thereto). The Company shall keep Parent fully informed, on a current basis, of the status and details of any such Acquisition Proposal, indication or request and shall promptly (but in no event later than 24 hours after receipt) provide to Parent copies of all significant correspondence and written materials sent or provided to the Company or any of its Subsidiaries that describes any terms or conditions of any Acquisition Proposal.
Appears in 2 contracts
Samples: Merger Agreement (Stifel Financial Corp), Merger Agreement (Thomas Weisel Partners Group, Inc.)
No Solicitation; Other Offers. (a) Neither Siebel From the date hereof until the earlier of the Effective Time and the termination of this Agreement pursuant to its terms, subject to Section 6.03(b), neither the Company nor any of its Subsidiaries shall, nor shall Siebel the Company or any of its Subsidiaries authorize or knowingly permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants or other agents, representatives or advisors (the “Siebel Representatives”) Representatives to, directly or indirectly, (i) solicit, initiate, knowingly facilitate initiate or knowingly encourage encourage, directly or indirectly, the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations withregarding, or furnish any non-public information relating to Siebel or any of its Subsidiaries to or afford access to the business, properties, assets, books or records of Siebel or any of its Subsidiaries to any Third Party that has madeany nonpublic information or data with respect to, or has informed Siebel that it is seeking take any other action to makeknowingly facilitate the making of, an any Acquisition Proposal, (iii) grant fail to make, or withdraw or modify in a manner adverse to Parent, the Board Recommendation (or recommend an Acquisition Proposal) (any Third Party waiver or release under any standstill or similar agreement with respect to any class of equity securities the foregoing in this clause (iii), an “Adverse Recommendation Change”) (it being understood, however, that for all purposes of Siebel this Agreement, the fact that the Company or any of its Subsidiaries or amend Representatives has taken any of the actions described in clause (ii) above as permitted by this Agreement shall not be deemed in and of itself a withdrawal or terminate modification of the Siebel Rights Plan Board Recommendation or redeem the Siebel Rights a recommendation of any Acquisition Proposal), or (iv) enter into any agreement (except for confidentiality agreements, referred to in Section 6.04(b)) with any Third Party with respect to an Acquisition Proposal made by such Third Party, or any other agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Mergers or any of the other transactions contemplated by this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, Siebel (through one or more of the Siebel Representatives) or its Board of Directors may, prior to the Siebel Stockholder Approval, (i) engage in negotiations or discussions with any Third Party (or with the representatives of any Third Party) that has made an Acquisition Proposal not solicited in violation of Section 6.03(a) if such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal (such Third Party, a “Qualified Third Party”), (ii) furnish to such Qualified Third Party or its representatives non-public information relating to Siebel or any of its Subsidiaries pursuant to an executed confidentiality agreement containing customary nondisclosure provisions (which need not include “standstill ” or similar provisions) (and a copy of which shall be promptly (in all events within 24 hours) provided for informational purposes only to Oracle), (iii) grant a waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel or any of its SubsidiariesAcquisition Transaction, (iv) amend or terminate the Siebel Rights Plan or redeem the Siebel Rights, (v) withdraw the Siebel Board Recommendation or modify the Siebel Board Recommendation in except for a manner adverse to Oracle (any such action, a “Change in Recommendation”confidentiality agreement as contemplated by Section 6.03(b)(ii), (vi) terminate this Agreement pursuant to and subject to the terms of Section 9.01(d) and/or (vii) take any action that any court of competent jurisdiction orders Siebel, one or more of the Siebel Representatives or the Board of Directors of Siebel to take, but in each case referred to in the foregoing clauses (iii), (iv) and (v) only if the Board of Directors of Siebel determines in good faith by a majority vote, after consultation with its outside legal counsel, that failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Law. Nothing contained herein shall prevent the Board of Directors of Siebel from complying with Rule 14e-2(a), Rule 14d-9 and Item 1012(a) of Regulation M-A under the 1934 Act with regard to an Acquisition Proposal; provided that the Board of Directors of Siebel shall not recommend that Siebel’s stockholders tender shares of capital stock in connection with any tender or exchange offer unless such Board of Directors shall have determined in good faith by a majority vote, after consultation with its outside legal counsel, that failure to make such recommendation would be reasonably likely to result in a breach of its fiduciary duties under applicable Law.
(c) The Board of Directors of Siebel shall not take any of the actions referred to in clauses (i) through (vii) of the preceding subsection unless Siebel shall have delivered to Oracle a prior written notice advising Oracle that it intends to take such action. In addition, Siebel shall notify Oracle promptly (but in no event later than 24 hours) after an officer or director first obtains Knowledge of the receipt by Siebel (or any of the Siebel Representatives) of any Acquisition Proposal, any inquiry that would reasonably be expected to lead to an Acquisition Proposal, or any request for confidential information relating to Siebel or any of its Subsidiaries or for access to the business, properties, assets, books or records of Siebel or any of its Subsidiaries by any Third Party that has informed Siebel that it is considering making, or has made, an Acquisition Proposal. Siebel shall provide such notice orally and in writing and shall identify the Third Party making, and the material terms and conditions of, any such Acquisition Proposal, inquiry or request. Siebel shall promptly provide Oracle with any non-public information concerning Siebel’s business, present or future performance, financial condition or results of operations, provided to any Qualified Third Party after the date of this Agreement in connection with an Acquisition Proposal made by such Third Party that was not previously provided to Oracle. Siebel shall keep Oracle promptly and reasonably informed, on a reasonably current basis, of the status and material details of any such Acquisition Proposal, inquiry or request. Siebel Company shall, and shall cause its Subsidiaries and the Siebel Representatives of the Company and any of its Subsidiaries to, cease immediately and cause to be terminated any and all existing activities, discussions or and negotiations, if any, with any Third Party conducted prior to the date hereof with respect to any Acquisition Proposal Proposal.
(b) Notwithstanding the foregoing, the Board of Directors of the Company, directly or indirectly through any Representatives of the Company, may (i) engage in negotiations or discussions with any Third Party that has made a bona fide Acquisition Proposal, which has not been solicited, initiated or knowingly encouraged by the Company, its Subsidiaries or any of their respective Representatives that the Board of Directors (or any Special Committee of the Board of Directors) has determined, in its good faith judgment after receiving the advice of the Company’s outside legal counsel and shall instruct any a financial advisor of internationally recognized reputation, is or would reasonably be likely to result in a Superior Proposal, (ii) thereafter furnish to such Third Party nonpublic information relating to the Company or any of its Subsidiaries pursuant to a confidentiality agreement with terms and conditions in all material respects no less favorable to the Company than those contained in the Confidentiality Agreement, (iii) following receipt of any such Acquisition Proposal that is so determined to be a Superior Proposal, make an Adverse Recommendation Change and/or (iv) take any non-appealable, final action that any court of competent jurisdiction orders the Company to take, but (x) in each case referred to in the foregoing clauses (i) through (iii), only if the Board of Directors of the Company (or its agents or advisorsa Special Committee) determines in good faith, after considering advice from the Company’s outside legal counsel, that the failure to take such action would reasonably be likely to constitute a breach of the directors’ fiduciary duties under Applicable Law, and (y) in possession the case referred to in clause (iii), only if the Company shall have complied with the requirements set forth in the second proviso to Section 10.01(d)(i). Nothing contained herein shall prevent the Board of confidential information about Siebel that was furnished Directors of the Company (or a Special Committee) from complying with Rule 14d-9 and Rule 14e-2(a) under the 1934 Act with regard to an Acquisition Proposal, so long as any action taken or statement made to so comply is consistent with this Section 6.03.
(c) The Company shall notify Parent promptly (and in any event no later than 24 hours) after receipt by the Company (or on behalf any of Siebel with respect to its Representatives) of any Acquisition Proposal within or any request by any Third Party for any nonpublic information in connection with, or which the six months prior to Company reasonably concludes could lead to, any Acquisition Proposal, indicating, in connection with such notice, the date hereof to return name of such Person and the material terms and conditions of such Acquisition Proposal or destroy request. The Company shall keep Parent informed in all material respects of the status and details (including material amendments or proposed amendments) of any such informationAcquisition Proposal or request.
Appears in 2 contracts
Samples: Merger Agreement (Powerdsine LTD), Merger Agreement (Microsemi Corp)
No Solicitation; Other Offers. (a) Neither Siebel Except as expressly permitted under Section 5.2(b), neither White nor any of its Subsidiaries shall, nor shall Siebel the Representatives of White or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants or other agents, representatives or advisors (the “Siebel Representatives”) toSubsidiaries, directly or indirectly, (i) solicit, initiate, knowingly encourage or otherwise facilitate or knowingly encourage the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any non-public information relating to Siebel White or any of its Subsidiaries to or afford access to the business, properties, assets, books properties or records of Siebel White or any of its Subsidiaries to to, otherwise cooperate in any Third Party that has madeway with, or has informed Siebel assist, participate in, facilitate or encourage any effort by any Person that it is seeking to make, or has made, an Acquisition Proposal, (iii) modify in a manner that makes less restrictive, grant any Third Party waiver or release under under, or fail to enforce, any standstill or similar agreement with respect to any class of equity securities Equity Securities of Siebel or any of its Subsidiaries or amend or terminate the Siebel Rights Plan or redeem the Siebel Rights or (iv) enter into any agreement (except for confidentiality agreements, referred to in Section 6.04(b)) with any Third Party with respect to an Acquisition Proposal made by such Third Party, or any other agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Mergers or any of the other transactions contemplated by this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, Siebel (through one or more of the Siebel Representatives) or its Board of Directors may, prior to the Siebel Stockholder Approval, (i) engage in negotiations or discussions with any Third Party (or with the representatives of any Third Party) that has made an Acquisition Proposal not solicited in violation of Section 6.03(a) if such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal (such Third Party, a “Qualified Third Party”), (ii) furnish to such Qualified Third Party or its representatives non-public information relating to Siebel or any of its Subsidiaries pursuant to an executed confidentiality agreement containing customary nondisclosure provisions (which need not include “standstill ” or similar provisions) (and a copy of which shall be promptly (in all events within 24 hours) provided for informational purposes only to Oracle), (iii) grant a waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel White or any of its Subsidiaries, (iv) amend approve any transaction under, or terminate any Person becoming an “interested stockholder” under, Section 203 of the Siebel Rights Plan DGCL or redeem the Siebel Rights, (v) withdraw enter into, approve or recommend any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar Contract or instrument relating to an Acquisition Proposal. It is agreed that any violation of the Siebel restrictions on White set forth in this Section 5.2(a) by any of its Subsidiaries or any Representative of White or any of its Subsidiaries shall constitute a breach hereof by White.
(b) Notwithstanding Section 5.1(a) and Section 5.2(a), at any time prior to obtaining the Required White Vote:
(i) White, directly or indirectly through advisors, agents or other intermediaries, may (A) engage or participate in negotiations or discussions with any Person and its Representatives that, subject to White’s compliance with Section 5.2(a) has made after the date of this Agreement an unsolicited bona fide written Acquisition Proposal that the White Board Recommendation believes in good faith, after consultation with its outside legal and financial advisors, constitutes or modify is reasonably likely to lead to a Superior Proposal by the Siebel Person making such Acquisition Proposal; and (B) furnish to such Person or its Representatives nonpublic information relating to White or any of its Subsidiaries pursuant to a customary confidentiality agreement (a copy of which shall be provided for informational purposes only to Orange) with such Person with terms no less restrictive than those contained in the confidentiality agreement dated October 7, 2014, between The Coca-Cola Company, Coca-Cola Enterprises, Inc. and Coca-Cola Iberian Partners S.A. relating to the transactions contemplated hereby; provided that all such information (to the extent that such information has not been previously provided or made available to Orange) is provided or made available to Orange, as the case may be, prior to or substantially concurrently with the time it is provided or made available to such Person; and
(ii) subject to compliance with Section 5.2(c) and Section 5.2(d), if applicable, the White Board Recommendation in may make a manner adverse to Oracle (any such action, a “Change in White Recommendation”), (vi) terminate this Agreement pursuant to and subject to the terms of Section 9.01(d) and/or (vii) take any action that any court of competent jurisdiction orders Siebel, one or more of the Siebel Representatives or the Board of Directors of Siebel to take, but ; in each case referred to in the foregoing clauses (iii), (ivi) and (vii) only if the White Board of Directors of Siebel determines in good faith by a majority votefaith, after consultation with its outside legal counsel, that the failure to take such action would be reasonably likely to result in a breach of inconsistent with its fiduciary duties under applicable Applicable Law. Nothing In addition, nothing contained herein shall prevent the White Board of Directors of Siebel from (i) complying with Rule 14e-2(a), Rule 14d-9 and Item 1012(a) of Regulation M-A under the 1934 Exchange Act with regard to an Acquisition ProposalProposal that is in the form of a tender offer or exchange offer, so long as any position taken or statement made to so comply is consistent with this Section 5.2; provided that any such position taken or statement made that addresses or relates to the approval, recommendation or declaration of advisability by the White Board with respect to this Agreement or an Acquisition Proposal shall be deemed to be a Change in White Recommendation unless the White Board expressly reaffirms the White Recommendation in such statement or in connection with such action, or (ii) issuing a “stop, look and listen” disclosure or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act in response to a tender offer or exchange offer; provided that the White Board of Directors of Siebel shall not recommend that Siebel’s stockholders tender shares of capital stock expressly reaffirms the White Recommendation in connection with any tender such disclosure or exchange offer unless such Board of Directors shall have determined in good faith by a majority vote, after consultation with its outside legal counsel, that failure to make such recommendation would be reasonably likely to result in a breach of its fiduciary duties under applicable Lawcommunication.
(c) The Board None of Directors White, the White Board, the Franchise Relationship Committee nor any of Siebel their Representatives shall not take any of the actions referred to in clauses (iSection 5.2(b) through (vii) of the preceding subsection unless Siebel White shall have delivered to Oracle Orange a prior written notice at least 24 hours prior to taking such action advising Oracle Orange that it intends to take such action. In addition, Siebel White shall notify Oracle Orange promptly (but in no event later than 24 hours) after an officer or director first obtains Knowledge of the receipt by Siebel White (or any of the Siebel its Representatives) of any Acquisition Proposal, any inquiry indication by a Person that would reasonably be expected to lead to it is considering making an Acquisition Proposal, Proposal or any request for confidential information relating to Siebel White or any of its Subsidiaries or for access to the business, properties, assets, books assets or records of Siebel White or any of its Subsidiaries by any Third Party Person that has informed Siebel indicated that it is may be considering making, or has made, an Acquisition Proposal. Siebel White shall provide such notice orally and in writing and shall identify the Third Party Person making, and the material terms and conditions of, any such Acquisition Proposal, inquiry indication or request. Siebel shall promptly provide Oracle with any non-public information concerning Siebel’s business, present or future performance, financial condition or results of operations, provided to any Qualified Third Party after the date of this Agreement in connection with an Acquisition Proposal made by such Third Party that was not previously provided to Oracle. Siebel White shall keep Oracle promptly and reasonably Orange informed, on a reasonably current basis, of the status and material details of any such Acquisition Proposal, inquiry indication or request. Siebel shallrequest (whether communicated orally or in writing), and shall cause promptly (but in no event later than twenty-four (24) hours after receipt) provide to Orange copies of all correspondence and written materials sent or provided to White or any of its Subsidiaries and or Representatives that describes any terms or conditions of any Acquisition Proposal. Any material amendment to the Siebel Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party with respect to material financial terms of any Acquisition Proposal and shall instruct any such Third Party (or its agents or advisors) in possession of confidential information about Siebel that was furnished by or on behalf of Siebel with respect will be deemed to any be a new Acquisition Proposal within for purposes of White’s compliance with this Section 5.2(c).
(d) Neither the six months White Board nor the Franchise Relationship Committee shall make a Change in White Recommendation in response to an Acquisition Proposal, unless (i) White has received an Acquisition Proposal after the date hereof and prior to the date hereof White Stockholders Meeting that constitutes a Superior Proposal, (ii) White promptly notifies Orange, in writing at least five (5) Business Days before taking that action, of its intention to return do so, attaching (A) the most current version of the proposed agreement under which the Superior Proposal is proposed to be consummated and (B) the identity of the Person making the Acquisition Proposal, and (iii) Orange does not make, within five (5) Business Days after its receipt of that written notification, an offer that is at least as favorable to the stockholders of White as determined by the White Board as such Superior Proposal (it being understood and agreed that any amendment to the financial terms or destroy all other material terms of such informationSuperior Proposal shall require a new written notification from White and a new five (5) Business Day period under clause (ii) of this Section 5.2(d).
(e) For purposes of this Agreement, “Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement or any proposal or offer made by Orange or any of its Affiliates, any offer, proposal or inquiry relating to any transaction to effect, or any indication of interest by any third Person in, (i) any amalgamation, merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution, spin-off, split off or similar transaction involving White or any of its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of White, (ii) any purchase or sale of 25% or more of the consolidated assets (including stock of White’s Subsidiaries) of White and its Subsidiaries, taken as a whole or (iii) any purchase or sale of, or tender or exchange offer (including a self-tender offer) for, voting securities of White or any of its Subsidiaries that, if consummated, would result in any Person (or the stockholders of such Person) beneficially owning securities representing 25% or more of White’s total voting power (or of the surviving entity in such transaction) or the voting power of any of its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of White.
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (Coca-Cola Enterprises, Inc.)
No Solicitation; Other Offers. (a) Neither Siebel the Company nor Parent (each an “Applicable Party”) nor any of its Subsidiaries shall, nor shall Siebel such Applicable Party or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants accountants, consultants or other agents, representatives agents or advisors (the “Siebel Representatives”) to, directly or indirectly, (i) solicit, initiate, knowingly initiate or take any action to facilitate or knowingly encourage the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any non-public information relating to Siebel such Applicable Party or any of its Subsidiaries to or afford access to the business, properties, assets, books or records of Siebel such Applicable Party or any of its Subsidiaries to to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by, any Third Party that has made, or has informed Siebel that it is seeking to make, or has made, an Acquisition Proposal, (iii) grant any Third Party waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel such Applicable Party or any of its Subsidiaries or amend or terminate the Siebel Rights Plan or redeem the Siebel Rights or (iv) enter into any agreement (except for confidentiality agreements, referred to in Section 6.04(b)) with any Third Party with respect to an Acquisition Proposal made by such Third Party, or any other agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Mergers or any of the other transactions contemplated by this AgreementProposal.
(b) Notwithstanding anything to the contrary contained in this Agreementforegoing, Siebel (through one or more of the Siebel Representatives) or its Board of Directors mayof an Applicable Party, prior to the Siebel Stockholder Approvaldirectly or indirectly through advisors, agents or other intermediaries, may (i) engage in negotiations or discussions with any Third Party (or that, subject to such Applicable Party’s compliance with the representatives of any Third Party) that has made an Section 8.03(a), submits a bona fide Acquisition Proposal not solicited that the Board of Directors of the Applicable Party determines in violation of Section 6.03(a) if such Acquisition Proposal constitutes or good faith after consultation with its legal counsel and financial advisor reasonably could reasonably be expected to lead to a Superior Proposal (such Third Party, a “Qualified Third PartyPotential Superior Proposal”), (ii) furnish to such Qualified Third Party or its representatives non-public nonpublic information relating to Siebel such Applicable Party or any of its Subsidiaries pursuant to an executed a confidentiality agreement containing customary nondisclosure provisions with terms no less favorable to such Applicable Party than those contained in the Confidentiality Agreement dated as of June 3, 2004 between the Company and Parent (which need not include the “standstill ” or similar provisionsConfidentiality Agreement”) (and a copy of which shall be promptly (in all events within 24 hours) provided for informational purposes only to Oraclethe other party) (provided that such confidentiality agreement with such Third Party shall not be required to include any standstill or similar provision), (iii) grant a waiver or release under any standstill or similar agreement with respect to any class following receipt of equity securities of Siebel or any of its Subsidiariessuch Potential Superior Proposal, (ivA) amend or terminate the Siebel Rights Plan or redeem the Siebel Rights, (v) withdraw the Siebel Board make a Change in Recommendation or modify the Siebel Board Recommendation in a manner adverse to Oracle (any such action, a “Change in Recommendation”), (viB) terminate this Agreement pursuant to and subject to the terms and conditions of Section 9.01(d10.01(c) or Section 10.01(d), as applicable, and/or (viiiv) take any action that any court of competent jurisdiction orders Siebel, one or more of the Siebel Representatives or the Board of Directors of Siebel such Applicable Party to take, but in each case referred to in the foregoing clauses (i) through (iii), (iv) and (v) only if the Board of Directors of Siebel such Applicable Party determines in good faith by a majority vote, after consultation with its outside legal counsel, that failure to take such action would be reasonably likely to result in a breach of inconsistent with its fiduciary duties under applicable Lawlaw. Nothing contained herein shall prevent the Board of Directors of Siebel the Company or Parent from complying with Rule 14e-2(a), ) and Rule 14d-9 and Item 1012(a) of Regulation M-A under the 1934 Act with regard to an Acquisition Proposal; provided that the neither such Board of Directors of Siebel shall not recommend that Siebel’s their stockholders tender shares of capital stock in connection with any tender or exchange offer unless such Board of Directors shall have determined in good faith by accordance with the terms of this Agreement that such tender or exchange offer is a majority vote, after consultation with its outside legal counsel, that failure to make such recommendation would be reasonably likely to result in a breach of its fiduciary duties under applicable LawSuperior Proposal.
(c) The Board of Directors of Siebel an Applicable Party shall not take any of the actions referred to in clauses (i) through (viiiv) of the preceding subsection unless Siebel such Applicable Party shall have delivered to Oracle the other party a prior written notice advising Oracle such other party that it intends to take such action, and such Applicable Party shall continue to advise the other party after taking such action. In addition, Siebel such Applicable Party shall notify Oracle the other party promptly (but in no event later than 24 hours) after an officer or director first obtains Knowledge of the receipt by Siebel the Applicable Party (or any of the Siebel Representativesits advisors) of any Acquisition Proposal, any inquiry indication that would reasonably be expected to lead to a Third Party is considering making an Acquisition Proposal, Proposal or any request for confidential information relating to Siebel the Applicable Party or any of its Subsidiaries or for access to the business, properties, assets, books or records of Siebel the Applicable Party or any of its Subsidiaries by any Third Party that has informed Siebel that it is may be considering making, or has made, an Acquisition Proposal. Siebel Such Applicable Party shall provide such notice orally and in writing and shall identify the Third Party making, and the material terms and conditions of, any such Acquisition Proposal, inquiry indication or request. Siebel The Applicable Party shall promptly provide Oracle the other party with any non-public information concerning Siebelthe Applicable Party’s business, present or future performance, financial condition or results of operations, provided to any Qualified Third Party after the date of this Agreement in connection with an Acquisition Proposal made by such Third Party that was not previously provided to Oraclethe other party. Siebel Such Applicable Party shall keep Oracle promptly and reasonably the other party fully informed, on a reasonably current basis, of the status and material details of any such Acquisition Proposal, inquiry indication or request. Siebel Such Applicable Party shall, and shall cause its Subsidiaries and the Siebel Representatives advisors, employees and other agents of such Applicable Party and any of its Subsidiaries to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to the date hereof with respect to any Acquisition Proposal and shall instruct use its reasonable best efforts to cause any such Third Party (or its agents or advisors) in possession of confidential information about Siebel the Applicable Party that was furnished by or on behalf of Siebel with respect to any Acquisition Proposal within the six months prior to the date hereof Applicable Party to return or destroy all such information.
Appears in 2 contracts
Samples: Merger Agreement (Inveresk Research Group Inc), Merger Agreement (Charles River Laboratories International Inc)
No Solicitation; Other Offers. (a) Neither Siebel nor any of Subject to Section 6.04(b), the Company shall not, and the Company shall cause its Subsidiaries shall, nor shall Siebel or any of and its Subsidiaries authorize or permit any of its or and their officers, directors, employees, investment bankers, attorneys, accountants or accountants, consultants and other agents, representatives or agents and advisors (the collectively, “Siebel Representatives”) not to, directly or indirectly, (i) solicit, initiate, initiate or knowingly take any action to facilitate or knowingly encourage any inquiries regarding, or the making or submission of any proposal or offer that constitutes, or could reasonably be expected to result in, an Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations withregarding any Acquisition Proposal, or furnish or disclose any non-public information relating to Siebel the Company or any of its Subsidiaries or knowingly cooperate in any way with, or knowingly take any action to facilitate or afford access to the businessencourage any effort by, properties, assets, books or records of Siebel or any of its Subsidiaries to any Third Party that has made, or has informed Siebel that it is seeking to make, an or has made, any Acquisition Proposal, (iii) grant fail to make, withdraw or modify in a manner adverse to Parent, the Company Board Recommendation (or publicly recommend any Third Party waiver Acquisition Proposal or release under take any standstill public action or similar agreement make any public statement inconsistent with respect the Company Board Recommendation, including any failure to any class of equity securities of Siebel or include the Company Board Recommendation in the Company Proxy Statement) (any of its Subsidiaries or amend or terminate the Siebel Rights Plan or redeem the Siebel Rights foregoing in this clause (iii), an “Adverse Recommendation Change”) or (iv) enter into any agreement, agreement (except for confidentiality agreementsin principle, referred letter of intent, or other similar instrument relating to in Section 6.04(b)) any Acquisition Proposal. The Company shall, and shall cause each of its Subsidiaries and its and their Representatives to, immediately cease and cause to be terminated any discussions or negotiations with any Third Party (other than Parent and its Representatives) that may be ongoing as of the date hereof with respect to an any actual or potential Acquisition Proposal made by such Third PartyProposal. The Company shall use its commercially reasonable efforts to obtain, or in accordance with the terms of any other applicable confidentiality agreement, arrangement the return or understanding requiring it destruction of any confidential information previously furnished to abandonany such Person by the Company, terminate or fail to consummate the Mergers any of its Subsidiaries or any of the other transactions contemplated by this Agreementits or their Representatives.
(b) Notwithstanding the foregoing, at any time prior to obtaining the Stockholder Approval (x) in response to a written Acquisition Proposal received by the Company after the date hereof that was not solicited in violation of Section 6.04(a) and with respect to which the Board of Directors of the Company determines in good faith (after consultation with its outside legal counsel and financial advisors) (i) that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal and (ii) that its failure to take the applicable action set forth in clauses (A), (B) or (C) below with respect to such Acquisition Proposal would reasonably be expected to be inconsistent with its fiduciary duties to the Company Stockholders under Applicable Law, the Board of Directors of the Company, directly or indirectly through advisors, agents or other intermediaries, may, in response to such Acquisition Proposal, and subject to compliance with Section 6.04(c) and Section 6.04(d), (A) provide access to its properties, Contracts, personnel, books and records and furnish information, data and/or draft agreements with respect to the Company and its Subsidiaries to the Person making such Acquisition Proposal and its Representatives, (B) participate in discussions or negotiations with the Person making such Acquisition Proposal and its Representatives regarding such Acquisition Proposal or (C) in the event that the Board of Directors of the Company determines in good faith (after consultation with its outside legal counsel and financial advisors) that such Acquisition Proposal constitutes a Superior Proposal, make an Adverse Recommendation Change and/or enter into an agreement (or any letter of intent, acquisition agreement or similar agreement with respect to such Superior Proposal) regarding such Superior Proposal or (y) other than in connection with an Acquisition Proposal, if the Board of Directors of the Company determines in good faith (after consultation with its outside legal counsel and financial advisors) that its failure to make an Adverse Recommendation Change would reasonably be expected to be inconsistent with its fiduciary duties to the Company Stockholders under Applicable Law, then the Board of Directors of the Company may make an Adverse Recommendation Change; provided, however, that the Board of Directors of the Company shall not make an Adverse Recommendation Change or enter into an agreement, in each case, with respect to any Superior Proposal unless (1) the Company has given Parent three (3) Business Days prior written notice of its intention to take such action (it being understood and agreed that, in connection with either of the foregoing relating to a Superior Proposal, any change to the consideration offered or other material terms of any Superior Proposal shall require an additional notice to Parent and a new two (2) Business Day notice period), (2) the Board of Directors of the Company shall have considered in good faith (after consultation with its outside legal counsel and financial advisors) any changes or revisions to this Agreement proposed by Parent and shall (x) not have determined that the Superior Proposal would no longer constitute a Superior Proposal if such changes were to be given effect or (y) have determined to make such Adverse Recommendation Change even if such changes were to be given effect and (3)(x) the Company has complied in all material respects with its obligations under this Section 6.04 and (y) in the event that the Board of Directors of the Company has determined to enter into an agreement regarding such Superior Proposal, the Company shall have terminated this Agreement in accordance with the provisions of Section 8.01(d)(ii) hereof and the Company pays Parent the Company Termination Fee in accordance with Section 8.03.
(c) The Company shall promptly (and in any event within two (2) Business Days) advise Parent orally and in writing of (i) the receipt of any indication in writing that a Third Party is considering or may be considering making an Acquisition Proposal or (ii) the receipt of any Acquisition Proposal, in each case, along with the identity of the Person making any such Acquisition Proposal, and, to the extent available, the Company shall provide Parent with a copy or a written summary of the material terms of any such Acquisition Proposal. The Company shall keep Parent reasonably informed of the status on a current basis (including any change to the material terms) of any such Acquisition Proposal, potential Acquisition Proposal or information request. Following a determination by the Board of Directors of the Company that an Acquisition Proposal constitutes a Superior Proposal, the Company shall deliver to Parent a written notice advising it that the Board of Directors of the Company has made such determination together with a copy of any written summary or any draft or definitive agreements related to such Superior Proposal and a summary of the material terms of such Superior Proposal. The Company agrees that it shall not, and shall cause its Subsidiaries not to, enter into any confidentiality agreement or other agreement with any Person subsequent to the date of this Agreement which prohibits the Company from providing such information to Parent.
(d) Prior to furnishing any information to or entering into discussions or negotiations with any Person making an Acquisition Proposal pursuant to Section 6.04(b), the Company shall receive from such Person an executed confidentiality agreement, the terms of which shall be no less favorable to the Company than, in the aggregate, those contained in the Confidentiality Agreement dated as of November 14, 2008 between the Company and Parent (the “Confidentiality Agreement”) (a copy of which shall be provided for informational purposes only to Parent). The Company shall promptly provide to Parent any non-public information concerning the Company or any of its Subsidiaries not previously provided to Parent or the Parent Representatives that is provided to any Person making an Acquisition Proposal. The Company agrees that neither it nor any of its Subsidiaries shall terminate, waive, amend or modify any provision or any existing standstill or confidentiality agreement to which it or any of its Subsidiaries is a party, or enter into any confidentiality agreement pursuant to this Section 6.04(d) that contains a standstill provision that is less favorable to the Company than the standstill provision contained in the Confidentiality Agreement (or that does not include any standstill provision), unless the failure to take such action by the Board of Directors of the Company would be reasonably expected to be inconsistent with its fiduciary duties to Company Stockholders under Applicable Law (in which case, such termination, waiver, amendment or modification, or the terms of any standstill provision contained in any confidentiality agreement entered into pursuant to this Section 6.04(d) that is less favorable to the Company than the standstill provision contained in the Confidentiality Agreement (or the absence of any such standstill provision), shall also apply to the Confidentiality Agreement, to the extent applicable).
(e) Notwithstanding anything to the contrary contained herein, nothing contained in this Agreement, Siebel (through one Agreement shall prohibit or more of restrict the Siebel Representatives) or its Board of Directors may, prior to the Siebel Stockholder Approval, (i) engage in negotiations or discussions with any Third Party (or with the representatives of any Third Party) that has made an Acquisition Proposal not solicited in violation of Section 6.03(a) if such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal (such Third Party, a “Qualified Third Party”), (ii) furnish to such Qualified Third Party or its representatives non-public information relating to Siebel or any of its Subsidiaries pursuant to an executed confidentiality agreement containing customary nondisclosure provisions (which need not include “standstill ” or similar provisions) (and a copy of which shall be promptly (in all events within 24 hours) provided for informational purposes only to Oracle), (iii) grant a waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel or any of its Subsidiaries, (iv) amend or terminate the Siebel Rights Plan or redeem the Siebel Rights, (v) withdraw the Siebel Board Recommendation or modify the Siebel Board Recommendation in a manner adverse to Oracle (any such action, a “Change in Recommendation”), (vi) terminate this Agreement pursuant to and subject to the terms of Section 9.01(d) and/or (vii) take any action that any court of competent jurisdiction orders Siebel, one or more of the Siebel Representatives Company or the Board of Directors of Siebel the Company from (a) taking and/or disclosing to takethe Company Stockholders a position contemplated by Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act or (b) making any disclosure to the stockholders of the Company if, but in each case referred to in the foregoing clauses (iii), (iv) and (v) only if the Board of Directors of Siebel the Company, determines in good faith by a majority vote, (after consultation with its outside legal counsel, counsel and financial advisors) that failure it is required to take such action would be reasonably likely to result in a breach of its fiduciary duties do so under applicable Law. Nothing contained herein shall prevent the Board of Directors of Siebel from complying with Rule 14e-2(a), Applicable Law (including Rule 14d-9 and Item 1012(a) of Regulation M-A Rule 14e-2 promulgated under the 1934 Act with regard to an Acquisition ProposalExchange Act); provided that the Board of Directors of Siebel shall not recommend that Siebel’s stockholders tender shares of capital stock in connection with any tender or exchange offer unless such Board of Directors shall have determined in good faith by a majority voteprovided, after consultation with its outside legal counselhowever, that failure to make such recommendation would be reasonably likely to result in a breach of its fiduciary duties under applicable Law.
(c) The Board of Directors of Siebel shall not take any of the actions referred to in clauses (i) through (vii) of the preceding subsection unless Siebel shall have delivered to Oracle a prior written notice advising Oracle that it intends to take such action. In addition, Siebel shall notify Oracle promptly (but in no event later than 24 hoursshall this Section 6.04(e) after an officer or director first obtains Knowledge affect the obligations of the receipt by Siebel (or any of the Siebel Representatives) of any Acquisition Proposal, any inquiry that would reasonably be expected to lead to an Acquisition Proposal, or any request for confidential information relating to Siebel or any of its Subsidiaries or for access to the business, properties, assets, books or records of Siebel or any of its Subsidiaries by any Third Party that has informed Siebel that it is considering making, or has made, an Acquisition Proposal. Siebel shall provide such notice orally and Company specified in writing and shall identify the Third Party making, and the material terms and conditions of, any such Acquisition Proposal, inquiry or request. Siebel shall promptly provide Oracle with any non-public information concerning Siebel’s business, present or future performance, financial condition or results of operations, provided to any Qualified Third Party after the date of this Agreement in connection with an Acquisition Proposal made by such Third Party that was not previously provided to Oracle. Siebel shall keep Oracle promptly and reasonably informed, on a reasonably current basis, of the status and material details of any such Acquisition Proposal, inquiry or request. Siebel shall, and shall cause its Subsidiaries and the Siebel Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party with respect to any Acquisition Proposal and shall instruct any such Third Party (or its agents or advisors) in possession of confidential information about Siebel that was furnished by or on behalf of Siebel with respect to any Acquisition Proposal within the six months prior to the date hereof to return or destroy all such informationSection 6.04(b).
Appears in 2 contracts
Samples: Merger Agreement (Thoratec Corp), Merger Agreement (HeartWare International, Inc.)
No Solicitation; Other Offers. (a) Neither Siebel Subject to the remainder of this Section 6.04, upon execution of this Agreement, the Company shall, and shall cause its Subsidiaries and its and their respective directors, officers, employees, Affiliates, investment bankers, attorneys, accountants and other advisors or representatives (collectively, “Representatives”) to, immediately cease or cause to be terminated any and all activities, discussions or negotiations with any Person with respect to any Acquisition Proposal. The Company shall promptly after the date of this Agreement instruct each Third Party which has heretofore executed a confidentiality agreement relating to an Acquisition Proposal with or for the benefit of the Company to promptly return or destroy all information, documents, and materials relating to the Acquisition Proposal or to the Company or its businesses, operations or affairs heretofore furnished by the Company or any of its Representatives to such Person or any of its Representatives in accordance with the terms of any confidentiality agreement with such Person. Subject to Section 6.04(b) and Section 6.04(c), from the execution of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article 10, neither the Company nor any of its Subsidiaries shall, nor shall Siebel or any of and the Company and its Subsidiaries shall not authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants or other agents, representatives or advisors (the “Siebel Representatives”) Representatives to, directly or indirectly, (i) solicit, initiateinitiate or take any action to knowingly facilitate, knowingly facilitate encourage or assist, or knowingly encourage induce the making, submission of any or announcement of, an Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any non-public information relating to Siebel the Company or any of its Subsidiaries to or afford access to the business, properties, assets, books books, records or records other information of Siebel the Company or any of its Subsidiaries to to, otherwise knowingly cooperate in any way with any Third Party that is seeking to make, or has made, or has informed Siebel that it is seeking could reasonably be expected to make, an Acquisition Proposal, (iii) grant approve, adopt, endorse, or recommend an Acquisition Proposal, (iv) fail to make, withhold, withdraw or amend, qualify or modify, in each case in a manner adverse to Parent, or publicly propose to withhold, withdraw or amend, modify or qualify, in each case in a manner adverse to Parent, the Company Board Recommendation, (v) propose publicly to approve, adopt, endorse or recommend any Third Party waiver Acquisition Proposal (any of the foregoing in clause (iii), (iv) or release under (v), whether taken by the Board of Directors of the Company or any standstill committee thereof being referred to as an “Adverse Recommendation Change”), (vi) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar agreement instrument contemplating or otherwise relating to an Acquisition Proposal, or (vii) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation inapplicable to any transactions contemplated by an Acquisition Proposal; provided that no action expressly permitted by Section 8.08 with respect to any class of equity securities of Siebel standstill provision in any agreement to which the Company or any of its Subsidiaries is a party shall constitute a breach of this Section 6.04.
(b) Notwithstanding anything contained in Section 6.04(a) to the contrary, if at any time prior to obtaining the Company Stockholder Approval, (i) the Company or amend any of its Representatives has received a bona fide written Acquisition Proposal that the Board of Directors of the Company reasonably believes, after consultation with its outside legal counsel and financial advisors, constitutes, or terminate is reasonably likely to lead to, a Superior Proposal, (ii) the Siebel Rights Plan Board of Directors of the Company determines in good faith, after consultation with outside legal counsel, that the failure to take action with respect to such Acquisition Proposal would likely be inconsistent with its fiduciary duties under Applicable Law, (iii) such Acquisition Proposal was not the result of a breach of Section 6.04(a) and (iv) the Company provides to Parent in accordance with Section 6.04(d) the information required under Section 6.04(d) to be delivered by the Company to Parent, then, so long as the foregoing conditions in the immediately preceding clauses (i)-(iv) remain satisfied, the Company, directly or redeem indirectly through its Representatives, may (A) engage in negotiations or discussions with such Third Party and its Representatives with respect to the Siebel Rights Acquisition Proposal, and (B) furnish to such Third Party or its Representatives non-public information relating to the Company or any of its Subsidiaries pursuant to an Acceptable Confidentiality Agreement; provided that the Company shall concurrently provide to Parent any such information that is provided to any such Person which was not previously provided to or made available to Parent.
(c) In addition, nothing contained herein shall prevent the Company or the Board of Directors of the Company from (i) taking and disclosing to its stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the 1934 Act, (ii) making any legally required disclosure to the Company’s stockholders with regard to the transactions contemplated by this Agreement or an Acquisition Proposal (provided that neither the Company nor its Board of Directors may recommend any Acquisition Proposal unless expressly permitted by Section 6.04(e)), (iii) contacting and engaging in discussions with any person or group and their respective Representatives who has made an Acquisition Proposal that was not the result of a breach of this Section 6.04 solely for the purpose of clarifying such Acquisition Proposal and the terms thereof or (iv) enter into issuing a “stop, look and listen” disclosure or similar communication of the type contemplated by Rule 14d-9(f) under the 1934 Act; provided, however, that any agreement disclosure of a position contemplated by Rule 14e-2(a) under the 1934 Act other than (except for confidentiality agreementsA) a “stop, referred look and listen” communication limited solely to in Section 6.04(b)the type contemplated by Rule 14d-9(f) with under the 1934 Act, (B) any Third Party with respect to an express rejection of any applicable Acquisition Proposal made by such Third Partyor (C) any express reaffirmation of the Company Board Recommendation, shall be deemed to be an Adverse Recommendation Change. No change, withdrawal or modification of the Company Board Recommendation shall change the approval of the Board of Directors of the Company for purposes of causing any other agreement, arrangement or understanding requiring it law (including Section 203 of Delaware Law) to abandon, terminate or fail be inapplicable to consummate the Mergers or any of Merger and the other transactions contemplated by this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, Siebel (through one or more of the Siebel Representatives) or its Board of Directors may, prior to the Siebel Stockholder Approval, (i) engage in negotiations or discussions with any Third Party (or with the representatives of any Third Party) that has made an Acquisition Proposal not solicited in violation of Section 6.03(a) if such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal (such Third Party, a “Qualified Third Party”), (ii) furnish to such Qualified Third Party or its representatives non-public information relating to Siebel or any of its Subsidiaries pursuant to an executed confidentiality agreement containing customary nondisclosure provisions (which need not include “standstill ” or similar provisions) (and a copy of which shall be promptly (in all events within 24 hours) provided for informational purposes only to Oracle), (iii) grant a waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel or any of its Subsidiaries, (iv) amend or terminate the Siebel Rights Plan or redeem the Siebel Rights, (v) withdraw the Siebel Board Recommendation or modify the Siebel Board Recommendation in a manner adverse to Oracle (any such action, a “Change in Recommendation”), (vi) terminate this Agreement pursuant to and subject to the terms of Section 9.01(d) and/or (vii) take any action that any court of competent jurisdiction orders Siebel, one or more of the Siebel Representatives or the Board of Directors of Siebel to take, but in each case referred to in the foregoing clauses (iii), (iv) and (v) only if the Board of Directors of Siebel determines in good faith by a majority vote, after consultation with its outside legal counsel, that failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Law. Nothing contained herein shall prevent the Board of Directors of Siebel from complying with Rule 14e-2(a), Rule 14d-9 and Item 1012(a) of Regulation M-A under the 1934 Act with regard to an Acquisition Proposal; provided that the Board of Directors of Siebel shall not recommend that Siebel’s stockholders tender shares of capital stock in connection with any tender or exchange offer unless such Board of Directors shall have determined in good faith by a majority vote, after consultation with its outside legal counsel, that failure to make such recommendation would be reasonably likely to result in a breach of its fiduciary duties under applicable Law.
(cd) The Board of Directors of Siebel the Company shall not take any of the actions referred to in clauses (iSection 6.04(b) through (vii) of unless the preceding subsection unless Siebel Company shall have delivered to Oracle Parent a prior written notice advising Oracle Parent that it intends to take such action. In addition, Siebel prior to obtaining the Company Stockholder Approval, the Company shall notify Oracle Parent promptly (but in no any event later than 24 within twenty-four (24) hours) orally and in writing after an officer or director first obtains Knowledge of the receipt by Siebel the Company (or any of the Siebel its Representatives) of (i) any Acquisition Proposal, any inquiry that would reasonably be expected to lead to an Acquisition Proposal, or (ii) any request for confidential information relating to Siebel the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries by any Third Party that has informed Siebel that it is considering making, with respect to an actual or has made, an potential Acquisition Proposal. Siebel The Company shall also provide such notice orally and in writing and shall identify the identity of the Third Party making, submitting, inquiring about or expressing interest with respect to such Acquisition Proposal (except to the extent disclosure of such identity would breach a confidentiality obligation in effect prior to the execution of this Agreement) and (A) if it is in writing, a copy of such Acquisition Proposal and any related draft agreements and other written material from such Third Party (which, in each case, may be redacted, if necessary, solely to remove the identity of such Third Party in order to comply with a confidentiality obligation in effect prior to the execution of this Agreement) setting forth the terms and conditions of such Acquisition Proposal and (B) if oral, a summary thereof (including the material terms and conditions of, any such of the Acquisition Proposal, inquiry or request). Siebel shall promptly provide Oracle with any non-public information concerning Siebel’s business, present or future performance, financial condition or results of operations, provided to any Qualified Third Party after the date of this Agreement in connection with an Acquisition Proposal made by such Third Party that was not previously provided to Oracle. Siebel The Company shall keep Oracle promptly and Parent reasonably informed, informed on a reasonably current basis, prompt and timely basis of the status and material details of any such Acquisition Proposal, inquiry or requestProposal and with respect to any change to the material terms of any such Acquisition Proposal within twenty-four (24) hours of any such change. Siebel shallThe Company shall not, and shall cause its Subsidiaries and the Siebel Representatives not to, cease immediately and cause to be terminated enter into any and all existing activitiescontract, discussions arrangement, or negotiations, if any, commitment with any Third Party subsequent to the date of this Agreement, and neither the Company nor any of its Subsidiaries is or shall become party to any contract, arrangement, or commitment, in each case, that prohibits the Company from providing such information to Parent.
(e) Notwithstanding anything contained in this Agreement to the contrary, prior to obtaining the Company Stockholder Approval, the Board of Directors of the Company may (i) (x) effect an Adverse Recommendation Change in respect of an Acquisition Proposal, or (y) enter into an agreement providing for a transaction that constitutes a Superior Proposal, if (A) the Company shall have received an Acquisition Proposal that was not the result of a breach of Section 6.04(a) that the Board of Directors of the Company determines, after consultation with its outside legal counsel and financial advisors, constitutes a Superior Proposal and the Company shall have otherwise complied in all material respects with the provisions of Section 6.04, (B) the Board of Directors of the Company determines in good faith, after consultation with outside legal counsel, that the failure to take action with respect to such Superior Proposal would likely be inconsistent with its fiduciary duties under Applicable Law, (C) the Company has previously notified Parent in writing that it intends to take such action (a “Section 6.04 Notice”), (D) the Company shall have made its Representatives available to discuss in good faith with Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement during the three (3) Business Day period following delivery by the Company to Parent of the Section 6.04 Notice delivered to Parent, (E) if Parent shall have delivered to the Company a written, binding and irrevocable offer capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day period, the Board of Directors of the Company shall have determined in good faith (after consultation with its outside legal counsel and financial advisors), after considering the terms of such offer by Parent, that the Superior Proposal giving rise to such Section 6.04 Notice continues to be a Superior Proposal, and (F) in the case of clause (y) above, the Company terminates this Agreement in accordance with
Section 10.01 (d)(i), or (ii) effect an Adverse Recommendation Change other than in respect of an Acquisition Proposal if (A) the Board of Directors of the Company determines in good faith, after consultation with outside legal counsel, that the failure to effect such Adverse Recommendation Change would likely be inconsistent with its fiduciary duties under Applicable Law, (B) the Company has previously delivered to Parent a Section 6.04 Notice that it intends to take such action, (C) the Company shall have made its Representatives available to discuss in good faith with Parent’s Representatives any proposed modifications to the terms and conditions of this Agreement during the three (3) Business Day period following delivery by the Company to Parent of the Section 6.04 Notice delivered to Parent, and (D) if Parent shall instruct have delivered to the Company a written, binding and irrevocable offer capable of being accepted by the Company to alter the terms or conditions of this Agreement during such three (3) Business Day period, the Board of Directors of the Company shall have determined in good faith, after consultation with outside legal counsel and after considering the terms of such offer by Parent, that the failure to effect such Adverse Recommendation Change would likely be inconsistent with its fiduciary duties under Applicable Law. If any such Third Party Superior Proposal that is the subject of clause (or its agents or advisorsi) in possession of confidential information about Siebel that was furnished by or on behalf this Section 6.04(e) is revised, including any revision to price, then the Company shall deliver to Parent a new Section 6.04 Notice and again comply with the requirements of Siebel clause (i) of this Section 6.04(e) with respect to any Acquisition such revised Superior Proposal, on each occasion on which a revised Superior Proposal within is submitted, provided that in connection with each new Section 6.04 Notice contemplated by this sentence, each reference to a three (3) Business Day period in the six months prior preceding sentence shall be deemed to be a reference to the date hereof to return longer of (x) a forty-eight (48) hour period or destroy all such information.(y) a period ending on 11:59 p.m. (New York time) on the Business Day following delivery of the applicable Section 6.04
Appears in 2 contracts
Samples: Merger Agreement (Hanesbrands Inc.), Merger Agreement (Maidenform Brands, Inc.)
No Solicitation; Other Offers. (a) Neither Siebel the Company nor any of its Subsidiaries shall, nor shall Siebel the Company or any of its Subsidiaries authorize or permit any of its or their officersOfficers, directors, employees, investment bankers, attorneys, accountants accountants, consultants or other agents, representatives agents or advisors (the “Siebel Representatives”) to, directly or indirectly, (i) solicit, initiate, knowingly initiate or take any action to facilitate or knowingly encourage the submission of any Acquisition ProposalProposal or any inquiry with respect thereto, (ii) enter into or participate in any discussions or negotiations with, furnish any non-public information relating to Siebel the Company or any of its Subsidiaries to or afford access to the business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries to to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that has made, or has informed Siebel that it is seeking to make, or has made, an Acquisition Proposal, (iii) approve, endorse or recommend any Acquisition Proposal, (iv) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to an Acquisition Proposal, (v) fail to make, withdraw, or modify in a manner adverse to Parent its recommendation to its stockholders referred to in Sections 2.02 and/or 7.02 hereof, or (vi) grant any Third Party waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel the Company or any of its Subsidiaries Subsidiaries. Nothing contained in this Section 7.04 shall prohibit the Company (x) from taking and disclosing to its stockholders a position contemplated by Rule 14d-9 or amend or terminate Rule 14e-2(a) promulgated under the Siebel Rights Plan or redeem the Siebel Rights or (iv) enter into any agreement (except for confidentiality agreements, referred to in Section 6.04(b)) 1934 Act with any Third Party with respect regard to an Acquisition Proposal made by such Third Party, or any other agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate (provided that the Mergers or any Board of Directors of the Company shall not withdraw or modify in an adverse manner its approval or recommendation referred to in Sections 2.02 and/or 7.02 hereof except as set forth below) or (y) in the event that a Superior Proposal is made and the Board of Directors of the Company determines in good faith, after consultation with outside counsel, that it would otherwise constitute a breach of its fiduciary duty to stockholders, from withdrawing or modifying its recommendation referred to in Sections 2.02 and/or 7.02 hereof prior to the purchase of Shares pursuant to the Offer, so long as the Company continues to comply with all other transactions contemplated by provisions of this AgreementAgreement and so long as all the conditions to the Company's rights to terminate this Agreement in accordance with Section 11.01(b)(iii) have been satisfied (including the expiration of the 72-hour period described therein and the payment of all amounts required pursuant to Section 12.04).
(b) Notwithstanding anything to the contrary contained in this Agreementforegoing, Siebel (through one or more of the Siebel Representatives) or its Board of Directors mayof the Company, prior to the Siebel Stockholder Approvaldirectly or indirectly through advisors, agents or other intermediaries, may (i) engage in negotiations or discussions with any Third Party (that, without prior solicitation by or negotiation with the representatives of any Third Party) that Company, has made an Acquisition Proposal not solicited in violation of Section 6.03(a) if such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal (such Third Party, a “Qualified Third Party”)Proposal, (ii) furnish to such Qualified Third Party or its representatives non-public nonpublic information relating to Siebel the Company or any of its Subsidiaries pursuant to an executed a confidentiality agreement containing customary nondisclosure provisions with terms no less favorable to the Company than those contained in the Confidentiality Agreement (which need not include “standstill ” or similar provisions) (and a copy of which shall be promptly (in all events within 24 hours) provided for informational purposes only to OracleParent), (iii) grant following receipt of such Superior Proposal, take and disclose to its stockholders a waiver position contemplated by Rule 14e-2(a) under the 1934 Act or release under any standstill or similar agreement with respect otherwise make disclosure to any class of equity securities of Siebel or any of its Subsidiariesthem, (iv) amend or terminate the Siebel Rights Plan or redeem the Siebel Rightsfollowing receipt of such Superior Proposal, (v) withdraw the Siebel Board Recommendation fail to make, withdraw, or modify the Siebel Board Recommendation in a manner adverse to Oracle (any such action, a “Change Parent its recommendation to its stockholders referred to in Recommendation”), (vi) terminate this Agreement pursuant to and subject to the terms of Section 9.01(d) Sections 2.02 and/or 7.02 hereof and/or (viiv) take any non-appealable, final action that ordered to be taken by the Company by any court of competent jurisdiction orders Siebel, one or more of the Siebel Representatives or the Board of Directors of Siebel to takejurisdiction, but in each case referred to in the foregoing clauses (iii), i) through (iv) and (v) only if the Board of Directors of Siebel the Company determines in good faith by a majority vote, after consultation with its outside legal counsel, that failure to it must take such action would be reasonably likely to result in a breach of comply with its fiduciary duties under applicable Law. Nothing contained herein shall prevent the Board of Directors of Siebel from complying with Rule 14e-2(a), Rule 14d-9 and Item 1012(a) of Regulation M-A under the 1934 Act with regard to an Acquisition Proposal; provided that the Board of Directors of Siebel shall not recommend that Siebel’s stockholders tender shares of capital stock in connection with any tender or exchange offer unless such Board of Directors shall have determined in good faith by a majority vote, after consultation with its outside legal counsel, that failure to make such recommendation would be reasonably likely to result in a breach of its fiduciary duties under applicable Lawlaw.
(c) The Board of Directors of Siebel the Company shall not take any of the actions referred to in clauses (i) through (viiiv) of the preceding subsection unless Siebel the Company shall have delivered to Oracle a Parent 72 hours prior written notice advising Oracle Parent that it intends to take such action, and the Company shall continue to advise Parent after taking such action. In addition, Siebel the Company shall notify Oracle Parent promptly (but in no event later than 24 hours) after an officer or director first obtains Knowledge of the receipt by Siebel the Company (or any of the Siebel Representativesits advisors) of any Acquisition Proposal, any inquiry that would reasonably be expected to lead to an Acquisition Proposal, Proposal or any request for confidential information relating to Siebel the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries by any Third Party that has informed Siebel that it is may be considering making, or has made, an Acquisition Proposal. Siebel The Company shall provide such notice orally and in writing and shall identify the Third Party making, and the material terms and conditions of, any such Acquisition Proposal, inquiry indication or request. Siebel shall promptly provide Oracle with any non-public information concerning Siebel’s business, present or future performance, financial condition or results of operations, provided to any Qualified Third Party after the date of this Agreement in connection with an Acquisition Proposal made by such Third Party that was not previously provided to Oracle. Siebel The Company shall keep Oracle promptly and reasonably Parent fully informed, on a reasonably current basis, of the status and material details of any such Acquisition Proposal, inquiry indication or request. Siebel The Company shall, and shall cause its Subsidiaries and the Siebel Representatives advisors, employees and other agents of the Company and any of its Subsidiaries to, cease immediately and cause to be terminated any and all existing activities, discussions or and negotiations, if any, with any Third Party conducted prior to the date hereof with respect to any Acquisition Proposal and shall instruct use its reasonable best efforts to cause any such Third Party (or its agents or advisors) in possession of confidential information about Siebel the Company that was furnished by or on behalf of Siebel with respect to any Acquisition Proposal within the six months prior to the date hereof Company to return or destroy all such information.
Appears in 1 contract
Samples: Merger Agreement (Novell Inc)
No Solicitation; Other Offers. (a) Neither Siebel From and after the date of this Agreement, neither the Company nor any of its Subsidiaries shall, nor shall Siebel the Company or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants accountants, consultants or other agents, representatives agents or advisors (the “Siebel Representatives”) to, directly or indirectly, (i) solicit, initiate, knowingly initiate or take any action to facilitate or knowingly encourage the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any non-public information relating to Siebel the Company or any of its Subsidiaries to or afford access to the business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries to to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that has madenotified the Board of Directors of the Company or any officer of the Company or any of the Company’s advisors (each such Person and the Board of Directors of the Company, a “Company Representative”) that it is, or has informed Siebel that it is to the knowledge of the Company is, seeking to make, or has made, an Acquisition Proposal, in each such case, in connection with such Acquisition Proposal, (iii) grant any Third Party waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel the Company or any of its Subsidiaries or Subsidiaries, (iv) amend or terminate the Siebel Rights Plan grant any waiver or release or approve any transactions or redeem Rights under the Siebel Rights Agreement (except as contemplated herein with respect to the Merger) or (ivv) enter into any agreement (except for confidentiality agreements, referred to in Section 6.04(b)) with any Third Party with respect to an Acquisition Proposal made by such Third Party, or any other agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Mergers or any of the other transactions contemplated by this AgreementProposal.
(b) Notwithstanding anything to the contrary contained in this Agreementforegoing, Siebel (through one or more of the Siebel Representatives) or its Board of Directors of the Company, directly or indirectly through advisors, agents or other intermediaries, may, at any time prior to the Siebel Stockholder Approval, adoption and approval of this Agreement by the Company’s stockholders: (A) (i) engage subject to the Company’s compliance with Section 6.04(a)(i), enter into or participate in any discussions or negotiations or discussions with any Third Party (or with the representatives of any Third Party) that has made an Acquisition Proposal not solicited that the Board of Directors Table of Contents of the Company determines in violation of Section 6.03(a) if such Acquisition Proposal good faith by a majority vote constitutes or could is reasonably be expected to lead to result in a Superior Proposal (such Third Party, a “Qualified Third Party”)Proposal, (ii) furnish to such Qualified Third Party or its representatives non-public nonpublic information relating to Siebel the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to such Third Party, in each case pursuant to an executed a confidentiality agreement containing customary nondisclosure provisions (which need not include “standstill ” or similar provisions) (and a copy of which shall be promptly (in all events within 24 hours) provided for informational purposes only to Oracle)Parent) with terms no less favorable to the Company than those contained in the Confidentiality Agreement, or otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by such Third Party, in each case in a manner no more favorable to such Third Party than the cooperation or assistance given to Parent or the efforts to facilitate or encourage any effort by Parent, (iii) following receipt of a Superior Proposal, determine not to make or withdraw or modify in a manner adverse to Parent its recommendation to its stockholders referred to in Section 6.02 hereof and/or (iv) take any non-appealable, final action that any court of competent jurisdiction orders the Company to take, but in each case referred to in the foregoing clauses (i) through (iii) only if the Board of Directors of the Company determines in good faith by a majority vote, after considering advice from outside legal counsel to the Company of nationally recognized reputation, that failure to take such action is reasonably likely to result in a breach of its fiduciary duties under applicable law; or (B) grant a any waiver or release to any Third Party under any standstill or similar agreement with respect to any class of equity securities of Siebel the Company or any of its Subsidiaries, (iv) amend or terminate the Siebel Rights Plan or redeem the Siebel Rights, (v) withdraw the Siebel Board Recommendation or modify the Siebel Board Recommendation in a manner adverse to Oracle (any such action, a “Change in Recommendation”), (vi) terminate this Agreement pursuant to and subject to the terms of Section 9.01(d) and/or (vii) take any action that any court of competent jurisdiction orders Siebel, one or more of the Siebel Representatives or the Board of Directors of Siebel to take, but in each case referred to in the foregoing clauses (iii), (iv) and (v) only Subsidiaries if the Board of Directors of Siebel the Company first determines in good faith by a majority votevote that such Third Party intends to make a Superior Proposal, after consultation with its outside legal counsel, provided that failure such waiver or release relates only to take the standstill provisions of such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Lawagreement. Nothing contained herein shall prevent the Board of Directors of Siebel the Company from complying with Rule 14e-2(a), Rule 14d-9 and Item 1012(a) of Regulation M-A under the 1934 Act with regard to an Acquisition Proposal; provided that the Board of Directors of Siebel shall not recommend that Siebel’s stockholders tender shares of capital stock in connection with any tender or exchange offer unless such Board of Directors shall have determined in good faith by a majority vote, after consultation with its outside legal counsel, that failure to make such recommendation would be reasonably likely to result in a breach of its fiduciary duties under applicable Law.
(c) The Board of Directors of Siebel the Company shall not take any of the actions referred to in clauses (i) through (viiiv) of the preceding subsection unless Siebel the Company shall have delivered to Oracle a Parent prior written notice advising Oracle Parent that it intends to take such action. In addition, Siebel the Company shall notify Oracle Parent promptly (but in no event later than 24 hours) after an officer or director first obtains Knowledge of the receipt by Siebel (or any of the Siebel Representatives) Company Representative of any Acquisition Proposal, any inquiry notification to any Company Representative that would reasonably be expected to lead to a Third Party is considering making an Acquisition Proposal, Proposal or of any request received by any Company Representative for confidential information relating to Siebel the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries by any Third Party that has informed Siebel made, or that has notified any Company Representative that it is is, or to the knowledge of the Company is, considering making, or has made, an Acquisition Proposal. Siebel The Company shall provide such notice orally and in writing in accordance with Section 11.01 and shall identify the Third Party makingmaking any such Acquisition Proposal, notification or request, and the material terms and conditions of, of any such Acquisition Proposal, inquiry Proposal or requestnotification. Siebel shall promptly provide Oracle with any non-public information concerning Siebel’s business, present or future performance, financial condition or results of operations, provided to any Qualified Third Party after the date of this Agreement in connection with an Acquisition Proposal made by such Third Party that was not previously provided to Oracle. Siebel The Company shall keep Oracle promptly and reasonably Parent fully informed, on a reasonably current prompt basis, of any material change in the status and material or details of any such Acquisition Proposal, inquiry Proposal or requestnotification. Siebel The Company shall, and shall cause its Subsidiaries and the Siebel Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party with respect to any Acquisition Proposal and shall instruct any such Third Party (or its agents or advisors) in possession of confidential information about Siebel that was furnished by or on behalf of Siebel with respect to any Acquisition Proposal within the six months prior to the date hereof to return or destroy all such information.,
Appears in 1 contract
Samples: Merger Agreement (Barra Inc /Ca)
No Solicitation; Other Offers. (a) Neither Siebel nor any of its Subsidiaries shallSubject to Section 6.03(e), until the date on which this Agreement is terminated pursuant to Section 8.01, the Company shall not, nor shall Siebel or any of its Subsidiaries it authorize or permit any of its Subsidiaries, any of its or their officers, respective directors, employeesofficers or employees or any financial advisor, investment bankersattorney, attorneys, accountants accountant or other agentsadvisor, representatives agent or advisors representative (the collectively, “Siebel Representatives”) retained by the Company or any of its Subsidiaries to, directly or indirectlyindirectly through another Person, except as otherwise provided below, (i) solicit, initiate, knowingly facilitate or knowingly encourage the submission (including by way of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish furnishing any non-public information relating to Siebel the Company or any of its Subsidiaries Subsidiaries), or knowingly induce or take any other action which would reasonably be expected to or afford access lead to the businessmaking, propertiessubmission or announcement of, assets, books any proposal or records of Siebel or any of its Subsidiaries to any Third Party inquiry that has madeconstitutes, or has informed Siebel that it is seeking reasonably likely to makelead to, an Acquisition Proposal, (ii) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a Third Party becoming an “interested shareholder” under, the TBCA), or any restrictive provision of any applicable anti-takeover provision in the Company Charter Documents, inapplicable to any transactions contemplated by an Acquisition Proposal (and, to the extent permitted thereunder, the Company shall promptly take all steps necessary to terminate any waiver that may have been heretofore granted, to any Person other than Parent or any of Parent’s Affiliates, under any such provisions), (iii) grant other than informing Persons of the provisions contained in this Section 6.03, enter into, continue or participate in any Third Party waiver discussions or release any negotiations regarding any Acquisition Proposal or otherwise take any other action to knowingly facilitate or knowingly induce any effort or attempt to make or implement an Acquisition Proposal, (iv) approve, endorse or recommend an Acquisition Proposal or any letter of intent, memorandum of understanding or other Contract contemplating an Acquisition Proposal or requiring the Company to abandon or terminate its obligations under the Agreement or deliberately fail to satisfy the Tender Offer Conditions; or (v) resolve, propose or agree to do any standstill of the foregoing. The Company shall, and shall cause its Subsidiaries and their respective Representatives to, immediately cease and cause to be terminated all existing discussions or similar agreement negotiations with any Person previously conducted with respect to any class of equity securities of Siebel Acquisition Proposal. The Company shall promptly deny access to any data room (virtual or actual) containing any of its Subsidiaries or amend or terminate the Siebel Rights Plan or redeem the Siebel Rights or (iv) enter into any agreement (except for confidentiality agreements, referred confidential information previously furnished to in Section 6.04(b)) with any Third Party with respect relating to an any Acquisition Proposal made by to any such Third Party, or any other agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Mergers or any of the other transactions contemplated by this Agreement.
(b) Notwithstanding anything in this Section 6.03 to the contrary contained contrary, at any time prior to the time on which the Company has received the Company Shareholder Approval, in this Agreementresponse to (i) an unsolicited written Acquisition Proposal, Siebel (through one or more received under circumstances not involving a breach of Section 6.03(a), that the Siebel Representatives) or its Company’s Board of Directors may, prior to the Siebel Stockholder Approval, determines in good faith (iafter consultation with its financial advisor) engage in negotiations or discussions with any Third Party (or with the representatives of any Third Party) that has made an Acquisition Proposal not solicited in violation of Section 6.03(a) if such Acquisition Proposal constitutes or could reasonably be expected to lead result in a Superior Proposal, or (ii) an inquiry relating to an Acquisition Proposal by a Person that the Company’s Board of Directors determines in good faith is credible and reasonably capable of making a Superior Proposal (such Third Party, a an “Qualified Third PartyInquiry”), (ii) furnish to such Qualified Third Party or its representatives non-public information relating to Siebel or any of its Subsidiaries pursuant to an executed confidentiality agreement containing customary nondisclosure provisions (which need not include “standstill ” or similar provisions) (and the Company may, upon a copy of which shall be promptly (in all events within 24 hours) provided for informational purposes only to Oracle), (iii) grant a waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel or any of its Subsidiaries, (iv) amend or terminate good faith determination by the Siebel Rights Plan or redeem the Siebel Rights, (v) withdraw the Siebel Board Recommendation or modify the Siebel Board Recommendation in a manner adverse to Oracle (any such action, a “Change in Recommendation”), (vi) terminate this Agreement pursuant to and subject to the terms of Section 9.01(d) and/or (vii) take any action that any court of competent jurisdiction orders Siebel, one or more of the Siebel Representatives or the Company’s Board of Directors (after receiving the advice of Siebel to take, but in each case referred to in the foregoing clauses (iii), (iv) and (v) only if the Board of Directors of Siebel determines in good faith by a majority vote, after consultation with its outside legal counsel, ) that failure to take such action would be inconsistent with the Company’s Board of Directors’ fiduciary duties to the Company Shareholders under applicable Law, (x) furnish information with respect to the Company and its Subsidiaries to the Person making such Acquisition Proposal or Inquiry (and such Person’s Representatives); provided, that, the Company and such Person enter into an Acceptable Confidentiality Agreement; and provided, further, that all such information shall have been previously provided to Parent or is provided to Parent at substantially the same time it is provided to such Person and (y) participate in discussions or negotiations with the Person making such Acquisition Proposal or Inquiry (and its Representatives) regarding such Acquisition Proposal or Inquiry. The Company shall not terminate, waive, amend, release or modify any material provision of any confidentiality agreement to which it or any of its Subsidiaries is a party with respect to any Acquisition Proposal in a manner that renders it not an Acceptable Confidentiality Agreement and shall enforce the material provisions of any such agreement.
(c) The Company shall promptly advise Parent in writing, and in no event later than twenty-four (24) hours after receipt of any Acquisition Proposal or Inquiry, and shall, in any such notice to Parent, indicate the identity of the Person making such Acquisition Proposal or Inquiry and of the Company’s intention to participate or engage in discussions or negotiations with, or furnish non-public information to, such Person and the material terms and conditions of any proposal or offer or the nature of any inquiries or contacts, and thereafter shall promptly keep Parent reasonably likely informed of all material developments affecting the status and the material terms of any such proposal, offer, inquiry or request and of the status of any such discussions or negotiations.
(d) The Company’s Board of Directors shall not (i) fail to result make the Company Board Recommendation to the Company Shareholders, (ii) withhold, withdraw, amend or modify in a manner adverse to Parent, or publicly propose to withhold, withdraw, amend or modify in a manner adverse to Parent, the Company Board Recommendation, (iii) adopt, approve, recommend, endorse or otherwise declare advisable the adoption of any Acquisition Proposal (it being understood that, with respect to a tender offer or exchange offer, taking a neutral position or no position (other than in a communication made in compliance with Rule 14d-9(f) promulgated under the Exchange Act) with respect to any Acquisition Proposal shall be considered a breach of this clause (iii)), or (iv) resolve, agree or publicly propose to take any such actions (each such foregoing action or failure to act in clauses (i) through (iv) being referred to as a “Change in the Company Recommendation”); provided, that the Company’s Board of Directors may make a Change in the Company Recommendation permitted by this Section 6.03(d) and as provided in Section 6.03(e). Notwithstanding the foregoing, the Company’s Board of Directors may at any time prior to the Acceptance Time:
(1) effect a Change in the Company Recommendation in response to an Acquisition Proposal if the Company’s Board of Directors concludes in good faith, after consultation with outside counsel, that the failure to take such action would be inconsistent with its fiduciary duties to the Company Shareholders under applicable Law and the Company’s Board of Directors concludes in good faith, after consultation with the Company’s financial advisor, that the Acquisition Proposal constitutes a Superior Proposal;
(2) effect a Change in the Company Recommendation in response to the occurrence of an Intervening Event if the Company’s Board of Directors concludes in good faith, after consultation with outside counsel, that the failure to effect such Change in the Company Recommendation would be inconsistent with its fiduciary duties to the Company Shareholders under applicable Law. Nothing contained herein shall prevent ; or
(3) terminate this Agreement pursuant to Section 8.01(d)(ii) and enter into a definitive agreement with respect to a Superior Proposal, but only if the Company receives an Acquisition Proposal that the Company’s Board of Directors concludes in good faith constitutes a Superior Proposal and the Company’s Board of Siebel Directors concludes in good faith, after consultation with outside counsel, that the failure to enter into such definitive agreement would be inconsistent with its fiduciary duties to the Company Shareholders under applicable Law; provided that in each case that, the Company complies with Section 6.03(e) prior to taking any of the actions set forth in clauses Section 6.03(d)(1), (2) and (3) above.
(e) Notwithstanding anything to the contrary set forth in Section 6.03(d), the Company shall not be entitled to (i) make a Change in the Company Recommendation pursuant to Section 6.03(d)(1) or Section 6.03(d)(2) or (ii) enter into any Company Acquisition Agreement pursuant to Section 6.03(d)(3) unless:
(1) in the case of the matters referenced in Section 6.01(d)(1) and Section 6.01(d)(3), the Company has provided to Parent three (3) Business Days’ prior written notice of its intention to make a Change in the Company Recommendation (a “Recommendation Change Notice”), which Recommendation Change Notice shall specify that the Company’s Board of Directors is prepared to make a Change in the Company Recommendation, and shall contain a description of the material terms of the Acquisition Proposal that the Company’s Board of Directors has determined constitutes a Superior Proposal, a statement that the Company’s Board of Directors has determined that such Acquisition Proposal constitutes a Superior Proposal, a statement that the Company’s Board of Directors intends to enter into an agreement providing for such Superior Proposal, identifying the parties thereto, and delivering to Parent a copy of the Company Acquisition Agreement and any other related material documents for such Superior Proposal, in the form to be entered into (it being understood and agreed that the delivery of such Recommendation Change Notice shall not, in and of itself, be deemed to be a Change in the Company Recommendation), (B) at 5:00 pm, New York time, at the end of the three Business Day period following the date of receipt of the Recommendation Change Notice (or, in the event that the applicable Acquisition Proposal has been materially revised or modified, at 5:00 pm, New York time, on the third (3rd) Business Day following the date of receipt of notice of such material revision or modification, if later), such Acquisition Proposal has not been withdrawn and a Change in the Company Recommendation or entry into a Company Acquisition Agreement continues to be necessary in light of such Superior Proposal in order for the Company’s Board of Directors to comply with its fiduciary duties to the Company Shareholders under applicable Law, after taking into account any changes to the terms of this Agreement offered by Parent, (C) in the case of the matters referenced in Section 6.01(d)(3), the Company Board approves or recommends such Superior Proposal and (D) in the case of the matters referenced in Section 6.01(d)(3), the Company terminates this Agreement pursuant to Section 8.01 and pays to Parent the Termination Fee payable pursuant to Section 8.03; and
(2) in the case of the matters referenced in Section 6.03(d)(2), (A) the Company has provided to Parent a Recommendation Change Notice, which Recommendation Change Notice shall specify that the Company’s Board of Directors is prepared to make a Change in the Company Recommendation, and shall contain a description of the Intervening Event that the Company has determined requires the Change of Company Recommendation, including the basis for such determination (it being understood and agreed that the delivery of such Recommendation Change Notice shall not, in and of itself, be deemed to be a Change in the Company Recommendation) and (B) at 5:00 pm, New York time, at the end of the three (3) Business Day period following the date of receipt of the Recommendation Change Notice, a Change in the Company Recommendation continues to be necessary in light of such Intervening Event in order for the Company’s Board of Directors to comply with its fiduciary duties to the Company Shareholders under applicable Law, after taking into account any changes to the terms of this Agreement offered by Parent.
(f) Nothing contained in this Section 6.03 or elsewhere in this Agreement shall prohibit the Company from complying with (i) taking and disclosing to the Company Shareholders a position contemplated by Rule 14d-9, Rule 14e-2(a), Rule 14d-9 and ) or Item 1012(a) of Regulation M-A promulgated under the 1934 Exchange Act with regard or (ii) making any disclosure to an Acquisition Proposal; provided that the Company Shareholders if, in the good faith judgment of the Company’s Board of Directors of Siebel shall not recommend that Siebel’s stockholders tender shares of capital stock in connection with any tender or exchange offer unless such Board of Directors shall have determined in good faith by a majority voteDirectors, after consultation with its outside legal counsel, that failure so to make such recommendation disclose would be reasonably likely to result in a breach of inconsistent with its fiduciary duties under applicable Law.
(c; provided, however, that this Section 6.03(f) The shall not affect the obligations of the Company and the Company’s Board of Directors and the rights of Siebel shall not take Parent and Merger Sub under Sections 6.03(d) and 6.03(e) to the extent applicable to such disclosure (it being understood that neither any “stop, look and listen” letter or similar communication of the actions referred type contemplated by Rule 14d-9(f) under the Exchange Act, nor any accurate disclosure of factual information (other than the Company or the Company’s directors taking any action set forth in Sections 6.03(d) and 6.03(e)) to the Company Shareholders that is required to be made to such shareholders under applicable Law or in clauses (i) through (vii) satisfaction of the preceding subsection unless Siebel Company’s Board of Directors’ fiduciary duties or applicable Law, shall have delivered to Oracle a prior written notice advising Oracle that it intends to take such action. In addition, Siebel shall notify Oracle promptly (but in no event later than 24 hours) after an officer or director first obtains Knowledge of the receipt by Siebel (or any of the Siebel Representatives) of any Acquisition Proposal, any inquiry that would reasonably be expected to lead to an Acquisition Proposal, or any request for confidential information relating to Siebel or any of its Subsidiaries or for access to the business, properties, assets, books or records of Siebel or any of its Subsidiaries by any Third Party that has informed Siebel that it is considering making, or has made, an Acquisition Proposal. Siebel shall provide such notice orally and in writing and shall identify the Third Party making, and the material terms and conditions of, any such Acquisition Proposal, inquiry or request. Siebel shall promptly provide Oracle with any non-public information concerning Siebel’s business, present or future performance, financial condition or results of operations, provided to any Qualified Third Party after the date of this Agreement in connection with an Acquisition Proposal made by such Third Party that was not previously provided to Oracle. Siebel shall keep Oracle promptly and reasonably informed, on a reasonably current basis, of the status and material details of any such Acquisition Proposal, inquiry or request. Siebel shall, and shall cause its Subsidiaries and the Siebel Representatives to, cease immediately and cause deemed to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party with respect to any Acquisition Proposal and shall instruct any such Third Party (or its agents or advisors) a Change in possession of confidential information about Siebel that was furnished by or on behalf of Siebel with respect to any Acquisition Proposal within the six months prior to the date hereof to return or destroy all such informationCompany Recommendation).
Appears in 1 contract
No Solicitation; Other Offers. (a) Neither Siebel nor any From the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article 10, the Company and its Subsidiaries shall, nor and the Company shall Siebel or any of instruct and use reasonable best efforts to cause its Subsidiaries authorize or permit any of and its or their officers, directors, employees, investment bankers, attorneys, accountants or other agents, representatives or advisors (the “Siebel Representatives”) Subsidiaries’ respective Representatives to, directly or indirectly, (i) immediately cease and cause to be terminated any discussions or negotiations with any Persons that may be ongoing with respect to an Acquisition Proposal from any Third Party (except to notify such Person as to the existence of the provisions of this Section 6.03(a)), and (ii) not (A) solicit, initiate, or take any action to knowingly facilitate or knowingly encourage the submission of any Acquisition Proposal or any inquiry, offer or proposal that could reasonably be expected to lead to any Acquisition Proposal, (iiB) enter into or participate in any discussions or negotiations with, furnish any non-public information relating to Siebel the Company or any of its Subsidiaries to or afford access to the business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries to to, or otherwise knowingly cooperate in any way with, any Third Party that has made, or has informed Siebel that it is seeking to make, an Acquisition Proposalor has made, (iii) grant any Third Party waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel or any of its Subsidiaries or amend or terminate the Siebel Rights Plan or redeem the Siebel Rights or (iv) enter into any agreement (except for confidentiality agreements, referred to in Section 6.04(b)) with any Third Party with respect to an Acquisition Proposal made by such Third Party, or any other agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Mergers or any of the other transactions contemplated by this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, Siebel (through one or more of the Siebel Representatives) or its Board of Directors may, prior to the Siebel Stockholder Approval, (i) engage in negotiations or discussions with any Third Party (or with the representatives of any Third Party) that has made an Acquisition Proposal not solicited in violation of Section 6.03(a) if such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal make any Acquisition Proposal, or (such Third Party, a “Qualified Third Party”), (iiC) furnish to such Qualified Third Party enter into any letter of intent or its representatives non-public information relating to Siebel or any of its Subsidiaries pursuant to an executed confidentiality agreement containing customary nondisclosure provisions (which need not include “standstill ” or similar provisions) (and a copy of which shall be promptly (in all events within 24 hours) provided for informational purposes only to Oracle), (iii) grant a waiver or release under any standstill or similar other agreement with respect to any class of equity securities of Siebel Acquisition Proposal (except for an Acceptable Confidentiality Agreement permitted under Section 6.03(b)) with any Third Party; provided, however, that, notwithstanding anything to the contrary in this Agreement, the parties understand and agree that the Company may waive in connection with entering into this Agreement any provision in any agreement to which the Company or any of its Subsidiaries, (iv) Subsidiary thereof is a party that prohibits the counterparty thereto from confidentially requesting the Company to amend or terminate waive the Siebel Rights Plan or redeem the Siebel Rights, standstill provision in such agreement (v) withdraw the Siebel Board Recommendation or modify the Siebel Board Recommendation in a manner adverse to Oracle (any such actioni.e., a “Change in Recommendation”), (vidon’t ask to waive” provision) terminate this Agreement pursuant to and subject to the terms of Section 9.01(d) and/or (vii) take any action that any court of competent jurisdiction orders Siebel, one or more of the Siebel Representatives or extent the Board of Directors of Siebel to take, but in each case referred to in determines that the foregoing clauses (iii), (iv) and (v) only if the Board of Directors of Siebel determines in good faith by a majority vote, after consultation with its outside legal counsel, that failure to take such action would be reasonably likely to result in a breach of be inconsistent with its fiduciary duties under applicable Applicable Law. Nothing contained herein Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in the preceding sentence of this Section 6.03(a) by any Representative of the Company or its Subsidiaries shall prevent be a breach of this Section 6.03(a) by the Board Company. The Company agrees that it will promptly request any Third Party that has executed a confidentiality agreement in connection with its consideration of Directors of Siebel from complying with Rule 14e-2(a), Rule 14d-9 and Item 1012(a) of Regulation M-A under the 1934 Act with regard to an Acquisition Proposal; provided Proposal to promptly return or destroy all confidential information furnished to such Third Party or its representatives prior to the date hereof and shall terminate access to data rooms furnished in connection therewith.
(b) Notwithstanding anything contained in Section 6.03(a) to the contrary, if at any time prior to obtaining the Company Stockholder Approval, (i) the Company or any of its Representatives has received a bona fide Acquisition Proposal that did not result from a breach of Section 6.03(a) (it being understood that the Company and its Representatives may contact the Third Party making the Acquisition Proposal in order to clarify the terms and conditions thereof) and that the Board of Directors of Siebel shall not recommend that Siebel’s stockholders tender shares of capital stock in connection with any tender or exchange offer unless such Board of Directors shall have determined reasonably believes, in good faith by a majority votefaith, after consultation with its outside legal counselcounsel and financial advisors, that failure to make such recommendation would be reasonably likely to result in a breach of its fiduciary duties under applicable Law.
(c) The Board of Directors of Siebel shall not take any of the actions referred to in clauses (i) through (vii) of the preceding subsection unless Siebel shall have delivered to Oracle a prior written notice advising Oracle that it intends to take such action. In addition, Siebel shall notify Oracle promptly (but in no event later than 24 hours) after an officer constitutes or director first obtains Knowledge of the receipt by Siebel (or any of the Siebel Representatives) of any Acquisition Proposal, any inquiry that would reasonably be expected to lead to a Superior Proposal and (ii) the Board determines in good faith, after consultation with outside legal counsel, that the failure to take such action would be reasonably likely to be inconsistent with its fiduciary duties under Applicable Law, then the Company, directly or indirectly through its Representatives, may (A) engage in negotiations or discussions with such Third Party and its Representatives, and (B) furnish to such Third Party or its Representatives non-public information relating to the Company or any of its Subsidiaries pursuant to an Acceptable Confidentiality Agreement; provided, that the Company shall promptly provide to Parent any such information that is provided to any such Person which was not previously provided to or made available to Parent.
(c) Nothing contained in this Section 6.03 shall be deemed to prohibit the Company or the Board from (i) complying with its disclosure obligations under U.S. federal or state law or other Applicable Laws, including taking and disclosing to its stockholders a position contemplated by Rule 14d-9 or Rule 14e-2(a) under the 1934 Act or from making any legally required disclosure to stockholders with regard to the transactions contemplated by this Agreement or an Acquisition ProposalProposal (provided, that neither the Company nor its Board may recommend any Acquisition Proposal or make an Adverse Recommendation Change unless permitted by Section 6.03(f), (ii) making any “stop, look and listen” communication to the stockholders of the Company pursuant to Rule 14d-9(f) under the 1934 Act or (iii) contacting and engaging in discussions with any Person or group and their respective Representatives who has made an Acquisition Proposal that was not solicited in breach of this Section 6.03 solely for the purpose of clarifying such Acquisition Proposal and the terms thereof.
(d) The Company shall notify Parent promptly (and in any event within forty-eight (48) hours) after receipt by the Company (or any of its Representatives) of any Acquisition Proposal or any inquiry, offer or proposal that could reasonably be expected to lead to any Acquisition Proposal or any request for confidential information relating to Siebel the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries by any Third Party that has informed Siebel that it is may be considering making, or has mademade or could be reasonably expected to make, an Acquisition Proposal. Siebel , which notice shall provide such notice orally and in writing and shall identify the Third Party making, and include the material terms and conditions of, and the identity of the Person making, any such Acquisition Proposal, inquiry inquiry, offer or request. Siebel shall promptly provide Oracle with proposal or indication or request and, if applicable, copies of any non-public information concerning Siebel’s business, present or future performance, financial condition or results of operations, provided to any Qualified Third Party after the date of this Agreement in connection with an Acquisition Proposal made by such Third Party that was not previously provided to Oracle. Siebel proposed agreements and thereafter shall keep Oracle promptly and Parent reasonably informed, on a reasonably current basisprompt basis (and in any event within forty-eight (48) hours), of any material developments regarding any Acquisition Proposal or any material change to the terms and status and material details of any such Acquisition Proposal.
(e) Except as provided in Section 6.03(f), inquiry the Board shall not (i) withdraw or requestwithhold, or modify or qualify in a manner adverse to Parent, the Company Board Recommendation or publicly announce that it has proposed or resolved to take such action, (ii) fail to include the Company Board Recommendation in the Proxy Statement, (iii) in the event any tender or exchange offer is commenced that would constitute an Acquisition Proposal, fail to publish, send or provide to the Company stockholders, pursuant to Rule 14e-2(a) under the 1934 Act and within ten (10) Business Days after such tender or exchange offer is first commenced, or subsequently amended in any material respect, a statement recommending that the Company stockholders reject such tender or exchange offer and publicly affirming the Company Board Recommendation or (iv) recommend, adopt, approve or enter into, or publicly propose or resolve to recommend, adopt, approve or enter into, any Acquisition Proposal or any letter of intent, agreement in principle or definitive agreement (any of actions in clauses (i), (ii), (iii) or (iv), an “Adverse Recommendation Change”). Siebel shallNo Adverse Recommendation Change shall change the approval of the Board for purposes of causing any laws of the type referred to in Section 4.23 to be inapplicable to the transactions contemplated by this Agreement
(f) Notwithstanding anything contained in this Agreement to the contrary, prior to obtaining the Company Stockholder Approval, the Board may (i) (x) effect an Adverse Recommendation Change in respect of an Acquisition Proposal, or (y) enter into an agreement providing for a transaction that constitutes a Superior Proposal, if (A) the Company shall have received an Acquisition Proposal that the Board determines, in good faith, after consultation with its outside legal counsel and financial advisors, constitutes a Superior Proposal, (B) the Board determines in good faith, after consultation with outside legal counsel, that the failure to take action with respect to such Superior Proposal would be reasonably likely to be inconsistent with its fiduciary duties under Applicable Law, (C) the Company has provided four (4) Business Days prior written notice to Parent that it intends to take such action (a “Section 6.03 Notice”) (and such period (which shall commence on the first Business Day immediately following the day on which the Section 6.03 Notice is received by Parent), the “Notice Period”), (D) if Parent shall have delivered to the Company a written offer capable of being accepted by the Company to alter the terms or conditions of this Agreement during the Notice Period, the Board shall have determined in good faith (after consultation with its outside legal counsel and financial advisors), after considering the terms of such offer by Parent, that the Superior Proposal giving rise to such Section 6.03 Notice continues to be a Superior Proposal, and (E) in the case of clause (y) above, the Company terminates this Agreement in accordance with Section 10.01(d)(i), or (ii) in response to any event, fact, circumstance, development or occurrence that is material to the Company and its Subsidiaries, taken as a whole, that was not known to, or reasonably foreseeable by, the Company Board as of the date of this Agreement, which event, fact, circumstance, development or occurrence becomes known to the Company Board prior to obtaining the Company Stockholder Approval and does not involve or relate to an Acquisition Proposal, effect an Adverse Recommendation Change if (A) the Board determines in good faith, after consultation with outside legal counsel, that the failure to effect such Adverse Recommendation Change would be reasonably likely to be inconsistent with its fiduciary duties under Applicable Law, (B) the Company has previously delivered to Parent a Section 6.03 Notice that it intends to take such action, and (C) if Parent shall have delivered to the Company a written offer capable of being accepted by the Company to alter the terms or conditions of this Agreement during the Notice Period, the Board shall have determined in good faith, after consultation with outside legal counsel and after considering the terms of such offer by Parent, that the failure to effect such Adverse Recommendation Change would be reasonably likely to be inconsistent with its fiduciary duties under Applicable Law. If any Superior Proposal that is the subject of clause (i) of this Section 6.03(f) is revised, including any revision to price, then the Company shall deliver to Parent a new Section 6.03 Notice and again comply with the requirements of clause (i) of this Section 6.03(f) with respect to such revised Superior Proposal, on each occasion on which a revised Superior Proposal is submitted, provided, that in connection with each new Section 6.03 Notice contemplated by this sentence, each reference to a four (4) Business Day period in the preceding sentence shall be deemed to be a reference to three (3) Business Day notice period (it being understood and agreed that in no event shall such additional three (3) Business Day notice period be deemed to shorten the initial four (4) Business Day notice period). If requested by Parent, the Company will, and will cause its Subsidiaries and the Siebel Representatives to, cease immediately during the Notice Period, engage in good faith negotiations with Parent and cause its Representatives regarding any adjustments in the terms and conditions of this Agreement proposed by Parent. For the avoidance of doubt, all information provided to Parent pursuant to this Section 6.03 will be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party with respect to any Acquisition Proposal and shall instruct any such Third Party (or its agents or advisors) in possession of confidential information about Siebel that was furnished by or on behalf of Siebel with respect to any Acquisition Proposal within the six months prior subject to the date hereof to return or destroy all such informationterms of the Confidentiality Agreement.
(g) As used in this Agreement:
Appears in 1 contract
No Solicitation; Other Offers. (a) Neither Siebel nor any Subject to Section 6.04(b), the Company agrees that it shall not, and shall cause its Subsidiaries and each of its Subsidiaries shalland their respective directors, nor shall Siebel or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankersnot to, attorneysand shall use its reasonable efforts to cause the agents, consultants, advisors, or other representatives of such Person, including legal counsel, accountants or other agents, representatives or and financial advisors (the collectively, “Siebel Company Representatives”) not to, directly or indirectly, (i) solicit, initiateinduce, knowingly initiate or otherwise facilitate the making or knowingly encourage the submission of any Acquisition Proposal, (ii) (A) enter into or participate in any discussions with, (B) enter into or participate in any negotiations with, (C) furnish any non-public confidential information relating to Siebel the Company or any of its Subsidiaries to to, or afford access to the business(D) knowingly assist, properties, assets, books participate in or records of Siebel or facilitate any of its Subsidiaries to any effort by a Third Party that has made, or has informed Siebel that it is seeking to make, or has made, an Acquisition Proposal, or (iii) grant any Third Party waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel or any of its Subsidiaries or amend or terminate the Siebel Rights Plan or redeem the Siebel Rights or (iv) enter into any agreement (except for confidentiality agreements, referred to in Section 6.04(b)) with any Third Party with respect to an Acquisition Proposal made by such Third Party, or any other agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Mergers or any of the other transactions contemplated by this AgreementProposal.
(b) Notwithstanding anything to the contrary contained in this Agreement, Siebel (through one or more of the Siebel Representatives) or its Board of Directors may, At any time prior to the Siebel Stockholder Approvaltime its shareholders shall have approved this Agreement and the Merger at the Company Shareholder Meeting, if the Company is not otherwise in breach of Section 6.03 hereof and of this Section 6.04, the Company may:
(i) if it receives a bona fide, unsolicited proposal from a Third Party regarding an Acquisition Proposal, engage in negotiations or discussions the activities specified in Subsection 6.04(a)(ii)(A), (B) and (D) with any respect to such Third Party (or with the representatives of any Third Party) that has made an Acquisition Proposal not solicited in violation of Section 6.03(a) if and such Acquisition Proposal constitutes or could if the Company’s Board of Directors, after consultation with its financial advisor and outside legal counsel, has concluded in good faith that pursuing such Acquisition Proposal is reasonably be expected likely to lead to a Superior Proposal (and that such Third Party, a “Qualified Third Party”), (ii) furnish to such Qualified Third Party or its representatives non-public information relating to Siebel or any of its Subsidiaries pursuant to an executed confidentiality agreement containing customary nondisclosure provisions (which need not include “standstill ” or similar provisions) (and a copy of which shall be promptly (in all events within 24 hours) provided activities are required for informational purposes only to Oracle), (iii) grant a waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel or any of its Subsidiaries, (iv) amend or terminate the Siebel Rights Plan or redeem the Siebel Rights, (v) withdraw the Siebel Board Recommendation or modify the Siebel Board Recommendation in a manner adverse to Oracle (any such action, a “Change in Recommendation”), (vi) terminate this Agreement pursuant to and subject to the terms of Section 9.01(d) and/or (vii) take any action that any court of competent jurisdiction orders Siebel, one or more of the Siebel Representatives or the Company’s Board of Directors of Siebel to take, but in each case referred to in the foregoing clauses (iii), (iv) and (v) only if the Board of Directors of Siebel determines in good faith by a majority vote, after consultation comply with its outside legal counsel, that failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Law. Nothing ;
(ii) in the event that the conditions set forth in clause (b)(i) above are satisfied, further engage in the activities specified in Subsection 6.04(a)(ii)(C) with respect to such Third Party if the Company has received from such Third Party an executed confidentiality agreement with terms no less favorable to the Company than those contained herein shall prevent in the Confidentiality Agreement dated as of July 19, 2005 between the Company and Parent (the “Confidentiality Agreement”); and
(iii) enter into a written agreement with respect to a bona fide, unsolicited Acquisition Proposal that is a Superior Proposal if the Company terminates this Agreement pursuant to Section 10.01(d)(i) hereof and complies with its obligations under Section 11.04(b) hereof, the Company has given Parent three (3) Business Days’ prior notice of such termination, the Company’s Board of Directors of Siebel from complying with Rule 14e-2(a)has determined that such Acquisition Proposal is a Superior Proposal, Rule 14d-9 after taking into account any proposed changes to this Agreement (if any) proposed by Parent or Merger Subsidiary during such three (3) Business Day period, and Item 1012(a) of Regulation M-A under the 1934 Act with regard to an Acquisition Proposal; provided that the Company’s Board of Directors of Siebel shall not recommend that Siebel’s stockholders tender shares of capital stock in connection with any tender or exchange offer unless such Board of Directors shall have determined in good faith by a majority voteDirectors, after consultation with its outside legal counsel, has concluded in good faith that failure such activities are required for the Company’s Board of Directors to make such recommendation would be reasonably likely to result in a breach of comply with its fiduciary duties under applicable Law.
(c) The Board of Directors of Siebel shall not take any of the actions referred to in clauses (i) through (vii) of the preceding subsection unless Siebel shall have delivered to Oracle a prior written notice advising Oracle that it intends to take such action. In addition, Siebel Company shall notify Oracle Parent promptly (but in no event later than 24 hours) after an officer or director first obtains Knowledge of the receipt by Siebel (or any of the Siebel Representatives) Company of any Acquisition Proposal, any inquiry that would reasonably be expected to lead to an Acquisition Proposal, or any request for confidential information relating to Siebel or any of its Subsidiaries or for access to the business, properties, assets, books or records of Siebel or any of its Subsidiaries by any Third Party that has informed Siebel that it is considering making, or has made, an Acquisition Proposal. Siebel The Company shall provide such notice orally and in writing writing. Such notice shall set forth in reasonable detail the substance and shall identify material terms of such Acquisition Proposal (including the Third Party makingidentity of the Person making such Acquisition Proposal). The Company will (i) keep Parent reasonably apprised of any related material developments, discussions and negotiations (including any material changes or modifications to the material terms and conditions ofof the Acquisition Proposal) on a reasonably current basis and (ii) provide to Parent, as soon as reasonably practicable, a copy of the form of any merger agreement or acquisition agreement, as the case may be, in connection with any such Acquisition Proposal, inquiry or request. Siebel shall promptly provide Oracle with any non-public information concerning Siebel’s businessor, present or future performance, financial condition or results of operations, provided to any Qualified Third Party after the date of this Agreement in connection with an extent the Company is prohibited by the Person making such Acquisition Proposal made by such Third Party that was not previously provided to Oracle. Siebel shall keep Oracle promptly and reasonably informedfrom doing so, on a reasonably current basis, written summaries of the status and material details of any such Acquisition Proposal, inquiry or requestterms thereof. Siebel The Company shall, and shall cause its Subsidiaries and the Siebel Company Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to the date hereof with respect to any Acquisition Proposal and shall instruct use its reasonable efforts to enforce confidentiality agreements with Third Parties, including causing any such Third Party (or its agents or advisors) in possession of confidential information about Siebel the Company that was furnished by or on behalf of Siebel with respect to any Acquisition Proposal within the six months prior to the date hereof Company to return or destroy all such information. A “Superior Proposal” is a bona fide, unsolicited Acquisition Proposal to acquire all of the outstanding shares of Common Stock (whether by merger, tender offer or otherwise) or all or substantially all of the consolidated assets of the Company and its Subsidiaries, in each case that the Company’s Board of Directors determines in good faith after consultation with its financial advisor and outside legal counsel, and taking into account all the terms and conditions of the Acquisition Proposal, including any break-up fees or similar devices, expense reimbursement provisions and conditions to consummation (i) is more favorable and provides greater value to the Company’s shareholders than this Agreement and the Merger and (ii) is reasonably capable of being, and is reasonably likely to be, consummated.
Appears in 1 contract
Samples: Merger Agreement (Liberty Corp)
No Solicitation; Other Offers. (a) Neither Siebel the Company nor any of its Subsidiaries shall, nor shall Siebel the Company or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants accountants, consultants or other agents, representatives agents or advisors (the “Siebel Representatives”) to, directly or indirectly, (i) solicit, initiate, knowingly initiate or take any action to facilitate or knowingly encourage the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any non-public information relating to Siebel the Company or any of its Subsidiaries to or afford access to the business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries to to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that has made, or has informed Siebel that it is seeking to make, or has made, an Acquisition Proposal, (iii) grant any Third Party waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel the Company or any of its Subsidiaries or amend or terminate the Siebel Rights Plan or redeem the Siebel Rights or (iv) enter into any agreement (except for confidentiality agreements, referred to in Section 6.04(b)) with any Third Party with respect to an Acquisition Proposal made by such Third Party, or any other agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Mergers or any of the other transactions contemplated by this AgreementProposal.
(b) Notwithstanding anything to the contrary contained in this Agreementforegoing, Siebel (through one or more of the Siebel Representatives) or its Board of Directors mayof the Company, prior to the Siebel Stockholder Approvaldirectly or indirectly through advisors, agents or other intermediaries, may (i) engage in negotiations or discussions with any Third Party (or that, subject to the Company’s compliance with the representatives of any Third Party) that Section 7.3(a), has made an unsolicited Acquisition Proposal not solicited in violation that the Board of Section 6.03(a) if such Acquisition Proposal constitutes or could Directors of the Company reasonably be expected to believes will lead to a Superior Proposal (such Third Party, a “Qualified Third Party”)Proposal, (ii) furnish to such Qualified Third Party or its representatives non-public nonpublic information relating to Siebel the Company or any of its Subsidiaries pursuant to an executed a confidentiality agreement containing customary nondisclosure provisions (which need not include “standstill ” or similar provisions) (and a copy of which shall be promptly (in all events within 24 hours) provided for informational purposes only to Oracle), Parent) with terms no less favorable to the Company than those contained in the Confidentiality Agreement and/or (iii) grant a waiver or release under any standstill or similar agreement with respect following receipt of such Acquisition Proposal, fail to any class of equity securities of Siebel or any of its Subsidiariesmake, (iv) amend or terminate the Siebel Rights Plan or redeem the Siebel Rightswithdraw, (v) withdraw the Siebel Board Recommendation or modify the Siebel Board Recommendation in a manner adverse to Oracle (any such action, a “Change Parent its recommendation to its stockholders referred to in Recommendation”), (vi) terminate this Agreement pursuant to and subject to the terms of Section 9.01(d) and/or (vii) take any action that any court of competent jurisdiction orders Siebel, one or more of the Siebel Representatives or the Board of Directors of Siebel to take, 7.2 hereof; but in each case referred to in the foregoing clauses (i) through (iii), (iv) and (v) only if the Board of Directors of Siebel the Company determines in good faith by a majority vote, after consultation with its outside legal counselcounsel to the Company, that failure to take taking such action would be reasonably likely is in the best interests of the Company and its stockholders and that such action is necessary to result in a breach of comply with its fiduciary duties under applicable Law. Nothing contained herein shall prevent the Board of Directors of Siebel from complying with Rule 14e-2(a), Rule 14d-9 and Item 1012(a) of Regulation M-A under the 1934 Act with regard to an Acquisition Proposal; provided that the Board of Directors of Siebel shall not recommend that Siebel’s stockholders tender shares of capital stock in connection with any tender or exchange offer unless such Board of Directors shall have determined in good faith by a majority vote, after consultation with its outside legal counsel, that failure to make such recommendation would be reasonably likely to result in a breach of its fiduciary duties under applicable Maryland Law.
(c) The Board of Directors of Siebel the Company shall not take any of the actions referred to in clauses (i) through (viiiii) of the preceding subsection unless Siebel the Company shall have delivered to Oracle Parent a prior written notice advising Oracle Parent that it intends to take such action, and the Company shall continue to advise Parent after taking such action. In addition, Siebel the Company shall notify Oracle Parent promptly (but in no event later than 24 hours) after an officer or director first obtains Knowledge of the receipt by Siebel the Company (or any of the Siebel Representativesits advisors) of any Acquisition Proposal, any inquiry indication that would reasonably be expected to lead to a Third Party is considering making an Acquisition Proposal, Proposal or of any request for confidential information relating to Siebel the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries by any Third Party that has informed Siebel that it is may be considering making, or has made, an Acquisition Proposal. Siebel The Company shall provide such notice orally and in writing and shall identify the Third Party making, and the material terms and conditions of, any such Acquisition Proposal, inquiry indication or request. Siebel shall promptly provide Oracle with any non-public information concerning Siebel’s business, present or future performance, financial condition or results of operations, provided to any Qualified Third Party after the date of this Agreement in connection with an Acquisition Proposal made by such Third Party that was not previously provided to Oracle. Siebel The Company shall keep Oracle promptly and reasonably Parent fully informed, on a reasonably current basis, of the status and material details of any such Acquisition Proposal, inquiry indication or request. Siebel The Company shall, and shall cause its Subsidiaries and the Siebel Representatives advisors, employees and other agents of the Company and any of its Subsidiaries to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to the date hereof with respect to any Acquisition Proposal and shall instruct use its reasonable best efforts to cause any such Third Party (or its agents or advisors) in possession of confidential information about Siebel the Company that was furnished by or on behalf of Siebel with respect to any Acquisition Proposal within the six months prior to the date hereof Company to return or destroy all such information.
Appears in 1 contract
Samples: Merger Agreement (Cn Bancorp Inc)
No Solicitation; Other Offers. (a) Neither Siebel the Company nor any of its Subsidiaries shall, nor shall Siebel the Company or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants accountants, consultants or other agents, representatives agents or advisors (the “Siebel Representatives”) to, directly or indirectly, (i) solicit, initiate, knowingly facilitate initiate or knowingly encourage the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any non-public information relating to Siebel the Company or any of its Subsidiaries to or afford access to the business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries to to, otherwise cooperate in any way with, or knowingly assist, knowingly participate in, or knowingly encourage any effort by any Third Party that has made, or has informed Siebel that it is seeking to make, or has made, an Acquisition Proposal, (iii) grant any Third Party waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel the Company or any of its Subsidiaries or amend or terminate the Siebel Rights Plan or redeem the Siebel Rights or (iv) enter into any agreement (except for confidentiality agreements, referred to in Section 6.04(b)) with any Third Party with respect to an Acquisition Proposal made by such Third Party, or any other agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Mergers or any of the other transactions contemplated by this AgreementProposal.
(b) Notwithstanding anything to the contrary contained in this Agreementforegoing, Siebel (through one or more of the Siebel Representatives) or its Board of Directors mayDirectors, prior to the Siebel Stockholder Approvaldirectly or indirectly through advisors, agents or other intermediaries, may (i) engage in negotiations or discussions with any Third Party (or that, subject to the Company's compliance with the representatives of any Third Party) that Section 7.04(a), has made an a bona fide Acquisition Proposal not solicited in violation that the Board of Section 6.03(a) if such Acquisition Proposal constitutes or could Directors reasonably be expected to believes will lead to a Superior Proposal (such Third Party, a “Qualified Third Party”)Proposal, (ii) furnish to such Qualified Third Party or its representatives non-public nonpublic information relating to Siebel the Company or any of its Subsidiaries pursuant to an executed a confidentiality agreement containing customary nondisclosure provisions with terms no less favorable to the Company than those contained in the Confidentiality Agreement (which need not include “standstill ” or similar provisions) (and a copy of which shall be promptly (in all events within 24 hours) provided for informational purposes only to OracleParent), (iii) grant a waiver or release under any standstill or similar agreement with respect following receipt of such Acquisition Proposal, fail to any class of equity securities of Siebel or any of its Subsidiariesmake, (iv) amend or terminate the Siebel Rights Plan or redeem the Siebel Rightswithdraw, (v) withdraw the Siebel Board Recommendation or modify the Siebel Board Recommendation in a manner adverse to Oracle (any such action, a “Change Parent its recommendation to its stockholders referred to in Recommendation”), (vi) terminate this Agreement pursuant to and subject to the terms of Section 9.01(d) Sections 2.02 and/or 7.02 hereof and/or (viiiv) take any non-appealable, final action that any court of competent jurisdiction orders Siebel, one or more of the Siebel Representatives or the Board of Directors of Siebel Company to take, but in each case referred to in the foregoing clauses (i) through (iii), (iv) and (v) only if the Board of Directors of Siebel determines in good faith by a majority vote, after consultation with its Tannenbaum, Dubin and Robinson, LLP, outside legal counselcounsxx xx xxx Coxxxxx, and Xxxxxxxew International Limited, financial advisor to the Company, that failure to take such action would be reasonably likely to result in a breach of is consistent with its fiduciary duties under applicable Lawlaw. Nothing contained herein shall prevent the Board of Directors of Siebel from complying with Rule 14e-2(a), Rule 14d-9 and Item 1012(a) of Regulation M-A under the 1934 Act with regard to an Acquisition Proposal; provided that the Board of Directors of Siebel shall not recommend that Siebel’s stockholders tender shares of capital stock in connection with any tender or exchange offer unless such Board of Directors shall have determined in good faith by a majority vote, after consultation with its outside legal counsel, that failure to make such recommendation would be reasonably likely to result in a breach of its fiduciary duties under applicable Law.
(c) The Board of Directors of Siebel shall not take any of the actions referred to in clauses (i) through (viiiii) of the preceding subsection unless Siebel the Company shall have delivered to Oracle Parent a prior written notice advising Oracle Parent that it intends to take such action, and the Company shall continue to advise Parent after taking such action. In addition, Siebel the Company shall notify Oracle Parent promptly (but in no event later than 24 hours) after an officer or director first obtains Knowledge of the receipt by Siebel the Company (or any of the Siebel Representativesits advisors) of any Acquisition Proposal, any inquiry indication that would reasonably be expected to lead to any Third Party is considering making an Acquisition Proposal, Proposal or any request for confidential information relating to Siebel the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries by any Third Party that has informed Siebel that it is may be considering making, or has made, an Acquisition Proposal. Siebel The Company shall provide such notice orally and in writing and shall identify the Third Party making, and the material terms and conditions of, any such Acquisition Proposal, inquiry indication or request. Siebel shall promptly provide Oracle with any non-public information concerning Siebel’s business, present or future performance, financial condition or results of operations, provided to any Qualified Third Party after the date of this Agreement in connection with an Acquisition Proposal made by such Third Party that was not previously provided to Oracle. Siebel The Company shall keep Oracle promptly and reasonably Parent fully informed, on a reasonably current basis, of the status and material details of any such Acquisition Proposal, inquiry indication or request. Siebel The Company shall, and shall cause its Subsidiaries and the Siebel Representatives advisors, employees and other agents of the Company and any of its Subsidiaries to, cease immediately and cause to be terminated any and all existing activities, discussions or and negotiations, if any, with any Third Party conducted prior to the date hereof with respect to any Acquisition Proposal and shall instruct use its reasonable best efforts to cause any such Third Party (or its agents or advisors) in possession of confidential information about Siebel the Company that was furnished by or on behalf of Siebel with respect to any Acquisition Proposal within the six months prior to the date hereof Company to return or destroy all such information.
Appears in 1 contract
Samples: Merger Agreement (Industri Matematik International Corp)
No Solicitation; Other Offers. (a) Neither Siebel the Company nor any of its Subsidiaries shall, nor shall Siebel the Company or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants accountants, consultants or other agents, representatives agents or advisors (the “Siebel Representatives”) to, directly or indirectly, :
(i) solicit, initiateinitiate or knowingly take any action to knowingly induce, knowingly facilitate or knowingly encourage the submission or announcement of an Acquisition Proposal or any inquiry, indication of interest, proposal or offer that would reasonably be expected to lead to an Acquisition Proposal, Proposal (including by way of furnishing or providing access to non-public information to a Third Party);
(ii) enter into or participate in any discussions or negotiations withwith any Third Party with respect to an Acquisition Proposal or any inquiry, indication of interest, proposal or offer that would reasonably be expected to lead to an Acquisition Proposal;
(iii) furnish any non-public information relating to Siebel the Company or any of its Subsidiaries to or afford access to the business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries to or otherwise knowingly cooperate in any Third Party that has made, or has informed Siebel that it is seeking to make, an Acquisition Proposal, (iii) grant any Third Party waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel or any of its Subsidiaries or amend or terminate the Siebel Rights Plan or redeem the Siebel Rights or (iv) enter into any agreement (except for confidentiality agreements, referred to in Section 6.04(b)) way with any Third Party with respect to an Acquisition Proposal made by such Third Party, or any other agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Mergers or any of the other transactions contemplated by this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, Siebel (through one or more of the Siebel Representatives) or its Board of Directors may, prior to the Siebel Stockholder Approval, (i) engage in negotiations or discussions with any Third Party (or with the representatives of any Third Party) that has made an Acquisition Proposal not solicited in violation of Section 6.03(a) if such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal (such Third Party, a “Qualified Third Party”), (ii) furnish to such Qualified Third Party or its representatives non-public information relating to Siebel or any inquiry, indication of its Subsidiaries pursuant to an executed confidentiality agreement containing customary nondisclosure provisions (which need not include “standstill ” interest, proposal or similar provisions) (and a copy of which shall be promptly (in all events within 24 hours) provided for informational purposes only to Oracle), (iii) grant a waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel or any of its Subsidiaries, (iv) amend or terminate the Siebel Rights Plan or redeem the Siebel Rights, (v) withdraw the Siebel Board Recommendation or modify the Siebel Board Recommendation in a manner adverse to Oracle (any such action, a “Change in Recommendation”), (vi) terminate this Agreement pursuant to and subject to the terms of Section 9.01(d) and/or (vii) take any action that any court of competent jurisdiction orders Siebel, one or more of the Siebel Representatives or the Board of Directors of Siebel to take, but in each case referred to in the foregoing clauses (iii), (iv) and (v) only if the Board of Directors of Siebel determines in good faith by a majority vote, after consultation with its outside legal counsel, that failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Law. Nothing contained herein shall prevent the Board of Directors of Siebel from complying with Rule 14e-2(a), Rule 14d-9 and Item 1012(a) of Regulation M-A under the 1934 Act with regard to an Acquisition Proposal; provided that the Board of Directors of Siebel shall not recommend that Siebel’s stockholders tender shares of capital stock in connection with any tender or exchange offer unless such Board of Directors shall have determined in good faith by a majority vote, after consultation with its outside legal counsel, that failure to make such recommendation would be reasonably likely to result in a breach of its fiduciary duties under applicable Law.
(c) The Board of Directors of Siebel shall not take any of the actions referred to in clauses (i) through (vii) of the preceding subsection unless Siebel shall have delivered to Oracle a prior written notice advising Oracle that it intends to take such action. In addition, Siebel shall notify Oracle promptly (but in no event later than 24 hours) after an officer or director first obtains Knowledge of the receipt by Siebel (or any of the Siebel Representatives) of any Acquisition Proposal, any inquiry that would reasonably be expected to lead to an Acquisition Proposal; or
(iv) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument relating to, or that is intended to or would be reasonably likely to lead to, an Acquisition Proposal, or requiring the Company to abandon, terminate, materially delay or fail to consummate, or that would otherwise materially impede, interfere with or be inconsistent with, the transactions contemplated by this Agreement (an “Alternative Acquisition Agreement”).
(b) Notwithstanding Section 5.03(a), at any time prior to the Closing Date, the Company, directly or indirectly through its Representatives, may engage in negotiations or discussions with, or furnish non-public information to, any Third Party and its Representatives that has made a bona fide written Acquisition Proposal that is submitted after the date of this Agreement but prior to the Closing Date to the Boards by such Third Party (and not withdrawn) if:
(i) the submission of such Acquisition Proposal shall not have resulted from the breach by the Company or any Representative of any of the Company or any of its Subsidiaries of the provisions set forth in Section 5.03(a);
(ii) the Boards reasonably conclude in good faith, after consultation with their outside legal counsel and financial advisor of nationally recognized reputation, that such bona fide written Acquisition Proposal constitutes or would reasonably be expected to lead to a Superior Proposal;
(iii) at least 24 hours prior to furnishing any such information to, or entering into discussions with, such Third Party (or its Representatives), Parent receives written notice from the Company of the identity of such Third Party and of the Company’s intention to furnish information to, or enter into discussions with, such Third Party, and the Company receives from such Person an executed confidentiality agreement in a customary form that is no less favorable to the Company (including standstill provisions) than the Confidentiality Agreement and does not contain any provision calling for an exclusive right to negotiate with the Company (an “Acceptable Confidentiality Agreement”) (which the Company may negotiate with the Third Party during the 24 hour notice period and enter into during such period or thereafter);
(iv) the Company provides or makes available all such information to Parent (to the extent that such information has not been previously provided or made available to Parent) prior to or substantially concurrently with the time it is provided or made available to such Third Party); and
(v) the Boards determine in good faith, after consultation with outside legal counsel, that the failure to take such action could be inconsistent with their fiduciary duties under Applicable Law. In addition, nothing contained herein shall prevent the Company or the Boards from (i) taking and disclosing to the Company’s shareholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the 1934 Act (or any similar communication to shareholders in connection with the making or amendment of a tender offer or exchange offer) or from making any legally required disclosure to shareholders with regard to the transactions contemplated by this Agreement or an Acquisition Proposal, (ii) issuing a “stop, look and listen” disclosure or similar communication of the type contemplated by Rule 14d-9(f) under the 1934 Act or (iii) contacting and engaging in discussions with any person or group and their respective Representatives who has made an Acquisition Proposal that was not solicited in breach of Section 5.03(a) solely for the purpose of clarifying such Acquisition Proposal and the terms thereof (provided that, in the cases of both clauses (i) and (ii) above, any such disclosure or communication does not contain an Adverse Recommendation Change unless permitted by Section 5.03(e) or Section 5.03(f)).
(c) In addition to the other obligations of the Company set forth in Section 5.03, the Company shall notify Parent promptly (but in no event later than two Business Days) orally and in writing after receipt by the Company (or any of its Representatives) of any Acquisition Proposal or any request for confidential non-public information relating to Siebel the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries by any Third Party that has informed Siebel notified the Company that it is may be considering making, or has made, an Acquisition Proposal. Siebel shall provide Each such notice orally shall include (i) the identity of the Third Party making or submitting such Acquisition Proposal or request, and (ii) a copy of all written materials provided by such Third Party in connection with, and the material terms of, such Acquisition Proposal. After receipt of the Acquisition Proposal or request, the Company shall continue promptly (and in any event within 24 hours of any material change or development with respect to such Acquisition Proposal) to keep Parent reasonably informed orally or in writing of the status, terms and pertinent details of any such Acquisition Proposal or request (including by providing prompt notice of all material amendments or proposed material amendments thereto).
(d) Except as expressly permitted under Section 5.03(e) or Section 5.03(f), none of the Company, the Boards or any committee thereof shall (i)(A) withhold, fail to include in (or remove from) the Schedule 14D-9 or the EGM Materials, withdraw, qualify or modify (or resolve, determine or publicly propose to withhold, fail to include in (or remove from) the Schedule 14D-9 or the EGM Materials, withdraw, qualify or modify) the Company Recommendation or (B) adopt, approve, recommend, submit to shareholders or declare advisable (or resolve, determine or publicly propose to adopt, approve, recommend, submit to shareholders or declare advisable) any Acquisition Proposal (any action described in this clause (i) being referred to as an “Adverse Recommendation Change”) or (ii) adopt, approve, recommend, submit to shareholders or declare advisable (or resolve, determine or publicly propose to adopt, approve, recommend, submit to shareholders or declare advisable), or allow the Company or any of its Subsidiaries to execute or enter into, any Alternative Acquisition Agreement.
(e) Notwithstanding anything in this Agreement to the contrary, if the Company receives an Acquisition Proposal, other than as a result of breaching or violating Section 5.03(a), that the Boards conclude in good faith, after consultation with their outside legal counsel and financial advisor of nationally recognized reputation, constitutes a Superior Proposal, the Boards may, at any time prior to the Closing Date, if they determine in good faith, after consultation with their outside legal counsel, that the failure to take such actions contemplated by clauses (x) and/or (y) below would likely be inconsistent with the Boards’ fiduciary duties under Applicable Law, (x) effect an Adverse Recommendation Change with respect to such Superior Proposal and/or (y) terminate this Agreement pursuant to Section 8.01(d)(i) and simultaneously enter into an Alternative Acquisition Agreement with respect to such Superior Proposal; provided, however, that the Company shall not terminate this Agreement pursuant to the foregoing clause (y) or Section 8.01(d)(i), and any purported termination pursuant to the foregoing clause (y) or Section 8.01(d)(i) shall be void and of no force or effect, unless in advance of or concurrently with such termination the Company pays the Termination Fee and otherwise complies with the provisions of Section 8.01(d)(i) and Section 9.04(a)(i); and provided, further, that the Boards may not effect an Adverse Recommendation Change pursuant to the foregoing clause (x) or terminate this Agreement pursuant to the foregoing clause (y) or Section 8.01(d)(i) unless: (i) the Company shall have provided prior written notice to Parent, at least five Business Days in advance (the “Superior Proposal Notice Period”), of its intention to effect such an Adverse Recommendation Change (which notice itself shall not constitute an Adverse Recommendation Change) and/or terminate this Agreement to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal, which notice shall identify the Third Party makingor group making such Superior Proposal, and contain the execution draft of the relevant proposed Alternative Acquisition Agreement (which shall include the financial terms of such Superior Proposal) with the Third Party or group making such Superior Proposal and any other material documents with respect to such Superior Proposal (including any with respect to the financing thereof); and (ii) prior to effecting such Adverse Recommendation Change and/or terminating this Agreement to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal, (A) if requested by Parent, the Company shall have, and shall have caused the Company’s Representatives to, during the Superior Proposal Notice Period, negotiate with Parent in good faith to make such adjustments in the terms and conditions of this Agreement so that such Acquisition Proposal ceases to constitute a Superior Proposal, and (B) Parent shall not have, during the Superior Proposal Notice Period, made a written offer that would, after consideration of such offer by the Boards in good faith and after consultation with their outside legal counsel and financial advisor of nationally recognized reputation, result in the Boards determining that such Superior Proposal no longer constitutes a Superior Proposal. In the event of any amendment to the financial terms or any other material revisions to the Superior Proposal after the start of the Superior Proposal Notice Period, the Company shall be required to deliver a new written notice to Parent pursuant to Section 5.03(e)(i) and to comply with the requirements of this Section 5.03(e) with respect to such new written notice (including a new Superior Proposal Notice Period), except the Superior Proposal Notice Period shall be at least three Business Days (rather than the five Business Days contemplated by Section 5.03(e)(i) above).
(f) Notwithstanding anything to the contrary contained in this Agreement, and solely in response to an Intervening Event, the Boards may effect an Adverse Recommendation Change prior to the Closing Date if each of the Boards determines in good faith, after consultation with their outside legal counsel and financial advisor of nationally recognized reputation, that the failure to do so would likely be inconsistent with the directors’ fiduciary duties under Applicable Law; provided, however, that the Boards may not effect such an Adverse Recommendation Change unless: (i) the Company shall have provided prior written notice to Parent, at least five Business Days in advance (the “Intervening Event Notice Period”), of its intention to effect such an Adverse Recommendation Change (which notice itself shall not constitute an Adverse Recommendation Change), which notice shall specify in reasonable detail such Intervening Event; and (ii) prior to effecting such Adverse Recommendation Change, (A) if requested by Parent, the Company shall have, and shall have caused the Company’s Representatives to, during the Intervening Event Notice Period, negotiate with Parent in good faith to make such adjustments in the terms and conditions of this Agreement so that an Adverse Recommendation Change is no longer necessary, and (B) Parent shall not have, during the Intervening Event Notice Period, made a written offer that that, after due consideration of such offer by the Boards in good faith and after consultation with their outside legal counsel and financial advisor of nationally recognized reputation, results in both Boards determining that it would not continue to be likely to be inconsistent with the director’s fiduciary duties under Applicable Law to not effect the Adverse Recommendation Change. In the event of any material changes to the circumstances applicable to the Intervening Event, after the start of the Intervening Event Notice Period, the Company shall be required to deliver a new written notice to Parent pursuant to Section 5.03(f)(i) and to comply with the requirements of this Section 5.03(f) with respect to such new written notice (including a new Intervening Event Notice Period) except the Intervening Event Notice Period shall be at least three Business Days (rather than the five Business Days contemplated by Section 5.03(f)(i) above).
(g) The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than in the event of any amendment to this Agreement and to the extent required by Applicable Law to be disclosed in any Company SEC Documents or otherwise in accordance with the Confidentiality Agreement.
(h) No Adverse Recommendation Change shall change the approval of the Boards for purposes of causing any Anti-Takeover Measure to be applicable to the transactions contemplated by this Agreement or the Tender Agreements.
(i) For purposes of this Agreement, “Superior Proposal” means a bona fide, unsolicited written Acquisition Proposal (that has not been withdrawn and that did not result from a breach of the provisions of Section 5.03(a)) to acquire all of the outstanding Shares or all or substantially all of the consolidated assets of the Company and its Subsidiaries, which (a) is not subject to a financing condition (and if financing is required, such financing is committed, or is reasonably expected to be committed, to the Third Party or “group” (as defined in or under Section 13(d) of the 0000 Xxx) making such Acquisition Proposal), (b) is reasonably likely to be consummated on the terms and conditions contemplated thereby, and (c) the Boards determine in good faith by a majority vote, after considering the advice of a financial advisor of nationally recognized reputation, is on terms more favorable to the Company’s shareholders and other stakeholders than as provided hereunder, in each case taking into account the various legal, financial and regulatory aspects of the proposal, including the financial and financing terms thereof, the likelihood of consummation in a timely manner, and the material terms and conditions of, any such Acquisition Proposal, inquiry or request. Siebel shall promptly provide Oracle with any non-public information concerning Siebel’s business, present or future performance, financial condition or results identity of operations, provided to any Qualified the Third Party after the date of this Agreement in connection with an Acquisition Proposal made by or group making such Third Party that was not previously provided to Oracle. Siebel shall keep Oracle promptly and reasonably informed, on a reasonably current basis, of the status and material details of any such Acquisition Proposal, inquiry or request. Siebel shall, and shall cause its Subsidiaries and the Siebel Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party with respect to any Acquisition Proposal and shall instruct any such Third Party (or its agents or advisors) in possession of confidential information about Siebel that was furnished by or on behalf of Siebel with respect to any Acquisition Proposal within the six months prior to the date hereof to return or destroy all such informationproposal.
Appears in 1 contract
No Solicitation; Other Offers. (a) Neither Siebel nor any Subject to the provisions of its Subsidiaries shallthis Section 6.03, the Company shall not, nor shall Siebel or any of its Subsidiaries the Company authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants accountants, consultants or other agents, representatives agents or advisors (the “Siebel Representatives”) to, directly or indirectly, (i) solicit, initiate, knowingly initiate or take any action to facilitate or knowingly encourage the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations withwith a Third Party relating to any Acquisition Proposal, furnish any non-public information relating to Siebel or any of its Subsidiaries to the Company or afford access to the business, properties, assets, books or records of Siebel the Company to a Third Party in a manner that could reasonably be expected to lead to an Acquisition Proposal or otherwise cooperate in any of its Subsidiaries to way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that has made, or has informed Siebel that it is seeking to make, make an Acquisition Proposal, (iii) grant any Third Party waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel or any of its Subsidiaries or amend or terminate the Siebel Rights Plan or redeem the Siebel Rights Company or (iv) enter into any agreement (except for confidentiality agreements, referred to in Section 6.04(b)) with any Third Party with respect to an Acquisition Proposal made by such Third Party, or any other agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Mergers or any of the other transactions contemplated by this AgreementProposal.
(b) Notwithstanding anything to the contrary contained set forth in this Agreement, Siebel (through one or more of the Siebel Representatives) or its Board of Directors mayof the Company, prior to the Siebel Stockholder Approvaldirectly or indirectly through advisors, agents or other intermediaries, may (i) engage in negotiations or discussions with any Third Party (that, without prior solicitation by or negotiation with the representatives Company after the date of any Third Party) that this Agreement, has made an a bona fide Acquisition Proposal not solicited that the Board of Directors of the Company has in violation of Section 6.03(agood faith concluded (after consultation with its outside legal counsel and its financial advisor) if such Acquisition Proposal constitutes is, or could reasonably be expected to lead to to, a Superior Proposal (and is from a person reasonably capable of consummating such Third Party, a “Qualified Third Party”)Acquisition Proposal, (ii) furnish to such Qualified Third Party or its representatives non-public nonpublic information relating to Siebel or any of its Subsidiaries the Company pursuant to an executed a confidentiality agreement containing customary nondisclosure provisions (which need not include “standstill ” or similar provisions) (and a copy of which shall be promptly (in all events within 24 hours) provided for informational purposes only to OracleParent) at least as restrictive on such other party as that certain Mutual Non-Disclosure Agreement between Affymetrix, Inc. and ParAllele BioScience, Inc. dated September 28, 2004, as amended December 21, 2004 and March 8, 2005 (the “Letter Agreement”), (iii) grant following a waiver or release under any standstill or similar agreement with respect determination by the Board of Directors of the Company that such Acquisition Proposal is a Superior Proposal, fail to any class of equity securities of Siebel or any of its Subsidiariesmake, (iv) amend or terminate the Siebel Rights Plan or redeem the Siebel Rightswithdraw, (v) withdraw the Siebel Board Recommendation or modify the Siebel Board Recommendation in a manner adverse to Oracle Parent its recommendation to its shareholders referred to in Section 6.02 hereof (any such action, a “Change in of Recommendation”), (vi) terminate this Agreement pursuant to and subject to the terms of Section 9.01(d) and/or (viiiv) take any action that any court of competent jurisdiction orders Siebel, one or more of the Siebel Representatives or the Board of Directors of Siebel Company to take, but in each case referred to in the foregoing clauses (i) through (iii), (iv) and (v) only if the Board of Directors of Siebel the Company determines in good faith by a majority votefaith, after consultation with its outside legal counsel, that the failure to take such action would be reasonably likely to result in a breach of inconsistent with its fiduciary duties under applicable Law. Nothing contained herein shall prevent the Board of Directors of Siebel from complying with Rule 14e-2(a), Rule 14d-9 and Item 1012(a) of Regulation M-A under the 1934 Act with regard to an Acquisition Proposal; provided that the Board of Directors of Siebel shall not recommend that Siebel’s stockholders tender shares of capital stock in connection with any tender or exchange offer unless such Board of Directors shall have determined in good faith by a majority vote, after consultation with its outside legal counsel, that failure to make such recommendation would be reasonably likely to result in a breach of its fiduciary duties under applicable Lawlaw.
(c) The Board of Directors of Siebel the Company shall not take any of the actions referred to in clauses (i) through (viiiv) of the preceding subsection unless Siebel the Company shall have delivered to Oracle Parent a prior written notice advising Oracle Parent that it intends to take such action, and the Company shall continue to advise Parent after taking such action. In addition, Siebel the Company shall notify Oracle Parent promptly (but in no event later than 24 hours) after an officer or director first obtains Knowledge of the receipt by Siebel the Company (or any of the Siebel Representativesits advisors) of any Acquisition Proposal, any inquiry indication that would reasonably be expected to lead to a Third Party is considering making an Acquisition Proposal, Proposal or of any request for confidential information relating to Siebel or any of its Subsidiaries the Company or for access to the business, properties, assets, books or records of Siebel or any of its Subsidiaries the Company by any Third Party that has informed Siebel that it is may be considering making, or has made, an Acquisition Proposal. Siebel The Company shall provide such notice orally and in writing and shall identify the Third Party making, and the material terms and conditions of, any such Acquisition Proposal, inquiry indication or request. Siebel shall promptly provide Oracle with any non-public information concerning Siebel’s business, present or future performance, financial condition or results of operations, provided to any Qualified Third Party after the date of this Agreement in connection with an Acquisition Proposal made by such Third Party that was not previously provided to Oracle. Siebel The Company shall keep Oracle promptly and Parent reasonably informed, on a reasonably current basis, of the status and material details of any such Acquisition Proposal, inquiry indication or request. Siebel The Company shall, and shall cause its Subsidiaries advisors, employees and the Siebel Representatives other agents to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to the date hereof with respect to any Acquisition Proposal and shall instruct use commercially reasonable efforts to cause any such Third Party (or its agents or advisors) in possession of confidential information about Siebel the Company that was furnished by or on behalf of Siebel with respect to any Acquisition Proposal within the six months prior to the date hereof Company to return or destroy all such information.
(d) Notwithstanding anything to the contrary contained in this Agreement, unless this Agreement shall be terminated in accordance with its terms, (i) the Company shall be obligated to call, give notice of, convene and hold the Company Shareholders’ Meeting regardless of the commencement, disclosure, announcement or submission to it of any Acquisition Proposal or of any Change of Recommendation, and (ii) the Company shall not submit to the vote of its shareholders any Acquisition Proposal, or propose to do so.
Appears in 1 contract
Samples: Merger Agreement (Affymetrix Inc)
No Solicitation; Other Offers. (a) Neither Siebel Subject to Section 6.03(b), neither the Company nor any of its Subsidiaries shall, nor shall Siebel the Company or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants accountants, consultants or other agents, representatives agents or advisors (the “Siebel Representatives”) to, directly or indirectly, (i) solicit, initiate, knowingly initiate or take any action to facilitate or knowingly encourage the submission of any Acquisition Proposal, (ii) enter into into, continue or participate in any discussions or negotiations with, furnish any non-public nonpublic information relating to Siebel the Company or any of its Subsidiaries to to, or afford access to the businessassist, propertiesfacilitate, assetsparticipate in or encourage any effort by, books or records of Siebel or any of its Subsidiaries to any Third Party that has made, or has informed Siebel that it is seeking to make, has indicated an interest or intention in making, or has made, an Acquisition Proposal, (iii) grant any Third Party waiver recommend an Acquisition Proposal or release under any standstill fail to make, withdraw or similar agreement with respect modify in a manner adverse to any class of equity securities of Siebel Parent or Merger Sub the Company Board Recommendation (any of its Subsidiaries or amend or terminate the Siebel Rights Plan or redeem the Siebel Rights foregoing in this clause (iii), an “Adverse Recommendation Change”) or (iv) enter into any (or amend or modify any existing) agreement in principle, letter of intent, term sheet, confidentiality agreement, acquisition agreement or other similar agreement or instrument (except for confidentiality agreements, referred to in Section 6.04(b)whether or not binding) with any Third Party with respect relating to an Acquisition Proposal made by such Third Party, or any other agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Mergers or any of the other transactions contemplated by this AgreementProposal.
(b) Notwithstanding anything the foregoing, but subject to Section 6.03(c) below, the contrary contained in this Agreement, Siebel (through one or more of the Siebel Representatives) or its Board of Directors mayof the Company, directly or indirectly through advisors, agents or other intermediaries, may at any time prior to the Siebel Company Stockholder Approval, Meeting (i) engage in negotiations or discussions with any Third Party that, subject to the Company’s compliance with Section 6.03(a), has made a bona fide Acquisition Proposal that the Board of Directors of the Company, acting in good faith (or after consultation with the representatives of any Third PartyCompany’s outside legal advisor and financial advisor) that has made an Acquisition Proposal not solicited in violation of Section 6.03(a) if such Acquisition Proposal constitutes determined to be, or reasonably believes could reasonably be expected to lead to to, a Superior Proposal (such Third Party, a “Qualified Third Party”), and (ii) thereafter furnish to such Qualified Third Party or its representatives non-public nonpublic information relating to Siebel the Company or any of its Subsidiaries pursuant to an executed appropriate confidentiality agreement containing customary nondisclosure provisions (which need not include “standstill ” or similar provisions) (and a copy of which shall be promptly (in all events within 24 hours) provided for informational purposes only to Oracle), (iii) grant a waiver or release under any standstill or similar agreement with respect to any class following receipt of equity securities of Siebel or any of its Subsidiariessuch Superior Proposal, (iv) amend or terminate the Siebel Rights Plan or redeem the Siebel Rightsmake an Adverse Recommendation Change but, (v) withdraw the Siebel Board Recommendation or modify the Siebel Board Recommendation in a manner adverse to Oracle (any such action, a “Change in Recommendation”), (vi) terminate this Agreement pursuant to and subject to the terms of Section 9.01(d) and/or (vii) take any action that any court of competent jurisdiction orders Siebel, one or more of the Siebel Representatives or the Board of Directors of Siebel to take, but in each case referred to in the foregoing clauses (i) through (iii), (iv) and (v) only if the Board of Directors of Siebel the Company determines in good faith by a majority votevote (exclusive of any members of the Board of Directors that are not independent of the Third Parties making such Superior Proposal), after consultation with its considering advice from outside legal counselcounsel to the Company and the financial advisor to the Company, that the failure to take such action would be reasonably likely to result in a breach of inconsistent with its fiduciary duties under applicable Applicable Law. Nothing contained herein shall prevent the Board of Directors of Siebel from complying with Rule 14e-2(a), Rule 14d-9 and Item 1012(a) of Regulation M-A under the 1934 Act with regard to an Acquisition Proposal; provided that the Board of Directors of Siebel shall not recommend that Siebel’s stockholders tender shares of capital stock in connection with any tender or exchange offer unless such Board of Directors shall have determined in good faith by a majority vote, after consultation with its outside legal counsel, that failure to make such recommendation would be reasonably likely to result in a breach of its fiduciary duties under applicable Law.
(c) The Board of Directors of Siebel shall not take any of the actions referred to in clauses (i) through (vii) of the preceding subsection unless Siebel shall have delivered to Oracle a prior written notice advising Oracle that it intends to take such action. In addition, Siebel shall notify Oracle promptly (but in no event later than 24 hours) after an officer or director first obtains Knowledge of the receipt by Siebel (or any of the Siebel Representatives) of any Acquisition Proposal, any inquiry that would reasonably be expected to lead to an Acquisition Proposal, or any request for confidential information relating to Siebel or any of its Subsidiaries or for access to the business, properties, assets, books or records of Siebel or any of its Subsidiaries by any Third Party that has informed Siebel that it is considering making, or has made, an Acquisition Proposal. Siebel shall provide such notice orally and in writing and shall identify the Third Party making, and the material terms and conditions of, any such Acquisition Proposal, inquiry or request. Siebel shall promptly provide Oracle with any non-public information concerning Siebel’s business, present or future performance, financial condition or results of operations, provided to any Qualified Third Party after the date of this Agreement in connection with an Acquisition Proposal made by such Third Party that was not previously provided to Oracle. Siebel shall keep Oracle promptly and reasonably informed, on a reasonably current basis, of the status and material details of any such Acquisition Proposal, inquiry or request. Siebel Company shall, and shall cause its Subsidiaries and the Siebel Representatives advisors, employees and other agents of the Company and any of its Subsidiaries to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted on or prior to the date hereof with respect to any Acquisition Proposal.
(c) The Board of Directors of the Company shall not take any of the actions referred to in clauses (i), (ii) and (iii) of Section 6.03(b) unless the Company shall have delivered to Parent a prior written notice advising Parent that it intends to take such action, which written notice shall state the material terms and conditions of the applicable Superior Proposal. The parties hereto agree that, in the event any such written notice is delivered pursuant hereto, before the Board of Directors takes any action referred to in clause (iii) of Section 6.03(b), Parent shall be provided with three Business Days from the date of delivery of such notice to make adjustments to the terms and conditions of this Agreement, and the Company shall negotiate in good faith with respect thereto. In addition, the Company shall notify Parent as promptly as reasonably practicable, and use its reasonable best efforts to provide such notice with one Business Day, following receipt by the Company (or any of its advisors) of any Acquisition Proposal and shall instruct or any written request for nonpublic information relating to the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of the Company or any of its Subsidiaries by any Third Party that indicates it may be considering making, or has made, an Acquisition Proposal (including the identity of such Third Party and the material terms and conditions of any such Acquisition Proposal, indication or request). The Company shall keep Parent reasonably informed, on a current basis, of the status and material details of any such Acquisition Proposal, indication or request (and any modification or amendment thereof), including of any meeting of its Board of Directors (or any committee thereof) at which its agents Board of Directors (or advisorssuch committee) in possession of confidential information about Siebel that was furnished by or on behalf of Siebel with respect is reasonably expected to consider any Acquisition Proposal.
(d) Notwithstanding the foregoing, after prior written notice to Parent, the Board of Directors of the Company shall be permitted to take any action necessary to comply with Rule 14d-9 or Rule 14e-2(a) under the 1934 Act with regard to an Acquisition Proposal within the six months prior and to make any disclosure to the date hereof stockholders of the Company if, in the good faith judgment of the Board of Directors of the Company, after considering the advice of outside counsel, failure so to return disclose would be inconsistent with its obligations under Applicable Law; provided, however, that the fact that a disclosure or destroy all other action may be deemed permissible by virtue of this sentence does not in and of itself mean that any such informationdisclosure or other action constitutes an Adverse Recommendation Change.
(e) The Company shall not take any action to exempt any Person from the restrictions on “business combinations” contained in Section 302A.673 of Minnesota Law (or any similar provisions) or otherwise cause such restrictions not to apply unless such actions are taken simultaneously with a termination of this Agreement in accordance with Section 10.01(c)(i) and (ii) or Section 10.01(d).
Appears in 1 contract
Samples: Merger Agreement (Sitel Corp)
No Solicitation; Other Offers. (a) Neither Siebel nor any Subject to Section 7.07(b), BHI agrees that from and after the date of this Agreement, it shall (i) immediately cease and terminate, and cause to be ceased and terminated, all of its and its Representatives’ discussions and negotiations with any other Person (other than GE or its Affiliates) regarding any Alternative Proposal (as hereinafter defined), (ii) promptly request, and cause to be requested that, each Person that has received confidential information in connection with a possible Alternative Proposal within the last twelve (12) months return to BHI or destroy all confidential information heretofore furnished to such Person by or on behalf of BHI and the BHI Subsidiaries shalland (iii) not grant any waiver or release under or knowingly fail to enforce any confidentiality, standstill or similar agreement entered into or amended during the twelve (12) months prior to the date hereof in respect of a proposed Alternative Proposal unless the Board of Directors of BHI concludes in good faith that a failure to take any action described in this clause (iii) would reasonably likely be inconsistent with the directors’ fiduciary obligations to BHI’s stockholders under applicable Law. From and after the date of this Agreement, subject to Section 7.07(b) and Section 9.03, BHI shall not, directly or indirectly, nor shall Siebel or any of its Subsidiaries BHI authorize or permit any BHI Subsidiary or any of its or their respective directors, officers, directorsmembers, employees, investment bankersrepresentatives, agents, attorneys, accountants or consultants, contractors, accountants, financial advisors and other agents, representatives or advisors (the a “Siebel RepresentativesRepresentative”) to, directly or indirectly, (i) solicit, initiate, knowingly facilitate initiate or knowingly encourage or facilitate (including by way of furnishing information), or engage in discussions or negotiations regarding, any inquiry, proposal or offer, or the making, submission or announcement of any Acquisition inquiry, proposal or offer (including any inquiry, proposal or offer to its stockholders) which constitutes or would be reasonably expected to lead to an Alternative Proposal, (ii) except for confidentiality agreements entered into pursuant to the proviso to the first sentence of Section 7.07(b), or a definitive agreement entered into or to be entered into concurrently with a termination of this Agreement by BHI pursuant to Section 9.03, approve or enter into a letter of intent, memorandum of understanding or participate other contract with any Person, other than GE, for, constituting or otherwise relating to an Alternative Proposal, (iii) provide or cause to be provided any information or data relating to BHI or any BHI Subsidiary in connection with, or in response to, any Alternative Proposal by any Person, or (iv) terminate, amend, waive or permit the waiver of any voting restriction contained in the organizational or governing documents of BHI, or take any action contemplated by paragraph (a)(1) of Section 203 of the DGCL. Without limiting the generality of the foregoing, BHI acknowledges and agrees that, in the event any officer, director or financial advisor of BHI takes any action that if taken by BHI would be a breach of this Section 7.07, the taking of such action by such officer, director or financial advisor shall be deemed to constitute a breach of this Section 7.07 by BHI.
(b) Notwithstanding the provisions of Section 7.07(a), BHI and its Representatives shall be entitled, prior to obtaining the BHI Stockholder Approval, to furnish information regarding BHI and any BHI Subsidiary to, or engage in discussions or negotiations with, furnish any Person in response to an unsolicited, bona fide, written third party proposal with respect to an Alternative Proposal that is submitted to BHI by such Person (for so long as such Alternative Proposal has not been withdrawn) if (i) none of BHI, the Representatives of BHI, the BHI Subsidiaries or the Representatives of the BHI Subsidiaries shall have breached the provisions set forth in this Section 7.07 in any material respect with respect to such Person, and (ii) the Board of Directors of BHI shall have determined, in its good faith judgment, after consultation with BHI’s financial advisor and outside legal counsel, that the proposal constitutes or is reasonably likely to lead to a Superior Proposal (as hereinafter defined); provided that BHI may not enter into negotiations or discussions or supply any information in connection with an Alternative Proposal without entering into a confidentiality agreement, which confidentiality agreement may allow such third party to make Alternative Proposals to BHI in connection with the negotiations and discussions permitted by this Section 7.07(b). GE shall be entitled to receive an executed copy of any such confidentiality agreement and notification of the identity of such Person promptly (and in any event within twenty-four (24) hours) after BHI’s entering into such discussions or negotiations or furnishing information to the Person making such Alternative Proposal or its Representatives. BHI shall promptly provide or make available to GE any non-public information relating concerning BHI and any BHI Subsidiary that is provided to Siebel the Person making such Alternative Proposal or its Representatives which was not previously provided or made available to GE. BHI agrees that it shall notify GE promptly (and in any event within forty-eight (48) hours of receipt) if any inquiry, contact or proposal related to an Alternative Proposal is received by, any such information is requested from, or any such discussions or negotiations are sought to be initiated or continued with, BHI, any BHI Subsidiary, any of its Subsidiaries to or afford access to the businessRepresentatives, properties, assets, books or records of Siebel or any Representatives of its Subsidiaries to any Third Party that has madeBHI Subsidiary, and thereafter shall keep GE informed in writing, on a reasonably current basis, of all material developments regarding the status of any such inquiry, contact or has informed Siebel that it is seeking to make, an Acquisition Proposal, (iii) grant proposal and the status of any Third Party waiver such negotiations or release discussions. Nothing contained in this Agreement shall prevent the Board of Directors of BHI from complying with Rule 14e-2 under any standstill or similar agreement with respect to any class of equity securities of Siebel or any of its Subsidiaries or amend or terminate the Siebel Rights Plan or redeem the Siebel Rights or (iv) enter into any agreement (except for confidentiality agreements, referred to in Section 6.04(b)) with any Third Party Exchange Act with respect to an Acquisition Alternative Proposal made or from making any similar disclosure; provided, however, that any disclosure by BHI that relates to an Alternative Proposal shall be deemed to be a Change in Recommendation unless the Board of Directors of BHI reaffirms BHI Board Recommendation in such Third Partydisclosure.
(c) Neither the Board of Directors of BHI nor any committee thereof shall (i) (A) withdraw (or qualify or modify in a manner adverse to GE), or propose to withdraw (or qualify or modify in a manner adverse to GE), the approval, recommendation or declaration of advisability by the Board of Directors of BHI or any such committee thereof of this Agreement, the Merger or any other transaction contemplated by this Agreement, (B) recommend, adopt or approve, or propose publicly to recommend, adopt or approve any Alternative Proposal, (C) fail to include BHI Board Recommendation in the Combined Proxy Statement/Prospectus or (D) resolve, propose or agree to do any of the foregoing (any action described in this clause (i) being referred to as a “Change in Recommendation”) or (ii) (A) recommend, adopt or approve, or propose publicly to recommend, adopt or approve, or allow BHI or any of the BHI Subsidiaries to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, merger agreement, arrangement acquisition agreement, option agreement, joint venture agreement, partnership agreement or understanding requiring it other similar agreement constituting or related to, or that is intended to or could reasonably be expected to lead to, any Alternative Proposal or that would require BHI to abandon, terminate or fail to consummate the Mergers Merger (other than a confidentiality agreement referred to in Section 7.07(b)) (an “Acquisition Agreement”) or (B) resolve, agree or propose to do any of the other transactions contemplated by this Agreement.
(b) foregoing. Notwithstanding anything in this Agreement to the contrary contained in this Agreementcontrary, Siebel (through one or more of if, prior to obtaining the Siebel Representatives) or its BHI Stockholder Approval, the Board of Directors may, prior to the Siebel Stockholder Approval, of BHI determines in good faith (i) engage in negotiations or discussions after consultation with any Third Party (or with the representatives of any Third Partyits outside counsel and financial advisors) that has made an Acquisition Proposal not solicited in violation of Section 6.03(a) if such Acquisition Proposal constitutes or could the failure to do so would reasonably likely be expected inconsistent with its fiduciary duties to lead to a Superior Proposal BHI’s stockholders under applicable Law, it may (such Third Party, a “Qualified Third Party”), (ii) furnish to such Qualified Third Party or its representatives non-public information relating to Siebel or any of its Subsidiaries pursuant to an executed confidentiality agreement containing customary nondisclosure provisions (which need not include “standstill ” or similar provisions) (and a copy of which shall be promptly (in all events within 24 hours) provided for informational purposes only to Oracle), (iii) grant a waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel or any of its Subsidiaries, (iv) amend or terminate the Siebel Rights Plan or redeem the Siebel Rights, (v) withdraw the Siebel Board Recommendation or modify the Siebel Board Recommendation in a manner adverse to Oracle (any such action, a “Change in Recommendation”), (viA) terminate this Agreement pursuant to Section 9.03(b) and subject cause BHI to enter into an Acquisition Agreement with respect to a Superior Proposal or (B) make a Change in Recommendation in connection with a Superior Proposal, but in the terms case of (1) the foregoing clause (A), only if such Superior Proposal has not resulted from a breach of its obligations pursuant to this Section 9.01(d7.07, and (2) and/or the foregoing clauses (viiA) take any action or (B) only if (x) BHI provides written notice to GE (a “Notice of Change in Recommendation”) advising GE that any court of competent jurisdiction orders Siebel, one or more of the Siebel Representatives or the Board of Directors of Siebel BHI intends to taketake such action and specifying the reasons therefor, including the terms and conditions of such Superior Proposal, the identity of the Person making Superior Proposal and copies of all relevant documents relating to such Superior Proposal that BHI has received from the Person or its Representatives that made such proposal and that are the basis of the proposed action by the Board of Directors of BHI, including a copy of the proposed Acquisition Agreement (if any) (it being understood and agreed that any amendment to the financial terms or other material terms of such Superior Proposal shall require a new Notice of Change in Recommendation and compliance with the requirements of this Section 7.07(c)); (y) during a period of four (4) Business Days following GE’s receipt of a Notice of Change in Recommendation (or, in the event of a new Notice of Change in Recommendation as a result of any such amendment, an extension of two (2) additional Business Days), if requested by GE, BHI and its Representatives shall have negotiated with GE and its Representatives in good faith to make such revisions or adjustments proposed by GE to the terms and conditions of this Agreement as would enable BHI to proceed with its recommendation of this Agreement and the Merger and not to make such Change in Recommendation; and (z) if applicable, at the end of such applicable 4- or 2-Business Day period, the Board of Directors of BHI, after considering in good faith any such revisions or adjustments to the terms and conditions of this Agreement that GE, prior to the expiration of such applicable period, shall have offered in writing in a manner that would form a binding contract if accepted by BHI, continues to determine in good faith (after consultation with its outside counsel and financial advisors) that the Alternative Proposal constitutes a Superior Proposal and that failure to make such Change in Recommendation would reasonably likely be inconsistent with its fiduciary duties to BHI’s stockholders under applicable Law.
(d) Other than in connection with an Alternative Proposal, BHI may, at any time prior to, but not after, obtaining the BHI Stockholder Approval, make a Change in each case referred Recommendation in response to an Intervening Event (an “Intervening Event Change in Recommendation”) if the foregoing clauses failure to take such action would likely be inconsistent with the fiduciary duties of the Board of Directors of BHI to BHI’s stockholders under applicable Law, provided, that: (iii)A) GE shall have received written notice from BHI of BHI’s intention to make an Intervening Event Change in Recommendation at least four (4) Business Days prior to the taking of such action by BHI, which notice shall specify the applicable Intervening Event in reasonable detail, (ivB) during such period and prior to making an Intervening Event Change in Recommendation, if requested by GE, BHI and its Representatives shall have negotiated in good faith with GE and its Representatives regarding any revisions or adjustments proposed by GE to the terms and conditions of this Agreement as would enable BHI to proceed with its recommendation of this Agreement and the Merger and not make such Intervening Event Change in Recommendation and (vC) BHI may make an Intervening Event Change in Recommendation only if the Board of Directors of Siebel determines BHI, after considering in good faith any revisions or adjustments to the terms and conditions of this Agreement that GE shall have, prior to the expiration of the 4-Business Day period, offered in writing in a manner that would form a binding contract if accepted by a majority voteBHI, after consultation with its outside legal counsel, continues to determine in good faith that failure to take such action make an Intervening Event Change in Recommendation would likely be reasonably likely to result in a breach of inconsistent with its fiduciary duties to BHI’s stockholders under applicable Law. Nothing contained herein An “Intervening Event” shall prevent mean any fact, circumstance, occurrence, event, development, change or condition or combination thereof that (i) was not known to the Board of Directors of Siebel from complying with Rule 14e-2(a)BHI as of the date of this Agreement (or if known, Rule 14d-9 the consequences or magnitude of which were not known or reasonably foreseeable) and Item 1012(a(ii) does not relate to (A) any Alternative Proposal or (B) clearance of Regulation M-A the Merger under the 1934 Act with regard HSR Act, the EC Merger Regulation or any other Regulatory Law, including any action in connection therewith taken pursuant to an Acquisition Proposalor required to be taken pursuant to Section 7.08; provided provided, however, that (1) any change in the Board price or trading volume of Directors BHI Common Stock or of Siebel oil or gas shall not recommend that Siebel’s stockholders tender shares be taken into account for purposes of capital stock in connection with any tender or exchange offer unless such Board of Directors shall have determined in good faith by a majority votedetermining whether an Intervening Event has occurred (it being acknowledged, after consultation with its outside legal counselhowever, that failure to make such recommendation would in the case of the price or trading volume of BHI Common Stock, any underlying cause thereof may be reasonably likely to result taken into account for purposes of determining whether an Intervening Event has occurred); (2) in a breach of its fiduciary duties under applicable Law.
no event shall any fact, circumstance, occurrence, event, development, change or condition or combination thereof (c) The Board of Directors of Siebel shall not take including any of the actions referred to foregoing set forth on or reflected in clauses (ithe GE O&G Audited Financial Statements) through (vii) of the preceding subsection unless Siebel shall have delivered to Oracle a prior written notice advising Oracle that it intends to take such action. In addition, Siebel shall notify Oracle promptly (but in no event later than 24 hours) after an officer has had or director first obtains Knowledge of the receipt by Siebel (or any of the Siebel Representatives) of any Acquisition Proposal, any inquiry that would reasonably be expected to lead to have an Acquisition Proposal, adverse effect on the business or any request for confidential information relating to Siebel financial condition of GE or any of its Subsidiaries constitute an Intervening Event unless such event, fact, circumstance or development constitutes a GE Material Adverse Effect; and (3) BHI or GE (in respect of GE O&G) meeting, failing to meet or exceeding projections shall not be taken into account for access to the businesspurposes of determining whether an Intervening Event has occurred (it being acknowledged, propertieshowever, assets, books or records that any underlying cause thereof may be taken into account for purposes of Siebel or any of its Subsidiaries by any Third Party that determining whether an Intervening Event has informed Siebel that it is considering making, or has made, an Acquisition Proposal. Siebel shall provide such notice orally and in writing and shall identify the Third Party making, and the material terms and conditions of, any such Acquisition Proposal, inquiry or request. Siebel shall promptly provide Oracle with any non-public information concerning Siebel’s business, present or future performance, financial condition or results of operations, provided to any Qualified Third Party after the date of this Agreement in connection with an Acquisition Proposal made by such Third Party that was not previously provided to Oracle. Siebel shall keep Oracle promptly and reasonably informed, on a reasonably current basis, of the status and material details of any such Acquisition Proposal, inquiry or request. Siebel shall, and shall cause its Subsidiaries and the Siebel Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party with respect to any Acquisition Proposal and shall instruct any such Third Party (or its agents or advisors) in possession of confidential information about Siebel that was furnished by or on behalf of Siebel with respect to any Acquisition Proposal within the six months prior to the date hereof to return or destroy all such informationoccurred).
Appears in 1 contract
Samples: Transaction Agreement and Plan of Merger (General Electric Co)
No Solicitation; Other Offers. (a) Neither Siebel nor any of its Subsidiaries Subject to Section 6.03(c) through Section 6.03(g), neither IMOS shall, nor shall Siebel or any of its Subsidiaries IMOS authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants accountants, consultants or other agents, representatives agents or advisors (the “Siebel Representatives”) to, directly or indirectly, : (i) solicit, initiate, solicit or take any action to knowingly facilitate or knowingly encourage any inquiries or requests for information with respect to, the submission of any making of, or that could reasonably be expected to result in, an Acquisition Proposal, ; (ii) enter into into, participate or participate engage in any discussions negotiations concerning, or negotiations with, furnish provide any non-public information or data relating to Siebel it or any of its Subsidiaries to any Person or afford access to the businessresources, properties, assets, books or records of Siebel it or any of its Subsidiaries to any Third Party that has madePerson relating to, in connection with, or has informed Siebel that it is seeking in response to make, an Acquisition Proposal, or any inquiry or indication of interest that could reasonably expected to result in an Acquisition Proposal; (iii) approve or recommend, or propose publicly to approve or recommend, any Acquisition Proposal; (iv) approve or recommend, or propose publicly to approve or recommend, or execute or enter into, any letter of intent, agreement in principle, merger or amalgamation agreement, acquisition agreement, option agreement or other similar agreement relating to any Acquisition Proposal (each an “Acquisition Agreement”); (v) terminate, amend, release, modify or fail to enforce any provision (including any standstill or other provision) of, or grant any Third Party permission, waiver or release under request under, any confidentiality, standstill or similar agreement with (including an Acceptable Confidentiality Agreement) or obligations of any Person (other than in respect of ChipMOS Taiwan); or (vi) propose publicly or commit, authorize or agree to do any of the foregoing relating to any class Acquisition Proposal. It is agreed that any violation of equity securities the restrictions on IMOS set forth in this Section by any Representative of Siebel IMOS or any of its Subsidiaries or amend or terminate the Siebel Rights Plan or redeem the Siebel Rights or (iv) enter into any agreement (except for confidentiality agreements, referred to in shall be a breach of this Section 6.04(b)) with any Third Party with respect to an Acquisition Proposal made by such Third Party, or any other agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Mergers or any of the other transactions contemplated by this AgreementIMOS.
(b) Notwithstanding anything Subject to the contrary contained in this Agreement, Siebel (Section 6.03(c) through one or more of the Siebel Representatives) or its Board of Directors maySection 6.03(g), prior to the Siebel Stockholder ApprovalClosing, neither the IMOS Board nor any committee thereof shall, directly or indirectly: (i) engage in negotiations withhold, withdraw, modify or discussions with any Third Party (qualify, or with the representatives of any Third Party) that has made an Acquisition Proposal not solicited in violation of Section 6.03(a) if such Acquisition Proposal constitutes publicly propose to withhold, withdraw, modify or could reasonably be expected to lead to a Superior Proposal (such Third Partyqualify, a “Qualified Third Party”), (ii) furnish to such Qualified Third Party or its representatives non-public information relating to Siebel or any of its Subsidiaries pursuant to an executed confidentiality agreement containing customary nondisclosure provisions (which need not include “standstill ” or similar provisions) (and a copy of which shall be promptly (in all events within 24 hours) provided for informational purposes only to Oracle), (iii) grant a waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel or any of its Subsidiaries, (iv) amend or terminate the Siebel Rights Plan or redeem the Siebel Rights, (v) withdraw the Siebel Board Recommendation or modify the Siebel Board Recommendation in a manner adverse to Oracle ChipMOS Taiwan, the IMOS Board Recommendation; (ii) approve, adopt, recommend or declare advisable, or publicly propose to approve, adopt, recommend or declare advisable, any Acquisition Proposal or otherwise enter into or permit IMOS to enter into any Acquisition Agreement; (iii) if a tender offer or exchange offer for any issued and outstanding shares IMOS is commenced prior to obtaining the IMOS Shareholder Approval, fail to recommend against acceptance of such tender offer or exchange offer by its respective shareholders (including, for these purposes, by taking no position or a neutral position in respect of the acceptance of such tender offer or exchange offer by its shareholders, which shall be deemed to be a failure to recommend against the acceptance of such tender offer or exchange offer) within five Business Days after commencement thereof (or in the event of a change in the terms of the tender offer or exchange offer, within five Business Days of the announcement of such changes); or (iv) fail to include the IMOS Board Recommendation in the Proxy Statement/Prospectus (any such action, action described in clauses (i)-(iv) above being referred to as a “Change in of Recommendation”).
(c) Notwithstanding the limitations set forth in Section 6.03(a) and Section 6.03(b), (vi) terminate until the earlier of receipt of the IMOS Shareholder Approval and any termination of this Agreement pursuant to and subject to Section 10.01, if IMOS receives a written unsolicited bona fide Acquisition Proposal that the terms of Section 9.01(d) and/or (vii) take any action that any court of competent jurisdiction orders Siebel, one or more of the Siebel Representatives or the IMOS Board of Directors of Siebel to take, but in each case referred to in the foregoing clauses (iii), (iv) and (v) only if the Board of Directors of Siebel determines has determined in good faith by a majority votefaith, after consultation with its outside legal counsel, that failure to take such action would counsel and financial advisors: (i) constitutes a Superior Proposal; or (ii) could reasonably be reasonably likely to result in a breach of its fiduciary duties under applicable Law. Nothing contained herein shall prevent Superior Proposal, then IMOS may: (A) furnish or disclose nonpublic information to the Board of Directors of Siebel Person making such Acquisition Proposal if, prior to furnishing such information, IMOS receives from complying the third party an executed Acceptable Confidentiality Agreement and (B) engage in discussions or negotiations with Rule 14e-2(a), Rule 14d-9 and Item 1012(a) of Regulation M-A under the 1934 Act such Person with regard respect to an such Acquisition Proposal; provided that , in each case only if the IMOS Board of Directors of Siebel shall not recommend that Siebel’s stockholders tender shares of capital stock in connection with any tender or exchange offer unless such Board of Directors shall have determined determines in good faith by a majority votefaith, after consultation with its outside legal counselcounsel that failure to do so could violate the fiduciary duties of the IMOS Board under Applicable Law.
(d) Notwithstanding anything in this Agreement to the contrary, the IMOS Board, at any time prior to the receipt of the IMOS Shareholder Approval, in response to the receipt of a written unsolicited bona fide Acquisition Proposal received after the date of this Agreement, which the IMOS Board determines in good faith, after consultation with its outside legal counsel and financial advisors constitutes a Superior Proposal, shall be permitted to effect a Change of Recommendation; provided that the IMOS Board determines in good faith, after consultation with its outside legal counsel and financial advisors, that the failure to make such recommendation would be reasonably likely to result in a breach Change of its Recommendation could violate the fiduciary duties of the IMOS Board under applicable Applicable Law.
(c) The . Notwithstanding the foregoing, the IMOS Board of Directors of Siebel shall not take any be permitted to effect such a Change of the actions referred to in clauses Recommendation unless and until (iA) through (vii) of the preceding subsection unless Siebel at least five Business Days shall have delivered to Oracle passed following the ChipMOS Taiwan Board’s receipt of a prior written notice advising Oracle from IMOS (the “Superior Proposal Notice”) that it intends to take such action. In addition, Siebel shall notify Oracle promptly (but in no event later than 24 hours) after an officer or director first obtains Knowledge includes IMOS’ reasons for the Change of the receipt by Siebel (or any of the Siebel Representatives) of any Acquisition Proposal, any inquiry that would reasonably be expected to lead to an Acquisition Proposal, or any request for confidential information relating to Siebel or any of its Subsidiaries or for access to the business, properties, assets, books or records of Siebel or any of its Subsidiaries by any Third Party that has informed Siebel that it is considering making, or has made, an Acquisition Proposal. Siebel shall provide such notice orally and in writing and shall identify the Third Party making, Recommendation and the material terms and conditions ofof any Superior Proposal (including the identity of the party making such proposal and its financing sources (if applicable), the most current version of the proposed agreement relating thereto and any agreement relating to such Acquisition Proposalfinancing) that is the basis of the proposed Change of Recommendation (it being understood and agreed that any amendment to the financial or other material terms (including the form or allocation of consideration) of such Superior Proposal shall require a new Superior Proposal Notice and a new five Business Day period during which IMOS shall comply with the terms of this Section 6.03), inquiry or request. Siebel (B) during such five Business Day period (the “Matching Period”) (x) the IMOS Board shall promptly provide Oracle have provided the ChipMOS Taiwan Board with a reasonable opportunity to make any non-public information concerning Siebel’s business, present or future performance, financial condition or results of operations, provided adjustments to any Qualified Third Party after the date terms and conditions of this Agreement and the Transactions so that such Acquisition Proposal ceases to be a Superior Proposal and shall negotiate with ChipMOS Taiwan in good faith with respect thereto, and (y) the IMOS Board shall have determined in good faith at the end of such Matching Period and, after considering the results of such negotiations and the revised proposals made by ChipMOS Taiwan, if any, and after consultation with its outside legal counsel and financial advisors that the Superior Proposal, giving rise to such Superior Proposal Notice, continues to be a Superior Proposal and that the failure to make such a Change of Recommendation could violate its fiduciary duties under Applicable Laws, and (C) the IMOS Board has not materially breached its obligations under this Section 6.03.
(e) Notwithstanding any Change of Recommendation or anything else contained in this Agreement: (i) IMOS shall call, give notice of, convene and hold the IMOS Shareholder Meeting for the purpose of obtaining the IMOS Shareholder Approval, and nothing contained herein shall relieve IMOS of such obligation, and such obligation shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission to IMOS of any Acquisition Proposal; and (ii) IMOS shall not take any action knowingly to facilitate such Acquisition Proposal including without limitation in connection with an Acquisition Proposal made any approvals, except as required by such Third Party that was not previously provided to Oracle. Siebel Applicable Law.
(f) IMOS shall keep Oracle promptly and reasonably informed, on a reasonably current basis, of the status and material details of any such Acquisition Proposal, inquiry or request. Siebel shall, and shall cause its Subsidiaries and the Siebel Representatives to, (i) immediately following execution hereof cease immediately and cause to be terminated any and all existing activities, solicitations, discussions or negotiations, if any, with any Third Party Person or its Representatives (other than ChipMOS Taiwan and its Representatives) conducted prior to the date of this Agreement with respect to any Acquisition Proposal Proposal, and shall instruct request that any such Third Party Person (together with its Representatives) that has executed a confidentiality agreement in connection with an Acquisition Proposal with it or any of its agents or advisors) Subsidiaries within the 24-month period prior to the date hereof and that is in possession of confidential information about Siebel that was heretofore furnished by or on behalf of Siebel with respect to any Acquisition Proposal within the six months prior to the date hereof it or its Subsidiaries, to return or destroy such information as promptly as practicable, (ii) immediately following execution hereof take all steps necessary (to the extent reasonably possible) to terminate any approval under any confidentiality, “standstill” or similar provision that may have been heretofore given by IMOS to any Person to make an Acquisition Proposal and (iii) take the necessary steps to promptly inform its and its Subsidiaries’ Representatives of the obligations undertaken in this Section 6.03.
(g) From and after the date of this Agreement, IMOS shall promptly orally notify ChipMOS Taiwan of any request for information or any inquiries, proposals or offers relating to an Acquisition Proposal indicating, in connection with such informationnotice, the name of such Person making such request, inquiry, proposal or offer and the material terms and conditions of any proposals or offers (including the identity of the party making such proposal and its financing sources (if applicable), the most current version of the proposed agreement relating thereto and any agreement relating to such financing) and IMOS shall provide ChipMOS Taiwan written notice of any such inquiry, proposal or offer within 24 hours of such event and copies of any written or electronic correspondence to or from any Person making an Acquisition Proposal. IMOS shall keep ChipMOS Taiwan informed orally, as soon as is reasonably practicable, of the status of any such Acquisition Proposal, including with respect to the status and terms of any such proposal or offer and whether any such proposal or offer has been withdrawn or rejected and IMOS shall provide to ChipMOS Taiwan written notice of any such withdrawal or rejection and copies of any written proposals or requests for information within 24 hours. IMOS shall provide any information to ChipMOS Taiwan (not previously provided to ChipMOS Taiwan) that it is providing to another Person pursuant to this Section 6.03 at substantially the same time it provides such information to such other Person.
Appears in 1 contract
Samples: Merger Agreement (Chipmos Technologies Bermuda LTD)
No Solicitation; Other Offers. (a) Neither Siebel the Company nor any of its Subsidiaries shall, nor shall Siebel the Company or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants accountants, consultants or other agents, representatives agents or advisors (the “Siebel Representatives”) to, directly or indirectly, (i) solicit, initiate, knowingly initiate or take any action to facilitate or knowingly encourage the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any non-public information relating to Siebel the Company or any of its Subsidiaries to or afford access to the business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries to to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that has made, or has informed Siebel that it is seeking to make, or has made, an Acquisition Proposal, (iii) grant any Third Party waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel the Company or any of its Subsidiaries or amend or terminate the Siebel Rights Plan or redeem the Siebel Rights or (iv) enter into any agreement (except for confidentiality agreements, referred to in Section 6.04(b)) with any Third Party with respect to an Acquisition Proposal made by such Third Party, or any other agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Mergers or any of the other transactions contemplated by this AgreementProposal.
(b) Notwithstanding anything to the contrary contained in this Agreementforegoing, Siebel (through one or more of the Siebel Representatives) or its Board of Directors mayof the Company, prior to the Siebel Stockholder Approvaldirectly or indirectly through advisors, agents or other intermediaries, may (i) engage in negotiations or discussions with any Third Party (or that, subject to the Company’s compliance with the representatives of any Third Party) that Section 7.03(a), has made an a bona fide Acquisition Proposal not solicited in violation that the Board of Section 6.03(a) if such Acquisition Proposal constitutes or could Directors of the Company reasonably be expected to believes will lead to a Superior Proposal (such Third Party, a “Qualified Third Party”)Proposal, (ii) furnish to such Qualified Third Party or its representatives non-public nonpublic information relating to Siebel the Company or any of its Subsidiaries pursuant to an executed a confidentiality agreement containing customary nondisclosure provisions (which need not include “standstill ” or similar provisions) (and a copy of which shall be promptly (in all events within 24 hours) provided for informational purposes only to Oracle), Parent) with terms no less favorable to the Company than those contained in the Confidentiality Agreement and/or (iii) grant a waiver or release under any standstill or similar agreement with respect following receipt of such Acquisition Proposal, fail to any class of equity securities of Siebel or any of its Subsidiariesmake, (iv) amend or terminate the Siebel Rights Plan or redeem the Siebel Rightswithdraw, (v) withdraw the Siebel Board Recommendation or modify the Siebel Board Recommendation in a manner adverse to Oracle (any such action, a “Change Parent its recommendation to its shareholders referred to in Recommendation”), (vi) terminate this Agreement pursuant to and subject to the terms of Section 9.01(d) and/or (vii) take any action that any court of competent jurisdiction orders Siebel, one or more of the Siebel Representatives or the Board of Directors of Siebel to take, 7.02 hereof; but in each case referred to in the foregoing clauses (i) through (iii), (iv) and (v) only if the Board of Directors of Siebel the Company determines in good faith by a majority vote, after consultation with its outside legal counselcounsel to the Company, that failure to take taking such action would be reasonably likely is in the best interests of the Company and its shareholders and that such action is necessary to result in a breach of comply with its fiduciary duties under applicable Virginia Law. Nothing contained herein shall prevent the Board of Directors of Siebel the Company from complying with Rule 14e-2(a), Rule 14d-9 and Item 1012(a) of Regulation M-A under the 1934 Act with regard to an Acquisition Proposal; provided that the Board of Directors of Siebel shall not recommend that Siebel’s stockholders tender shares of capital stock in connection with any tender or exchange offer unless such Board of Directors shall have determined in good faith by a majority vote, after consultation with its outside legal counsel, that failure to make such recommendation would be reasonably likely to result in a breach of its fiduciary duties under applicable Law.
(c) The Board of Directors of Siebel the Company shall not take any of the actions referred to in clauses (i) through (viiiii) of the preceding subsection unless Siebel the Company shall have delivered to Oracle Parent a prior written notice advising Oracle Parent that it intends to take such action, and the Company shall continue to advise Parent after taking such action. In addition, Siebel the Company shall notify Oracle Parent promptly (but in no event later than 24 hours) after an officer or director first obtains Knowledge of the receipt by Siebel the Company (or any of the Siebel Representativesits advisors) of any Acquisition Proposal, any inquiry indication that would reasonably be expected to lead to a Third Party is considering making an Acquisition Proposal, Proposal or of any request for confidential information relating to Siebel the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries by any Third Party that has informed Siebel that it is may be considering making, or has made, an Acquisition Proposal. Siebel The Company shall provide such notice orally and in writing and shall identify the Third Party making, and the material terms and conditions of, any such Acquisition Proposal, inquiry indication or request. Siebel shall promptly provide Oracle with any non-public information concerning Siebel’s business, present or future performance, financial condition or results of operations, provided to any Qualified Third Party after the date of this Agreement in connection with an Acquisition Proposal made by such Third Party that was not previously provided to Oracle. Siebel The Company shall keep Oracle promptly and reasonably Parent fully informed, on a reasonably current basis, of the status and material details of any such Acquisition Proposal, inquiry indication or request. Siebel The Company shall, and shall cause its Subsidiaries and the Siebel Representatives advisors, employees and other agents of the Company and any of its Subsidiaries to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to the date hereof with respect to any Acquisition Proposal and shall instruct use its reasonable best efforts to cause any such Third Party (or its agents or advisors) in possession of confidential information about Siebel the Company that was furnished by or on behalf of Siebel with respect to any Acquisition Proposal within the six months prior to the date hereof Company to return or destroy all such information.
Appears in 1 contract
No Solicitation; Other Offers. (a) Neither Siebel nor any of The Company shall not, and shall cause its Subsidiaries shallRepresentatives, nor shall Siebel or any of its Subsidiaries authorize or permit any of its or their officers, employees, directors, employees, investment bankers, attorneys, accountants or other agents, representatives or advisors stockholders and other holders of Company Securities, agents, Subsidiaries and Affiliates, and their respective Affiliates (collectively, the “Siebel RepresentativesSellers Group”) not to, directly or indirectly: (a) initiate, (i) solicit, initiateentertain, knowingly facilitate negotiate, accept or knowingly encourage materially discuss, directly or indirectly, any proposal or offer from any Person or group of Persons other than Parent and its Affiliates to acquire all or any significant part of the submission business and properties, capital stock or capital stock equivalents of any Company Entity, whether by merger, purchase of stock, purchase of assets, tender offer or otherwise (an “Acquisition Proposal, (ii”) or enter into a Contract with any Person (other than Parent or participate in any discussions or negotiations with, furnish its Affiliates) regarding an Acquisition Proposal; (b) provide any non-public information relating to Siebel or any of its Subsidiaries to or afford access to the business, properties, assets, books or records of Siebel or any of its Subsidiaries to any Third Party that has made, or has informed Siebel that it is seeking to make, third party in connection with an Acquisition Proposal, (iii) grant any Third Party waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel or any of its Subsidiaries or amend or terminate the Siebel Rights Plan or redeem the Siebel Rights ; or (ivc) enter into any agreement (except for confidentiality agreements, referred to in Section 6.04(b)) with any Third Party with respect to an Acquisition Proposal made by such Third Party, or any other agreement, arrangement or understanding Contract requiring it the Company to abandon, terminate or fail to consummate the Mergers or any of the other transactions contemplated by this Agreement.
Agreement and the other Transaction Documents. The Company agrees to immediately notify Parent if any member of the Sellers Group receives any indications of interest, requests for information or offers in respect of an Acquisition Proposal, and shall communicate to Parent in reasonable detail the terms of any such indication, request or offer, and shall provide Parent with copies of all written communications relating to any such indication, request or offer. Except for the terms contained within the Promissory Note, the Company represents (b) Notwithstanding anything which representation is deemed to the contrary contained in be a representation made under ARTICLE III for all purposes of this Agreement, Siebel (through one or more ) that no member of the Siebel Representatives) Sellers Group is party to or its Board of Directors may, prior to the Siebel Stockholder Approval, (i) engage in negotiations or discussions with bound by any Third Party (or with the representatives of any Third Party) that has made an Acquisition Proposal not solicited in violation of Section 6.03(a) if such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal (such Third Party, a “Qualified Third Party”), (ii) furnish to such Qualified Third Party or its representatives non-public information relating to Siebel or any of its Subsidiaries pursuant to an executed confidentiality agreement containing customary nondisclosure provisions (which need not include “standstill ” or similar provisions) (and a copy of which shall be promptly (in all events within 24 hours) provided for informational purposes only to Oracle), (iii) grant a waiver or release under any standstill or similar agreement with respect to an Acquisition Proposal other than under this Agreement. Parent shall have the right and remedy to have the provisions of this Section 6.07 specifically enforced by any class of equity securities of Siebel or any of its Subsidiariescourt having jurisdiction, (iv) amend or terminate the Siebel Rights Plan or redeem the Siebel Rights, (v) withdraw the Siebel Board Recommendation or modify the Siebel Board Recommendation in a manner adverse to Oracle (any such action, a “Change in Recommendation”), (vi) terminate this Agreement pursuant to it being acknowledged and subject to the terms of Section 9.01(d) and/or (vii) take any action agreed that any court breach or threatened breach thereof may cause irreparable injury to Parent and that money damages may not provide an adequate remedy to Parent, which right and remedy shall be independent of competent jurisdiction orders Siebel, one or more of the Siebel Representatives or the Board of Directors of Siebel to take, but in each case referred to in the foregoing clauses (iii), (iv) all others and (v) only if the Board of Directors of Siebel determines in good faith by a majority vote, after consultation with its outside legal counsel, that failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Law. Nothing contained herein shall prevent the Board of Directors of Siebel from complying with Rule 14e-2(a), Rule 14d-9 and Item 1012(a) of Regulation M-A under the 1934 Act with regard to an Acquisition Proposal; provided that the Board of Directors of Siebel shall not recommend that Siebel’s stockholders tender shares of capital stock in connection with any tender or exchange offer unless such Board of Directors shall have determined in good faith by a majority vote, after consultation with its outside legal counsel, that failure to make such recommendation would be reasonably likely to result in a breach of its fiduciary duties under applicable Law.
(c) The Board of Directors of Siebel shall not take any of the actions referred to in clauses (i) through (vii) of the preceding subsection unless Siebel shall have delivered to Oracle a prior written notice advising Oracle that it intends to take such action. In addition, Siebel shall notify Oracle promptly (but in no event later than 24 hours) after an officer or director first obtains Knowledge of the receipt by Siebel (or any of the Siebel Representatives) of any Acquisition Proposal, any inquiry that would reasonably be expected to lead to an Acquisition Proposal, or any request for confidential information relating to Siebel or any of its Subsidiaries or for access to the business, properties, assets, books or records of Siebel or any of its Subsidiaries by any Third Party that has informed Siebel that it is considering making, or has made, an Acquisition Proposal. Siebel shall provide such notice orally and in writing and shall identify the Third Party makingseverally enforceable, and the material terms each of which is in addition to, and conditions not in lieu of, any such Acquisition Proposal, inquiry other rights and remedies available to Parent under law or request. Siebel shall promptly provide Oracle with any non-public information concerning Siebel’s business, present or future performance, financial condition or results of operations, provided to any Qualified Third Party after the date of this Agreement in connection with an Acquisition Proposal made by such Third Party that was not previously provided to Oracle. Siebel shall keep Oracle promptly and reasonably informed, on a reasonably current basis, of the status and material details of any such Acquisition Proposal, inquiry or request. Siebel shall, and shall cause its Subsidiaries and the Siebel Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party with respect to any Acquisition Proposal and shall instruct any such Third Party (or its agents or advisors) in possession of confidential information about Siebel that was furnished by or on behalf of Siebel with respect to any Acquisition Proposal within the six months prior to the date hereof to return or destroy all such informationequity.
Appears in 1 contract
No Solicitation; Other Offers. (a) Neither Siebel the Company nor any of its Subsidiaries shall, nor shall Siebel the Company or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants accountants, consultants or other agents, representatives agents or advisors (the “Siebel Representatives”) to, directly or indirectly, (i) solicit, initiate, initiate or knowingly take any action to facilitate or knowingly encourage the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any non-public information relating to Siebel the Company or any of its Subsidiaries to or afford access to the business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries to to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that has made, or has informed Siebel that it is seeking to make, or has made, an Acquisition Proposal, or (iii) grant any Third Party waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel the Company or any of its Subsidiaries or amend or terminate the Siebel Rights Plan or redeem the Siebel Rights or (iv) enter into any agreement (except for confidentiality agreements, referred to in Section 6.04(b)) with any Third Party with respect to an Acquisition Proposal made by such Third Party, or any other agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Mergers or any of the other transactions contemplated by this AgreementSubsidiaries.
(b) Notwithstanding anything to the contrary contained in this Agreementforegoing, Siebel (through one or more of the Siebel Representatives) or its Board of Directors of the Company, directly or indirectly through advisors, agents or other intermediaries, may, prior to the Siebel Stockholder Approvalapproval and adoption of this Agreement by the shareholders of the Company, (i) engage in negotiations or discussions with any Third Party (or that, subject to the Company's compliance with the representatives of any Third Party) that Section 7.03(a), has made an Acquisition Proposal not solicited in violation of Section 6.03(a) if such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal (such Third Party, a “Qualified Third Party”)Proposal, (ii) furnish to such Qualified Third Party or its representatives non-public nonpublic information relating to Siebel the Company or any of its Subsidiaries pursuant to an executed a confidentiality agreement containing customary nondisclosure provisions with terms no less favorable to the Company than those contained in the Confidentiality Agreement (which need not include “standstill ” or similar provisions) (and a copy of which shall be promptly (in all events within 24 hours) provided for informational purposes only to OracleParent), (iii) grant following receipt of such Superior Proposal, take and disclose to its shareholders a waiver position contemplated by Rule 14e-2(a) under the 1934 Act or release under any standstill or similar agreement with respect otherwise make disclosure to any class of equity securities of Siebel or any of its Subsidiariesthem, (iv) amend or terminate the Siebel Rights Plan or redeem the Siebel Rightsfollowing receipt of such Superior Proposal, (v) withdraw the Siebel Board Recommendation fail to make, withdraw, or modify the Siebel Board Recommendation in a manner adverse to Oracle (any such action, a “Change Parent its recommendation to its shareholders referred to in Recommendation”), (vi) terminate this Agreement pursuant to and subject to the terms of Section 9.01(d) Sections 2.02 and/or 7.02 hereof and/or (viiv) take any non-appealable, final action that ordered to be taken by the Company by any court of competent jurisdiction orders Siebel, one or more of the Siebel Representatives or the Board of Directors of Siebel to takejurisdiction, but in each case referred to in the foregoing clauses (iii), i) through (iv) and (v) only if the Board of Directors of Siebel the Company determines in good faith by a majority vote, after consultation with its on the basis of advice from Xxxxx Xxxx LLP, outside legal counselcounsel to the Company, that its failure to take such action would be reasonably likely to result in a breach of be inconsistent with fulfilling its fiduciary duties under applicable Law. Nothing contained herein shall prevent the Board of Directors of Siebel from complying law and complies with Rule 14e-2(aSection 7.03(c), Rule 14d-9 and Item 1012(a) of Regulation M-A under the 1934 Act with regard to an Acquisition Proposal; provided that the Board of Directors of Siebel shall not recommend that Siebel’s stockholders tender shares of capital stock in connection with any tender or exchange offer unless such Board of Directors shall have determined in good faith by a majority vote, after consultation with its outside legal counsel, that failure to make such recommendation would be reasonably likely to result in a breach of its fiduciary duties under applicable Law.
(c) The Board of Directors of Siebel the Company shall not take any of the actions referred to in clauses (i) through (viiiv) of the preceding subsection unless Siebel the Company shall have delivered to Oracle Parent a prior written notice advising Oracle Parent that it intends to take such action, and the Company shall continue to advise Parent after taking such action. In addition, Siebel the Company shall notify Oracle Parent promptly (but in no event later than 24 36 hours) after an officer or director first obtains Knowledge of the receipt by Siebel the Company (or any of the Siebel Representativesits advisors) of any Acquisition Proposal, any inquiry indication that would reasonably be expected to lead to any Third Party is considering making an Acquisition Proposal, Proposal or any request for confidential information relating to Siebel the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries by any Third Party that has informed Siebel that it is may be considering making, or has made, an Acquisition Proposal. Siebel The Company shall provide such notice orally and in writing and shall identify the Third Party making, and the material terms and conditions of, any such Acquisition Proposal, inquiry indication or request. Siebel shall promptly provide Oracle with any non-public information concerning Siebel’s business, present or future performance, financial condition or results of operations, provided to any Qualified Third Party after the date of this Agreement in connection with an Acquisition Proposal made by such Third Party that was not previously provided to Oracle. Siebel The Company shall keep Oracle promptly and reasonably Parent fully informed, on a reasonably current basis, of the status and any material details of developments with respect to any such Acquisition Proposal, inquiry indication or request. Siebel The Company shall, and shall cause its Subsidiaries and the Siebel Representatives advisors, employees and other agents of the Company and any of its Subsidiaries to, cease immediately and cause to be terminated any and all existing activities, discussions or and negotiations, if any, with any Third Party conducted prior to the date hereof with respect to any Acquisition Proposal and shall instruct use its reasonable best efforts to cause any such Third Party (or its agents or advisors) in possession of confidential information about Siebel the Company that was furnished by or on behalf of Siebel with respect to any Acquisition Proposal within the six months prior to the date hereof Company to return or destroy all such information.
Appears in 1 contract
Samples: Merger Agreement (Fedex Corp)
No Solicitation; Other Offers. (a) Neither Siebel the Company nor any of its Subsidiaries shall, nor shall Siebel the Company or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants accountants, consultants or other agents, representatives agents or advisors (the “Siebel Representatives”) to, directly or indirectly, (i) solicit, initiate, knowingly initiate or take any action to facilitate or knowingly encourage the submission of any Acquisition Proposal, (ii) enter into or participate engage in any discussions or negotiations with, furnish any non-public nonpublic information relating to Siebel the Company or any of its Subsidiaries to or afford access to the business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries to to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that has made, or has informed Siebel that it is seeking to make, or has made, an Acquisition Proposal, (iii) grant any Third Party waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel the Company or any of its Subsidiaries or amend or terminate the Siebel Rights Plan or redeem the Siebel Rights or (iv) enter into any agreement (except for confidentiality agreements, referred to in Section 6.04(b)) with any Third Party with respect to an Acquisition Proposal made by such Third Party, (other than a confidentiality agreement in compliance with Section 6.03(b)(ii) or a letter of intent or any other agreement, arrangement agreement or understanding requiring it to abandon, terminate or fail to consummate the Mergers or contract accepting any of the other transactions contemplated by this AgreementSuperior Proposal in accordance with Section 10.01(d)).
(b) Notwithstanding anything to the contrary contained in this Agreementforegoing, Siebel (through one or more of the Siebel Representatives) or its Board of Directors mayof the Company, prior to the Siebel Stockholder Approvaldirectly or indirectly through advisors, agents or other intermediaries, may (i) subject to the Company’s compliance with Sections 6.03(a) and 6.03(c), engage in negotiations or discussions with any Third Party (or with the representatives of any Third Party) that has made an submits a bona fide, unsolicited written Acquisition Proposal not solicited in violation that the Board of Section 6.03(a) if such Acquisition Proposal constitutes or could Directors reasonably be expected to believes will lead to a Superior Proposal (such Third Party, a “Qualified Third Party”)Proposal, (ii) furnish to such Qualified that Third Party or its representatives non-public nonpublic information relating to Siebel the Company or any of its Subsidiaries pursuant to an executed a confidentiality agreement containing customary nondisclosure provisions with terms no less favorable to the Company than those contained in the Confidentiality Agreement dated as of March 3, 2004 between the Company and Parent (which need not include the “standstill ” or similar provisionsConfidentiality Agreement”) (and a copy of which shall be promptly (in all events within 24 hours) provided for informational purposes only to OracleParent), (iii) grant a waiver or release under following receipt of any standstill or similar agreement with respect such Acquisition Proposal, fail to any class of equity securities of Siebel or any of its Subsidiariesmake, (iv) amend or terminate the Siebel Rights Plan or redeem the Siebel Rightswithdraw, (v) withdraw the Siebel Board Recommendation or modify the Siebel Board Recommendation in a manner adverse to Oracle (any such action, a “Change Parent its recommendation to its stockholders referred to in Recommendation”), (vi) terminate Section 6.02 of this Agreement pursuant or fail to and subject to call the terms Company Stockholder Meeting in accordance with Section 6.02 of Section 9.01(d) this Agreement and/or (viiiv) take any non-appealable, final action that any court of competent jurisdiction orders Siebel, one or more of the Siebel Representatives or the Board of Directors of Siebel Company to take, but in each case referred to in the foregoing clauses (iii), i) through (iv) and (v) only if the Board of Directors of Siebel the Company determines in good faith by a majority votefaith, after consultation with its outside legal counsel, that failure to take such action would be reasonably is likely to result be required in a breach of order for its directors to comply with their fiduciary duties under applicable Lawlaw. Nothing contained herein in this Agreement shall prevent the Board of Directors of Siebel the Company from complying with Rule 14e-2(a), Rule 14d-9 and Item 1012(a) of Regulation M-A under the 1934 Act with regard to an Acquisition Proposal; provided that the Board of Directors of Siebel shall not recommend that Siebel’s stockholders tender shares of capital stock in connection with any tender or exchange offer unless such Board of Directors shall have determined in good faith by a majority vote, after consultation with its outside legal counsel, that failure to make such recommendation would be reasonably likely to result in a breach of its fiduciary duties under applicable Law.
(c) The Board of Directors of Siebel the Company shall not take any of the actions referred to in clauses (iSections 6.03(b)(i) through (viib)(iv) of unless the preceding subsection unless Siebel Company shall have delivered to Oracle Parent, no later than substantially contemporaneously with the taking of that action, a prior written notice advising Oracle Parent that it is taking (or intends to take such take) that action, and the Company shall continue to keep Parent reasonably current with any developments after taking that action. In addition, Siebel the Company shall notify Oracle Parent promptly (but in no event later than 24 hours) after an officer or director first obtains Knowledge of the receipt by Siebel the Company (or any of the Siebel Representativesits advisors) of any Acquisition Proposal, any inquiry that would reasonably be expected to lead to an Acquisition Proposal, Proposal or of any request for confidential information relating to Siebel the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries (other than such components of such businesses, properties or assets that are generally accessible to the public) by any Third Party that has informed Siebel that it is considering making, or has made, an Acquisition Proposal. Siebel The Company shall provide such that notice orally and in writing and shall identify the Third Party making, and the material terms and conditions of, any such Acquisition Proposal, inquiry indication or request. Siebel shall promptly provide Oracle with any non-public information concerning Siebel’s business, present or future performance, financial condition or results of operations, provided to any Qualified Third Party after the date of this Agreement in connection with an Acquisition Proposal made by such Third Party that was not previously provided to Oracle. Siebel The Company shall keep Oracle promptly and reasonably informedParent informed in all material respects, on a reasonably current prompt basis, of the status and material details of any such Acquisition Proposal, inquiry indication or request. Siebel The Company shall, and shall cause its Subsidiaries and the Siebel Representatives advisors, employees and other agents of the Company and its Subsidiaries to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to the date of this Agreement with respect to any Acquisition Proposal and shall instruct use all commercially reasonable efforts to cause any such Third Party party (or its agents or advisors) in possession of confidential information about Siebel the Company that was furnished by or on behalf of Siebel with respect to any Acquisition Proposal within the six months prior to the date hereof Company to return or destroy all such of that information.
Appears in 1 contract
Samples: Merger Agreement (V F Corp)
No Solicitation; Other Offers. (a) Neither Siebel the Company nor any of its Subsidiaries shall, nor shall Siebel the Company or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants accountants, consultants or other agents, representatives agents or advisors (the “Siebel Representatives”) to, directly or indirectly, (i) solicit, initiate, initiate or knowingly take any action to facilitate or knowingly encourage the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any non-public information relating to Siebel the Company or any of its Subsidiaries to or afford access to the business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries to to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that has made, or has informed Siebel that it is seeking to make, or has made, an Acquisition Proposal, or (iii) grant any Third Party waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel the Company or any of its Subsidiaries or amend or terminate the Siebel Rights Plan or redeem the Siebel Rights or (iv) enter into any agreement (except for confidentiality agreements, referred to in Section 6.04(b)) with any Third Party with respect to an Acquisition Proposal made by such Third Party, or any other agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Mergers or any of the other transactions contemplated by this AgreementSubsidiaries.
(b) Notwithstanding anything to the contrary contained in this Agreementforegoing, Siebel (through one or more of the Siebel Representatives) or its Board of Directors of the Company, directly or indirectly through advisors, agents or other intermediaries, may, prior to the Siebel Stockholder Approvalapproval and adoption of this Agreement by the shareholders of the Company, (i) engage in negotiations or discussions with any Third Party (or that, subject to the Company's compliance with the representatives of any Third Party) that Section 7.03(a), has made an Acquisition Proposal not solicited in violation of Section 6.03(a) if such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal (such Third Party, a “Qualified Third Party”)Proposal, (ii) furnish to such Qualified Third Party or its representatives non-public nonpublic information relating to Siebel the Company or any of its Subsidiaries pursuant to an executed a confidentiality agreement containing customary nondisclosure provisions with terms no less favorable to the Company than those contained in the Confidentiality Agreement (which need not include “standstill ” or similar provisions) (and a copy of which shall be promptly (in all events within 24 hours) provided for informational purposes only to OracleParent), (iii) grant following receipt of such Superior Proposal, take and disclose to its shareholders a waiver position contemplated by Rule 14e-2(a) under the 1934 Act or release under any standstill or similar agreement with respect otherwise make disclosure to any class of equity securities of Siebel or any of its Subsidiariesthem, (iv) amend or terminate the Siebel Rights Plan or redeem the Siebel Rightsfollowing receipt of such Superior Proposal, (v) withdraw the Siebel Board Recommendation fail to make, withdraw, or modify the Siebel Board Recommendation in a manner adverse to Oracle (any such action, a “Change Parent its recommendation to its shareholders referred to in Recommendation”), (vi) terminate this Agreement pursuant to and subject to the terms of Section 9.01(d) Sections 2.02 and/or 7.02 hereof and/or (viiv) take any non-appealable, final action that ordered to be taken by the Company by any court of competent jurisdiction orders Siebel, one or more of the Siebel Representatives or the Board of Directors of Siebel to takejurisdiction, but in each case referred to in the foregoing clauses (iii), i) through (iv) and (v) only if the Board of Directors of Siebel the Company determines in good faith by a majority vote, after consultation with its on the basis of advice from Kutak Rock LLP, outside legal counselcounsex xx xxx Xompany, that its failure to take such action would be reasonably likely to result in a breach of be inconsistent with fulfilling its fiduciary duties under applicable Law. Nothing contained herein shall prevent the Board of Directors of Siebel from complying law and complies with Rule 14e-2(aSection 7.03(c), Rule 14d-9 and Item 1012(a) of Regulation M-A under the 1934 Act with regard to an Acquisition Proposal; provided that the Board of Directors of Siebel shall not recommend that Siebel’s stockholders tender shares of capital stock in connection with any tender or exchange offer unless such Board of Directors shall have determined in good faith by a majority vote, after consultation with its outside legal counsel, that failure to make such recommendation would be reasonably likely to result in a breach of its fiduciary duties under applicable Law.
(c) The Board of Directors of Siebel the Company shall not take any of the actions referred to in clauses (i) through (viiiv) of the preceding subsection unless Siebel the Company shall have delivered to Oracle Parent a prior written notice advising Oracle Parent that it intends to take such action, and the Company shall continue to advise Parent after taking such action. In addition, Siebel the Company shall notify Oracle Parent promptly (but in no event later than 24 36 hours) after an officer or director first obtains Knowledge of the receipt by Siebel the Company (or 40 any of the Siebel Representativesits advisors) of any Acquisition Proposal, any inquiry indication that would reasonably be expected to lead to any Third Party is considering making an Acquisition Proposal, Proposal or any request for confidential information relating to Siebel the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries by any Third Party that has informed Siebel that it is may be considering making, or has made, an Acquisition Proposal. Siebel The Company shall provide such notice orally and in writing and shall identify the Third Party making, and the material terms and conditions of, any such Acquisition Proposal, inquiry indication or request. Siebel shall promptly provide Oracle with any non-public information concerning Siebel’s business, present or future performance, financial condition or results of operations, provided to any Qualified Third Party after the date of this Agreement in connection with an Acquisition Proposal made by such Third Party that was not previously provided to Oracle. Siebel The Company shall keep Oracle promptly and reasonably Parent fully informed, on a reasonably current basis, of the status and any material details of developments with respect to any such Acquisition Proposal, inquiry indication or request. Siebel The Company shall, and shall cause its Subsidiaries and the Siebel Representatives advisors, employees and other agents of the Company and any of its Subsidiaries to, cease immediately and cause to be terminated any and all existing activities, discussions or and negotiations, if any, with any Third Party conducted prior to the date hereof with respect to any Acquisition Proposal and shall instruct use its reasonable best efforts to cause any such Third Party (or its agents or advisors) in possession of confidential information about Siebel the Company that was furnished by or on behalf of Siebel with respect to any Acquisition Proposal within the six months prior to the date hereof Company to return or destroy all such information.
Appears in 1 contract
Samples: Agreement and Plan of Merger (American Freightways Corp)
No Solicitation; Other Offers. (a) Neither Siebel Subject to Section 6.03(b), neither the Company nor any of its Subsidiaries shall, nor shall Siebel the Company or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants accountants, consultants or other agents, representatives agents or advisors (the “Siebel Representatives”) to, directly or indirectly, (i) solicit, initiateinitiate or take any action that could reasonably be expected to facilitate, knowingly facilitate or knowingly encourage the submission of of, any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any non-public nonpublic information relating to Siebel the Company or any of its Subsidiaries to or afford access to the business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries to to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by, any Third Party that has made, or has informed Siebel that it a Person acting in good faith would reasonably believe is seeking to make, or has made, an Acquisition Proposal, except to notify such Third Party as to the existence of these provisions, (iii) fail to make when required, withdraw or modify in a manner adverse to Parent the Company Board Recommendation (or recommend an Acquisition Proposal or take any action or make any public statement inconsistent with the Company Board Recommendation) (any of the foregoing in this clause (iii), an “Adverse Recommendation Change”), (iv) grant any Third Party any waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel the Company or any of its Subsidiaries or amend or terminate the Siebel Rights Plan or redeem the Siebel Rights or (ivv) enter into any agreement in principle, letter of intent, term sheet or other similar instrument relating to an Acquisition Proposal (except for confidentiality agreements, referred to in agreements under circumstances permitted by Section 6.04(b6.03(b)) with any Third Party with respect to an Acquisition Proposal made by such Third Party, or any other agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Mergers or any of the other transactions contemplated by this Agreement).
(b) Notwithstanding anything the foregoing, prior to receiving the contrary contained in this AgreementCompany Stockholder Approval, Siebel (through one or more of the Siebel Representatives) or its Board of Directors mayof the Company, prior to the Siebel Stockholder Approvaldirectly or indirectly through advisors, agents or other intermediaries, may (i) engage in negotiations or discussions with any Third Party (or with the representatives of any Third Party) that that, subject to the Company’s compliance with Section 6.03(a)(i), has made an a bona fide written Acquisition Proposal not solicited in violation that the Board of Section 6.03(a) if such Acquisition Proposal constitutes or could Directors of the Company reasonably be expected to believes will lead to a Superior Proposal (such Third Party, a “Qualified Third Party”)Proposal, (ii) thereafter furnish to such Qualified Third Party or its representatives non-public nonpublic information relating to Siebel the Company or any of its Subsidiaries pursuant to an executed a confidentiality agreement containing customary nondisclosure with terms no less favorable to the Company than those contained in the Confidentiality Agreement dated as of September 23, 2005 between the Company and Parent (the “Confidentiality Agreement”); provided, however, that such confidentiality agreement shall not be required to, and shall not, contain any provisions that would prevent the Company from complying with its obligation to provide the required disclosure to Parent pursuant to this Section 6.03 (which need not include “standstill ” or similar provisions) (and a copy of which confidentiality agreement shall be promptly (in all events within 24 hours) provided for informational purposes only to OracleParent), (iii) grant following a waiver or release under any standstill or similar agreement with respect to any class determination by the Board of equity securities Directors of Siebel or any of its Subsidiariesthe Company that such Acquisition Proposal is a Superior Proposal, make an Adverse Recommendation Change and/or (iv) amend or terminate the Siebel Rights Plan or redeem the Siebel Rights, (v) withdraw the Siebel Board Recommendation or modify the Siebel Board Recommendation in a manner adverse to Oracle (any such action, a “Change in Recommendation”), (vi) terminate this Agreement pursuant to and subject to the terms of Section 9.01(d) and/or (vii) take any action that any court of competent jurisdiction orders Siebel, one or more of the Siebel Representatives or the Board of Directors of Siebel Company to take, but in each case referred to in the foregoing clauses (i) through (iii), (iv) and (v) only if the Board of Directors of Siebel the Company determines in good faith by a majority vote, after consultation with considering advice from outside legal counsel to the Company (which may be its current outside legal counsel, Sxxxxxxx & Worcester LLP), that the failure to take such action would be reasonably likely to result in a breach of inconsistent with its fiduciary duties under applicable Applicable Law. Nothing contained herein shall prevent the Board of Directors of Siebel the Company from complying with Rule 14e-2(a), ) or Rule 14d-9 and Item 1012(a) of Regulation M-A under the 1934 Act with regard to an Acquisition Proposal; provided that the Board of Directors of Siebel the Company shall not recommend that Siebelthe Company’s stockholders tender shares of capital stock in connection with any tender or exchange offer unless such the Board of Directors shall have determined of the Company determines in good faith by a majority vote, after consultation with considering advice from outside legal counsel to the Company (which may be its current outside legal counsel, Sxxxxxxx & Worcester LLP), that the failure to make take such recommendation action would be reasonably likely to result in a breach of inconsistent with its fiduciary duties under applicable Applicable Law.
(c) The Board of Directors of Siebel the Company shall not take any of the actions referred to in clauses (i) through (viiiii) or the last sentence of Section 6.03(b) unless the preceding subsection unless Siebel Company shall have delivered to Oracle Parent a prior written notice advising Oracle Parent that it intends to take such action. In addition, Siebel the Company shall notify Oracle Parent promptly (but in no event later than 24 hours) after an executive officer or director of the Company first obtains Knowledge of the receipt by Siebel the Company (or any of the Siebel Representativesits advisors) of any Acquisition Proposal, any inquiry that would reasonably be expected to lead to an Acquisition Proposal, Proposal or any request for confidential information relating to Siebel the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries by from any Third Party that has informed Siebel that it a Person acting in good faith would reasonably believe is considering makingseeking to make, or has made, an Acquisition Proposal. Siebel The Company shall provide such notice orally and in writing and shall identify the Third Party making, and the material terms and conditions of, any such Acquisition Proposal, inquiry indication or request. Siebel shall promptly provide Oracle with any non-public information concerning Siebel’s business, present or future performance, financial condition or results of operations, provided to any Qualified Third Party after the date of this Agreement in connection with an Acquisition Proposal made by such Third Party that was not previously provided to Oracle. Siebel The Company shall keep Oracle promptly and Parent reasonably informed, on a reasonably current basis, of the status and material details of any such Acquisition Proposal, inquiry indication or request. Siebel The Company shall, and shall cause its Subsidiaries and the Siebel Representatives advisors, employees and other agents of the Company and any of its Subsidiaries to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to the Original Execution Date with respect to any Acquisition Proposal and shall instruct use its reasonable best efforts to cause any such Third Party (or its agents or advisors) in possession of confidential information about Siebel the Company that was furnished by or on behalf of Siebel with respect to any Acquisition Proposal within the six months prior to the date hereof Company to return or destroy all such information.
Appears in 1 contract
Samples: Merger Agreement (Kla Tencor Corp)
No Solicitation; Other Offers. (a) Neither Siebel nor any After the date hereof and prior to the earlier of the termination of this Agreement and the Acceptance Time, the Company and its Subsidiaries shall, nor shall Siebel not (and the Company shall use its reasonable best efforts to cause its or any of its Subsidiaries authorize Subsidiaries' officers or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants accountants, consultants or other agents, representatives agents or advisors (the “Siebel collectively, "Representatives”") not to), directly or indirectly, (i) solicit, initiate, initiate or knowingly take any action to facilitate or knowingly encourage the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any non-public information relating to Siebel the Company or any of its Subsidiaries to or afford access to the business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries to, any Person with respect to any Third Party that has madeinquiries regarding, or has informed Siebel that it is seeking to makethe making of, an Acquisition Proposal, (iii) fail to make, withdraw, modify or amend in a manner adverse to Parent the Company Board Recommendation (or recommend an Acquisition Proposal or knowingly take any action or make any statement inconsistent with the Company Board Recommendation) (any of the foregoing in this clause (iii), an "Adverse Recommendation Change"), (iv) grant any Third Party waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel the Company or any of its Subsidiaries or amend under the Company Rights Agreement, (v) take any action to render the restrictions on a "control share acquisition" set forth in Section 302A.671 of the MBCA inapplicable to any transaction, (vi) approve any transaction under, or terminate any Person becoming an "interested shareholder" under, Section 302A.673 of the Siebel Rights Plan or redeem the Siebel Rights MBCA or (ivvii) enter into any agreement (except for confidentiality agreementsin principle, referred to in Section 6.04(b)) with any Third Party with respect letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument relating to an Acquisition Proposal made (other than a confidentiality agreement with a Person to whom the Company is permitted to provide information in accordance with Section 7.04(b)). It is agreed that any violation of the restrictions on the Company set forth in this Section by such Third Party, or any other agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate Representative of the Mergers Company or any of its Subsidiaries shall be a breach of this Section by the other transactions contemplated by this AgreementCompany.
(b) Notwithstanding anything to the contrary contained in this AgreementSection 7.04(a), Siebel (through one or more of the Siebel Representatives) or its Board of Directors may, at any time prior to the Siebel Stockholder Approval, Acceptance Time:
(i) the Company, directly or indirectly through its Representatives, may (A) engage in negotiations or discussions with any Third Party (or Person and its Representatives that, subject to the Company's compliance with the representatives of any Third Party) that Section 7.04(a), has made an after the date of this Agreement a bona fide, written Acquisition Proposal not solicited in violation that the Board of Section 6.03(a) if such Acquisition Proposal constitutes Directors reasonably believes is or could reasonably be expected to will lead to a Superior Proposal and (such Third Party, a “Qualified Third Party”), (iiB) furnish to such Qualified Third Party Person or its representatives Representatives non-public information relating to Siebel the Company or any of its Subsidiaries pursuant to an executed a confidentiality agreement containing customary nondisclosure provisions (which need not include “standstill ” or similar provisions) (and a copy of which shall be promptly (in all events within 24 hours) provided for informational purposes only to OracleParent) with such Person with terms no less favorable to the Company than those contained in the Confidentiality Agreement, if, in the case of either clause (A) or (B), (iii) grant a waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel or any of its Subsidiaries, (iv) amend or terminate the Siebel Rights Plan or redeem the Siebel Rights, (v) withdraw the Siebel Board Recommendation or modify the Siebel Board Recommendation in a manner adverse to Oracle (any such action, a “Change in Recommendation”), (vi) terminate this Agreement pursuant to and subject to the terms of Section 9.01(d) and/or (vii) take any action that any court of competent jurisdiction orders Siebel, one or more of the Siebel Representatives or the Board of Directors of Siebel to take, but in each case referred to in the foregoing clauses (iii), (iv) and (v) only if the Board of Directors of Siebel determines in good faith by a majority votefaith, after consultation with its outside legal counsel, that the failure to take such action would be is reasonably likely to result in a breach of its fiduciary duties under applicable Applicable Law. Nothing contained herein ; provided that (1) such confidentiality agreement may contain a less restrictive or no standstill restriction, in which case the Confidentiality Agreement shall prevent be deemed to be amended to contain only such less restrictive provision, or to omit such provision, as applicable, and (2) all such information provided or made available to such Person (to the extent that such information has not been previously provided or made available to Parent) is provided or made available to Parent, as the case may be, substantially concurrent with the time it is provided or made available to such other Person; and
(ii) subject to compliance with Section 7.04(e), the Board of Directors of Siebel from complying with Rule 14e-2(a), Rule 14d-9 and Item 1012(a) of Regulation M-A under the 1934 Act with regard to may make an Acquisition Proposal; provided that Adverse Recommendation Change if the Board of Directors of Siebel shall not recommend that Siebel’s stockholders tender shares of capital stock in connection with any tender or exchange offer unless such Board of Directors shall have determined determines in good faith by a majority votefaith, after consultation with its outside legal counselcounsel (and a financial advisor, in the case of clause (A)), that (A) an Acquisition Proposal constitutes a Superior Proposal and the failure to make take such recommendation would be action is reasonably likely to result in a breach of its fiduciary duties under applicable Applicable Law or (B) in the absence of an Acquisition Proposal, due to material events or changes in circumstances after the date hereof that were neither known to nor reasonably foreseeable by the Company as of or prior to the date hereof, the failure to take such action is reasonably likely to result in a breach of its fiduciary duties under Applicable Law. In addition, nothing contained in this Agreement shall prohibit the Company or the Board of Directors from taking and disclosing to the Company's shareholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the 1934 Act or from making such disclosure to the Company's shareholders which, in the judgment of the Board of Directors, after receiving advice of outside counsel, may be required under Applicable Law (it being agreed that the issuance by the Company or the Board of Directors of a "stop, look and listen" statement pending disclosure of its position, as contemplated by Rules 14d-9 and 14e-2(a) promulgated under the 1934 Act shall not constitute an Adverse Recommendation Change). The furnishing of information or engaging in discussions or negotiations by the Company in accordance with Section 7.04(b)(i) shall not, by themselves, constitute an Adverse Recommendation Change.
(c) The For purposes of this Agreement, "Superior Proposal" means a bona fide, unsolicited written Acquisition Proposal (provided that, for the purposes of this definition references to "25%" in the definition of Acquisition Proposal shall be deemed replaced with reference to "50%") that the Board of Directors determines in good faith by a majority vote, after considering the advice of Siebel shall not take any a financial advisor of nationally recognized reputation and outside legal counsel, would result in a transaction more favorable, from a financial point of view, to the actions referred to in clauses Company's shareholders than the transactions provided hereunder (taking into account, among other things, (i) through (vii) all the terms and conditions of the preceding subsection unless Siebel shall have Acquisition Proposal, including any break-up fees, expense reimbursement provisions and conditions to consummation, the likelihood of consummation without undue delay relative to the transactions contemplated by this Agreement and, if such Acquisition Proposal involves any financing, the likelihood of obtaining such financing and the terms on which such financing may be secured and (ii) any, bona fide, written proposal by Parent to amend the terms of this Agreement delivered to Oracle a the Company prior written notice advising Oracle that it intends to take such action. In addition, Siebel the termination of this Agreement).
(d) The Company shall notify Oracle promptly (but Parent in no event later than 24 hours) writing within one Business Day after an officer or director first obtains Knowledge of the receipt by Siebel (or any of the Siebel Representatives) of any Acquisition Proposal, any inquiry that would reasonably be expected to lead or meaningful communication with respect to an Acquisition Proposal, or any request for confidential information relating to Siebel or any of its Subsidiaries or for access to the business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries Subsidiary by any Third Party Person that has informed Siebel informs the Board of Directors or such Subsidiary that it is considering making, or has made, an Acquisition Proposal. Siebel The written notice shall include the material terms of the Acquisition Proposal or such inquiry, communication or request (including the identity of the Person making such Acquisition Proposal, inquiry, communication or request), and, if in writing, shall include a copy of such Acquisition Proposal, inquiry, communication or request. The Company shall keep Parent reasonably informed of any material changes with respect to such Acquisition Proposal, inquiry, communication or request and will provide Parent as soon as reasonably practicable (but in no event later than two Business Days) after receipt thereof copies of all correspondence and other written material sent or provided to the Company from any Person in connection therewith.
(e) The Board of Directors shall not make an Adverse Recommendation Change in response to a Superior Proposal or exercise its right to terminate this Agreement pursuant to Section 11.01(d)(ii) unless: (i) the Company has promptly notified Parent in writing that the Board of Directors has determined that an Acquisition Proposal is a Superior Proposal or that the Board of Directors intends to make an Adverse Recommendation Change in connection with such Superior Proposal, (ii) such notice orally and (the "Superior Proposal Notice") specifies in writing and shall identify the Third Party making, and reasonable detail (A) the material terms and conditions of, any of such Acquisition Superior Proposal, inquiry or request. Siebel shall promptly provide Oracle with (B) the identity of the Person making such Superior Proposal and (C) if applicable, the terms and conditions of any non-public information concerning Siebel’s businessproposed agreement relating to such Superior Proposal, present or future performance, financial condition or results of operations, provided to any Qualified Third Party after and (iii) a period commencing on the date that the Superior Proposal Notice is deemed to be received by Parent in accordance with Section 12.01 and ending at 5:00 p.m., Central Time, on the third Business Day thereafter (such three-Business Day period, the "Notice Period") has elapsed and the Company has not received from Parent a written proposal to amend the terms of this Agreement that the Board of Directors determines in connection with an Acquisition good faith by a majority vote, after considering the advice of a financial advisor of nationally recognized reputation and outside legal counsel, to be at least as favorable, from a financial point of view, to the Company's shareholders than the transactions described in the Superior Proposal made Notice. It is understood and agreed that, upon the expiration of a Notice Period, if the Company has not received from Parent a written proposal to amend the terms of this Agreement that the Board of Directors determines in good faith by such Third Party that was not previously provided a majority vote, after considering the advice of a financial advisor of nationally recognized reputation and outside legal counsel, to Oracle. Siebel be at least as favorable, from a financial point of view, to the Company's shareholders than the transactions described in the Superior Proposal Notice, the Company shall keep Oracle promptly and reasonably informed, on a reasonably current basis, of have the status and material details of right to terminate this Agreement pursuant to Section 11.01(d)(ii) at any such Acquisition Proposal, inquiry or request. Siebel time.
(f) The Company shall, and shall cause its Subsidiaries and the Siebel its and their Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party Person and its Representatives conducted prior to the date hereof with respect to any Acquisition Proposal. The Company shall promptly request that each Person, if any, that has executed a confidentiality agreement within the 24-month period prior to the date hereof in connection with its consideration of any Acquisition Proposal and shall instruct any such Third Party (return or its agents or advisors) in possession of destroy all confidential information about Siebel that was heretofore furnished to such Person by or on behalf of Siebel with respect to the Company or any Acquisition Proposal within the six months prior of its Subsidiaries (and all analyses and other materials prepared by or on behalf of such Person that contains, reflects or analyzes that information) and that such Person provide a certificate of such return or destruction to the date hereof Company (it being agreed, however, that the Company's obligations pursuant to return or destroy this sentence shall be limited to, and subject to the terms and conditions of, such confidentiality agreement). The Company shall use its reasonable best efforts to secure all such informationcertifications, to the extent it is entitled to such certifications under the terms of the relevant confidentiality agreement, as promptly as practicable.
Appears in 1 contract
No Solicitation; Other Offers. (a) Neither Siebel nor any From and after the date of this Agreement, MDC shall, and shall cause its Subsidiaries shalland its and their respective directors, nor shall Siebel or any of its Subsidiaries authorize or permit any of its or their officers, directorsmembers, employees, investment bankersrepresentatives, agents, attorneys, accountants consultants, contractors, accountants, financial advisors and other advisors (each, a “Representative”), to (i) immediately cease and terminate, and cause to be ceased and terminated, all discussions and negotiations with any other Person (other than Stagwell or its Affiliates) regarding any Alternative Proposal (as defined below) or any inquiry, expression of interest, proposal, offer or request for information that would reasonably be expected to lead to or result in an Alternative Proposal, (ii) terminate access by any other Person (other than Stagwell or its Affiliates) to any physical or electronic data room or other agentsaccess to data or information of MDC, representatives in each case relating to, or advisors in connection with, any Alternative Proposal or any inquiry, expression of interest, proposal, offer or request for information that would reasonably be expected to lead to or result in an Alternative Proposal, (iii) promptly request that each Person that has received confidential information in connection with any Alternative Proposal or any inquiry, expression of interest, proposal, offer or request for information that would reasonably be expected to lead to or result in an Alternative Proposal return to MDC or destroy all confidential information heretofore furnished to such Person by or on behalf of MDC and its Subsidiaries and (iv) enforce, and not waive or modify or release or permit the “Siebel Representatives”release of any Person from, any confidentiality, non-solicitation, no-hire, standstill or similar agreement entered into or amended in respect of any Alternative Proposal or any inquiry, expression of interest, proposal, offer or request for information that would reasonably be expected to lead to or result in an Alternative Proposal unless the MDC Special Committee or the MDC Board concludes in good faith, after consultation with its outside legal counsel, that a failure to take any action described in this clause (iv) would be inconsistent with its fiduciary duties under applicable Law. It is agreed that any violation of the restrictions set forth in this Section 7.06(a) by any Representative of MDC or its Subsidiaries shall constitute a breach of this Section 7.06 by MDC.
(b) From and after the date of this Agreement, except as expressly permitted by Section 7.06(c), MDC shall not, and shall cause its Subsidiaries and its and their respective Representatives not to, directly or indirectly, (i) solicit, initiate, knowingly facilitate assist or knowingly encourage or facilitate (including by way of furnishing confidential information), or engage in discussions or negotiations regarding, any inquiry, expression or interest, request for information, proposal or offer which constitutes or would be reasonably expected to lead to an Alternative Proposal, or the submission of any Acquisition Proposalmaking or consummation thereof, (ii) enter into any letter of intent, memorandum of understanding, agreement in principle or participate in similar Contract with any discussions Person (other than Stagwell or negotiations withits Affiliates) for, furnish any non-public information constituting or otherwise relating to Siebel an Alternative Proposal or any of its Subsidiaries that would reasonably be expected to lead to or afford access to the business, properties, assets, books or records of Siebel or any of its Subsidiaries to any Third Party that has made, or has informed Siebel that it is seeking to make, result in an Acquisition Alternative Proposal, (iii) grant approve, endorse or recommend any Third Party waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel or any of its Subsidiaries or amend or terminate the Siebel Rights Plan or redeem the Siebel Rights Alternative Proposal or (iv) enter into resolve or agree to do any agreement of the foregoing. It is agreed that any material violation of the restrictions set forth in this Section 7.06(b) by any Representative (except for confidentiality agreements, referred to in Section 6.04(b)) with any Third Party with respect to an Acquisition Proposal made by such Third Party, other than Mxxx Xxxx or any other agreementPerson acting at his express direction, arrangement in each instance, directly or understanding requiring it to abandon, terminate indirectly) of MDC or fail to consummate the Mergers or any its Subsidiaries shall constitute a breach of the other transactions contemplated this Section 7.06 by this AgreementMDC.
(bc) Notwithstanding anything to the contrary contained in this AgreementSection 7.06(a) and Section 7.06(b), Siebel (through one or more of the Siebel Representatives) or MDC and its Board of Directors mayRepresentatives shall be entitled, prior to obtaining the Siebel Stockholder MDC Special Meeting Approval, to furnish information regarding MDC or any of its Subsidiaries to, or engage in discussions or negotiations with, any Person in response to an unsolicited, bona fide, written proposal with respect to an Alternative Proposal that is submitted to MDC or its Representatives by or on behalf of such Person (for so long as such Alternative Proposal has not been withdrawn) if (i) engage none of MDC, its Subsidiaries or its or their respective Representatives shall have materially breached the provisions set forth in negotiations this Section 7.06 with respect to such Person, (ii) the MDC Special Committee or discussions the MDC Board shall have determined, in its good faith judgment, after consultation with any Third Party (or with its financial advisor and outside legal counsel, that the representatives of any Third Party) that has made an Acquisition Proposal not solicited in violation of Section 6.03(a) if such Acquisition Proposal proposal constitutes or could is reasonably be expected likely to lead to a Superior Proposal (such Third PartyProposal, a “Qualified Third Party”), and (ii) furnish to such Qualified Third Party or its representatives non-public information relating to Siebel or any of its Subsidiaries pursuant to an executed confidentiality agreement containing customary nondisclosure provisions (which need not include “standstill ” or similar provisions) (and a copy of which shall be promptly (in all events within 24 hours) provided for informational purposes only to Oracle), (iii) grant a waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel or any of its Subsidiaries, (iv) amend or terminate the Siebel Rights Plan or redeem the Siebel Rights, (v) withdraw the Siebel Board Recommendation or modify the Siebel Board Recommendation in a manner adverse to Oracle (any such action, a “Change in Recommendation”), (vi) terminate this Agreement pursuant to and subject to the terms of Section 9.01(d) and/or (vii) take any action that any court of competent jurisdiction orders Siebel, one or more of the Siebel Representatives MDC Special Committee or the MDC Board of Directors of Siebel to takeshall have determined, but in each case referred to in the foregoing clauses (iii), (iv) and (v) only if the Board of Directors of Siebel determines in its good faith by a majority votejudgment, after consultation with its outside legal counsel, that the failure to take such action would be reasonably likely to result in a breach of inconsistent with its fiduciary duties under applicable Law. Nothing contained herein shall prevent the Board of Directors of Siebel from complying with Rule 14e-2(a); provided, Rule 14d-9 and Item 1012(a) of Regulation M-A under the 1934 Act with regard to an Acquisition Proposal; provided that the Board of Directors of Siebel shall MDC may not recommend that Siebel’s stockholders tender shares of capital stock enter into negotiations or discussions or furnish any information in connection with any tender or exchange offer unless such Board Alternative Proposal to any such Person without entering into a confidentiality agreement with such Person, which confidentiality agreement shall contain terms no less favorable to MDC than those contained in the Mutual NDA and an executed copy of Directors which shall have determined be provided promptly (and in good faith by a majority vote, after consultation with its outside legal counsel, that failure any event within twenty-four (24) hours) to make such recommendation would Stagwell. Stagwell shall be reasonably likely entitled to result in a breach of its fiduciary duties under applicable Law.
(c) The Board of Directors of Siebel shall not take any receive notification of the actions referred to in clauses (i) through (vii) identity of the preceding subsection unless Siebel shall have delivered to Oracle a prior written notice advising Oracle that it intends to take such action. In addition, Siebel shall notify Oracle Person promptly (but and in no any event later than 24 hours) after an officer or director first obtains Knowledge of the receipt by Siebel (or any of the Siebel Representatives) of any Acquisition Proposal, any inquiry that would reasonably be expected prior to lead to an Acquisition Proposal, or any request for confidential MDC’s furnishing information relating to Siebel or any of its Subsidiaries or for access to the business, properties, assets, books Person making such Alternative Proposal or records of Siebel or any of its Subsidiaries by any Third Party that has informed Siebel that it is considering making, or has made, an Acquisition ProposalRepresentatives). Siebel MDC shall provide such notice orally and in writing and shall identify the Third Party making, and the material terms and conditions of, any such Acquisition Proposal, inquiry or request. Siebel shall promptly provide Oracle with make available to Stagwell any non-public information concerning Siebel’s business, present MDC or future performance, financial condition or results any of operations, provided its Subsidiaries (to any Qualified Third Party after the date of this Agreement in connection with an Acquisition Proposal made by such Third Party that was extent not previously provided or made available to OracleStagwell) concurrently with it being made available to the Person making such Alternative Proposal or its Representatives.
(d) MDC agrees that it shall notify Stagwell promptly (and in any event within twenty-four (24) hours of receipt) if any inquiry, expression of interest, request for non-public information, proposal or offer related to an Alternative Proposal, or that would be reasonably expected to lead to an Alternative Proposal, is received by, or any such discussions or negotiations are sought to be initiated or continued with, MDC, its Subsidiaries or any of its or their respective Representatives. Siebel Such notice shall be provided in writing and shall provide a reasonably detailed summary of the material terms and conditions of any such inquiry, expression of interest, request for non-public information, proposal or offer (including the identity of the Person making such inquiry, expression of interest, request for non-public information, proposal or offer, together with copies of any related documentation). Thereafter, MDC shall keep Oracle promptly and Stagwell reasonably informed, on a reasonably current basis, of all material developments regarding the status of, and material details changes to the terms and conditions of, any such inquiry, expression of interest, request for non-public information, proposal or offer and any such discussions of negotiations. Nothing contained in this Agreement shall prevent the MDC Board or the MDC Special Committee from making or causing MDC to make a customary “stop, look and listen” communication after the commencement of an Alternative Proposal pursuant to Rule 14e-2 under the Exchange Act or Rule 14d-9(f) under the Exchange Act, in each instance, without such action being considered a Change in Recommendation.
(e) Except as permitted by Section 7.06(f) or Section 7.06(g), neither the MDC Board nor the MDC Special Committee shall (i) (A) withdraw (or qualify or modify in any manner adverse to Stagwell), or publicly propose to withdraw (or qualify or modify in any manner adverse to Stagwell), the MDC Board Recommendation or the MDC Special Committee Recommendation, (B) recommend, adopt, or approve, or propose publicly to recommend, adopt, or approve any Alternative Proposal, (C) fail to include the MDC Board Recommendation or the MDC Special Committee Recommendation in the Combined Proxy Statement/Prospectus or (D) resolve, publicly propose or agree to do any of the foregoing (any action described in this clause (i) being referred to as a “Change in Recommendation”) or (ii) (A) recommend, adopt or approve, or propose publicly to recommend, adopt or approve, or allow MDC or any of its Subsidiaries to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, or other similar Contract constituting or related to, an Alternative Proposal or that would require MDC to abandon, terminate or fail to consummate the Transactions (other than a confidentiality agreement referred to in Section 7.06(c)) (an “Acquisition Agreement”) or (B) resolve, agree or propose to do any of the foregoing.
(f) Notwithstanding anything in this Agreement to the contrary, if, prior to obtaining the MDC Special Meeting Approval, the MDC Special Committee or the MDC Board determines in good faith (after consultation with its outside legal counsel and financial advisors) that (x) the failure to do so would be inconsistent with its fiduciary duties under applicable Law, and (y) an Alternative Proposal constitutes a Superior Proposal, then the MDC Special Committee or the MDC Board, as applicable, may (i) terminate this Agreement pursuant to Section 9.03(b) and cause MDC to enter into an Acquisition Agreement with respect to such Superior Proposal or (ii) make a Change in Recommendation with respect to such Superior Proposal, but in the case of the foregoing clauses (i) and (ii), (A) only if such Superior Proposal has not resulted, directly or indirectly, from a material breach of its or MDC’s obligations pursuant to this Section 7.06, and (B) only if (1) MDC provides at least five (5) Business Days’ written notice to Stagwell (a “Notice of Change in Recommendation”) advising Stagwell that the MDC Special Committee or the MDC Board intends to take such action, specifying (x) a summary of the material terms and conditions of such Superior Proposal, (y) the identity of the Person making such Superior Proposal and providing copies of all relevant documents relating to such Superior Proposal that MDC has received from such Person or its Representatives, including a copy of the most current proposed Acquisition Agreement (if any) (it being understood and agreed that any amendment to the financial terms or other material terms of such Superior Proposal shall require a new Notice of Change in Recommendation and restart the notice period and require compliance with the requirements of this Section 7.06(f)); (2) during a period of five (5) Business Days following Stagwell’s receipt of a Notice of Change in Recommendation (or, in the event of a new Notice of Change in Recommendation as a result of any such Acquisition Proposalamendment, inquiry an extension of three (3) additional Business Days), if requested by Stagwell, MDC and its Representatives shall have negotiated with Stagwell and its Representatives in good faith to make such revisions or request. Siebel shall, adjustments proposed by Stagwell to the terms and shall cause conditions of this Agreement as would enable the MDC Board or the MDC Special Committee to proceed with its Subsidiaries recommendation of this Agreement and the Siebel Representatives toTransactions and not to make such Change in Recommendation; and (3) if applicable, cease immediately and cause to be terminated any and all existing activitiesat the end of such applicable 5- or 3-Business Day period, discussions the MDC Board or negotiationsMDC Special Committee, if any, with any Third Party with respect to any Acquisition Proposal and shall instruct after considering in good faith any such Third Party (revisions or its agents or advisors) in possession adjustments to the terms and conditions of confidential information about Siebel this Agreement that was furnished by or on behalf of Siebel with respect to any Acquisition Proposal within the six months Stagwell, prior to the date hereof expiration of such applicable period, shall have offered in writing, continues to return determine in good faith (after consultation with its outside legal counsel and financial advisors) that (x) the failure to do so would be inconsistent with its fiduciary duties under applicable Law, and (y) any such Alternative Proposal continues to constitute a Superior Proposal.
(g) Other than in connection with an Alternative Proposal, the MDC Special Committee or destroy all the MDC Board may, at any time prior to, but not after, obtaining the MDC Special Meeting Approval, make a Change in Recommendation in response to an Intervening Event (an “Intervening Event Change in Recommendation”), if the MDC Special Committee or the MDC Board, as applicable, determines in good faith (after consultation with its outside legal counsel and financial advisors) that the failure to do so would be inconsistent with its fiduciary duties under applicable Law; provided, that: (A) Stagwell shall have received written notice from MDC of the MDC Special Committee’s or the MDC Board’s intention to make an Intervening Event Change in Recommendation at least five (5) Business Days prior to the taking of such informationaction by the MDC Special Committee or the MDC Board, which notice shall specify the facts and circumstances of the applicable Intervening Event in reasonable detail, (B) during such period and prior to making an Intervening Event Change in Recommendation, if requested by Stagwell, MDC and its Representatives shall have negotiated in good faith with Stagwell and its Representatives regarding any revisions or adjustments proposed by Stagwell to the terms and conditions of this Agreement as would enable the MDC Special Committee or the MDC Board, as applicable, to proceed with its recommendation of this Agreement and the Transactions and not make such Intervening Event Change in Recommendation and (C) the MDC Special Committee or the MDC Board may make an Intervening Event Change in Recommendation only if the MDC Special Committee or the MDC Board, as applicable, after considering in good faith any revisions or adjustments to the terms and conditions of this Agreement that Stagwell shall have, prior to the expiration of the 5-Business Day period, offered in writing, continues to determine in good faith (after consultation with its outside legal counsel and financial advisors) that failure to make an Intervening Event Change in Recommendation would be inconsistent with its fiduciary duties under applicable Law.
(h) As used in this Agreement:
Appears in 1 contract
No Solicitation; Other Offers. (a) Neither Siebel nor any of its Subsidiaries shall, nor shall Siebel or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants or other agents, representatives or advisors (the “Siebel Representatives”) to, directly or indirectly, (i) solicit, initiate, knowingly facilitate or knowingly encourage the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any non-public information relating to Siebel or any of its Subsidiaries to or afford access to the business, properties, assets, books or records of Siebel or any of its Subsidiaries to any Third Party that has made, or has informed Siebel that it is seeking to make, an Acquisition Proposal, (iii) grant any Third Party waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel or any of its Subsidiaries or amend or terminate the Siebel Rights Plan or redeem the Siebel Rights or (iv) enter into any agreement (except for confidentiality agreements, referred to in Section 6.04(b)) with any Third Party with respect to an Acquisition Proposal made by such Third Party, or any other agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Mergers or any of the other transactions contemplated by this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, Siebel (through one or more of the Siebel Representatives) or its Board of Directors may, prior to the Siebel Stockholder Approval, (i) engage in negotiations or discussions with any Third Party (or with the representatives of any Third Party) that has made an Acquisition Proposal not solicited in violation of Section 6.03(a) if such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal (such Third Party, a “Qualified Third Party”), (ii) furnish to such Qualified Third Party or its representatives non-public information relating to Siebel or any of its Subsidiaries pursuant to an executed confidentiality agreement containing customary nondisclosure provisions (which need not include “standstill ” “ or similar provisions) (and a copy of which shall be promptly (in all events within 24 hours) provided for informational purposes only to Oracle), (iii) grant a waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel or any of its Subsidiaries, (iv) amend or terminate the Siebel Rights Plan or redeem the Siebel Rights, (v) withdraw the Siebel Board Recommendation or modify the Siebel Board Recommendation in a manner adverse to Oracle (any such action, a “Change in Recommendation”), (vi) terminate this Agreement pursuant to and subject to the terms of Section 9.01(d) and/or (vii) take any action that any court of competent jurisdiction orders Siebel, one or more of the Siebel Representatives or the Board of Directors of Siebel to take, but in each case referred to in the foregoing clauses (iii), (iv) and (v) only if the Board of Directors of Siebel determines in good faith by a majority vote, after consultation with its outside legal counsel, that failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Law. Nothing contained herein shall prevent the Board of Directors of Siebel from complying with Rule 14e-2(a), Rule 14d-9 and Item 1012(a) of Regulation M-A under the 1934 Act with regard to an Acquisition Proposal; provided that the Board of Directors of Siebel shall not recommend that Siebel’s stockholders tender shares of capital stock in connection with any tender or exchange offer unless such Board of Directors shall have determined in good faith by a majority vote, after consultation with its outside legal counsel, that failure to make such recommendation would be reasonably likely to result in a breach of its fiduciary duties under applicable Law.
(c) The Board of Directors of Siebel shall not take any of the actions referred to in clauses (i) through (vii) of the preceding subsection unless Siebel shall have delivered to Oracle a prior written notice advising Oracle that it intends to take such action. In addition, Siebel shall notify Oracle promptly (but in no event later than 24 hours) after an officer or director first obtains Knowledge of the receipt by Siebel (or any of the Siebel Representatives) of any Acquisition Proposal, any inquiry that would reasonably be expected to lead to an Acquisition Proposal, or any request for confidential information relating to Siebel or any of its Subsidiaries or for access to the business, properties, assets, books or records of Siebel or any of its Subsidiaries by any Third Party that has informed Siebel that it is considering making, or has made, an Acquisition Proposal. Siebel shall provide such notice orally and in writing and shall identify the Third Party making, and the material terms and conditions of, any such Acquisition Proposal, inquiry or request. Siebel shall promptly provide Oracle with any non-public information concerning Siebel’s business, present or future performance, financial condition or results of operations, provided to any Qualified Third Party after the date of this Agreement in connection with an Acquisition Proposal made by such Third Party that was not previously provided to Oracle. Siebel shall keep Oracle promptly and reasonably informed, on a reasonably current basis, of the status and material details of any such Acquisition Proposal, inquiry or request. Siebel shall, and shall cause its Subsidiaries and the Siebel Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party with respect to any Acquisition Proposal and shall instruct any such Third Party (or its agents or advisors) in possession of confidential information about Siebel that was furnished by or on behalf of Siebel with respect to any Acquisition Proposal within the six months prior to the date hereof to return or destroy all such information.
Appears in 1 contract
Samples: Merger Agreement (Oracle Corp /De/)
No Solicitation; Other Offers. (a) Neither Siebel nor any Subject to Section 7.06(c), at all times during the period commencing on the date of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article 9 and the Closing, Fubo shall not, and shall cause its Subsidiaries shall, nor shall Siebel or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants or officers and employees and instruct its other agents, representatives or advisors Representatives (the “Siebel Representatives”in their capacities as such) not to, directly or indirectly, (i) solicit, initiate, knowingly facilitate encourage or knowingly encourage the submission of facilitate, any Acquisition inquiry, proposal or offer that constitutes or would reasonably be expected to lead to an Alternative Proposal, (ii) enter into or participate in furnish to any discussions or negotiations with, furnish any non-public information relating to Siebel Person (other than Hulu or any of its Subsidiaries to Affiliates or any of their respective Representatives), or any Representative thereof, any nonpublic information, or afford to any Person (other than Hulu or any of its Affiliates or any of their respective Representatives) access to the business, properties, assets, books books, records or records other information, or to any personnel, of Siebel Fubo or any of its Subsidiaries to Subsidiaries, in any Third Party that has madesuch case in connection with, or has informed Siebel with the intent to facilitate, the making, submission or announcement of any inquiry, proposal or offer that it is seeking constitutes or would reasonably be expected to make, lead to an Acquisition Alternative Proposal, (iii) grant participate or engage in any Third Party waiver discussions or release under negotiations with any standstill Person, or any Representative thereof, with respect to any inquiry, proposal or offer that constitutes, or would reasonably be expected to lead to, an Alternative Proposal, except to (x) notify such Person that the provisions of this Section 7.06 prohibit any such discussions or negotiations or (y) seek to clarify and understand the terms and conditions of any inquiry, proposal or offer made by any Person solely to determine whether such inquiry, proposal or offer constitutes or could reasonably be expected to lead to a Superior Proposal, (iv) enter into any merger agreement, purchase agreement, letter of intent or similar agreement with respect to an Alternative Proposal (other than an Acceptable Confidentiality Agreement entered into pursuant to Section 7.06(c)), (v) approve any class transaction under, or any third party becoming an “interested shareholder” under Section 607.0901 of equity securities the FBCA or (vi) approve, authorize, agree or publicly announce any intention to do any of Siebel the foregoing. Subject to Section 7.06(c), during the period commencing on the date of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article 9 and the Closing, Fubo shall, and shall cause its directors, officers and employees and instruct its other Representatives (in their capacities as such) to, cease and cause to be terminated any and all discussions or negotiations with any Person (other than Hulu or any of its Affiliates or any of their respective Representatives), or any Representative thereof, conducted prior to the date of this Agreement with respect to any Alternative Proposal submitted as of, or prior to, the date of this Agreement. Within twenty-four (24) hours after the date of this Agreement, Fubo will terminate access by any Person (other than Hulu or any of its Affiliates or any of their respective Representatives) to any physical or electronic data room relating to a potential Alternative Proposal (or prior discussions in respect of a potential Alternative Proposal) and request that each Person (other than Hulu or any of its Affiliates or any of their respective Representatives) that has executed a confidentiality agreement (other than the Confidentiality Agreement) during the twelve (12) months prior to the date hereof relating to a potential Alternative Proposal promptly return to Fubo or destroy pursuant to the terms of such confidentiality agreement all documents and materials containing confidential information of Fubo that has been furnished by Fubo or any of its Representatives to such Person or any of its Representatives; provided that Fubo or the Fubo Board shall be permitted to grant a waiver of any standstill agreement with any Person solely to the extent required to permit such Person to privately make an Alternative Proposal to the Fubo Board, in each case, if the Fubo Board determines in good faith, after consultation with Fxxx’s outside legal counsel, that the failure to take such action would be reasonably expected to be inconsistent with the Fubo Board’s fiduciary duties under applicable Law. Without limiting the generality of the foregoing, Fxxx acknowledges and agrees that, in the event any officer, director or employee of Fubo or any of its Subsidiaries or amend or terminate takes any action that, if taken by Fxxx, would be a breach of this Section 7.06, the Siebel Rights Plan or redeem the Siebel Rights or (iv) enter into any agreement (except for confidentiality agreements, referred to in Section 6.04(b)) with any Third Party with respect to an Acquisition Proposal made taking of such action by such Third Party, or any other agreement, arrangement or understanding requiring it Person shall be deemed to abandon, terminate or fail to consummate the Mergers or any constitute a breach of the other transactions contemplated this Section 7.06 by this AgreementFxxx.
(b) From the date of this Agreement until the earlier to occur of the termination of this Agreement pursuant to Article 9 and the Closing, within twenty-four (24) hours following receipt of an Alternative Proposal, Fubo shall (i) provide Hulu with written notice of such Alternative Proposal and (ii) communicate to Hulu the material terms and conditions of such Alternative Proposal (including any subsequent amendment thereto) and the identity of the Person making such Alternative Proposal. Fubo shall keep Hulu reasonably informed on a reasonably prompt basis with respect to the status of any discussions or negotiations regarding, and of any changes to the material terms and conditions of, any such Alternative Proposal, and shall, within twenty-four (24) hours of receipt or delivery thereof, provide Hulu with the material terms or conditions of any such proposals and any proposed transaction agreements (including all schedules, exhibits and attachments thereto) relating to any such Alternative Proposal and any financing commitments relating thereto.
(c) Notwithstanding anything to the contrary contained set forth in this Section 7.06 or elsewhere in this Agreement, Siebel (through one or more if at any time prior to receipt of the Siebel RepresentativesRequisite Shareholder Approval Fubo or any of its Representatives has received a bona fide, written Alternative Proposal from any Person or group of Persons that did not result from a breach of this Section 7.06 and the Fubo Board determines in good faith, after consultation with Fxxx’s financial advisor(s) or its Board of Directors mayand outside legal counsel, prior to the Siebel Stockholder Approval, (i) engage in negotiations or discussions with any Third Party (or with the representatives of any Third Party) that has made an Acquisition Proposal not solicited in violation of Section 6.03(a) if such Acquisition Alternative Proposal constitutes or could reasonably be expected to lead to a Superior Proposal and, after consultation with Fxxx’s outside legal counsel, that the failure to take such action described in clause (i), (ii) or (iii) below would be reasonably expected to be inconsistent with the Fubo Board’s fiduciary duties under applicable Law, then Fubo and any of its Representatives may (i) enter into an Acceptable Confidentiality Agreement with such Third Party, Person or group of Persons (provided that Fubo shall substantially concurrently provide to Hulu a “Qualified Third Party”copy of such Acceptable Confidentiality Agreement), (ii) furnish information with respect to Fubo and the Fubo Subsidiaries or provide access to the officers, employees, offices, properties, Contracts, books and records of Fubo and the Fubo Subsidiaries to the Person or group of Persons making such Alternative Proposal (provided that (x) Fubo shall substantially concurrently provide or make available to Hulu any information concerning Fubo that is provided to such Qualified Third Party Person or its representatives non-public information relating group of Persons and which was not previously provided or made available to Siebel Hulu and (y) Fubo shall have entered into an Acceptable Confidentiality Agreement with such Person or any group of its Subsidiaries pursuant to an executed confidentiality agreement containing customary nondisclosure provisions (which need not include “standstill ” or similar provisions) (and a copy of which shall be promptly (in all events within 24 hours) provided for informational purposes only to OraclePersons), (iii) grant participate and engage in discussions or negotiations with the Person or group of Persons making such Alternative Proposal regarding such Alternative Proposal, including to clarify the terms and conditions of such Alternative Proposal and (iv) otherwise facilitate such Alternative Proposal or assist such Person or group of Persons making such Alternative Proposal (and its Representatives and financing sources) with such Alternative Proposal. Within twenty-four (24) hours of such determination of the Fubo Board, Fubo shall provide written notice to Hulu of such determination of the Fubo Board made pursuant to the immediately preceding sentence. Notwithstanding anything to the contrary set forth in this Agreement, Fubo shall be permitted to terminate, amend or otherwise modify, waive or fail to enforce, on a waiver or release under confidential and non-public basis, any standstill provision of any confidentiality, “standstill” or similar agreement with respect solely to the extent that such provision prohibits or purports to prohibit a confidential proposal being made to the Fubo Board.
(d) Subject to Section 7.06(b), neither the Fubo Board nor any class of equity securities of Siebel committee thereof shall (i) withdraw, amend, modify or any of its Subsidiaries, (iv) amend or terminate qualify the Siebel Rights Plan or redeem the Siebel Rights, (v) withdraw the Siebel Board Recommendation or modify the Siebel Fubo Board Recommendation in a manner adverse to Oracle Hulu, (ii) publicly approve or recommend an Alternative Proposal, (iii) fail to include the Fubo Board Recommendation in the Proxy Statement when disseminated to the shareholders of Fubo, (iv) if any Alternative Proposal is structured as a tender offer or exchange offer for the outstanding shares of Fubo Common Stock is commenced pursuant to Rule 14d-2 under the Exchange Act (other than by Hulu or an Affiliate of Hulu), fail to recommend, within ten (10) Business Days after such actioncommencement, a “Change in Recommendation”against acceptance by the shareholders of Fubo of such tender offer or exchange offer or (v) publicly propose to do any of the foregoing (each of clauses (i), (vi) terminate this Agreement pursuant to and subject to the terms of Section 9.01(d) and/or (vii) take any action that any court of competent jurisdiction orders Siebelii), one or more of the Siebel Representatives or the Board of Directors of Siebel to take, but in each case referred to in the foregoing clauses (iii), (iv) and (v), a “Fubo Board Recommendation Change”); provided, however, that, notwithstanding anything herein to the contrary, a “stop, look and listen” communication by the Fubo Board or any committee thereof to the shareholders of Fubo pursuant to Rule 14d-9(f) only if of the Exchange Act, any action contemplated by Section 7.06(f)(i) or any substantially similar communication to either of the foregoing, shall not be deemed to be a Fubo Board Recommendation Change or otherwise be prohibited under the terms of Directors this Agreement. Parent and Hulu understand and agree that, for purposes of Siebel this Agreement, a factually accurate public statement by Fubo or the Fubo Board (or a committee thereof), to the extent required by Law, that solely describes Fxxx’s receipt of an Alternative Proposal, the identity of the Person making such Alternative Proposal, and the material terms of such Alternative Proposal will not, in and of itself, be deemed to be (A) a withdrawal, amendment, modification, or qualification or proposal by the Fubo Board (or a committee thereof) to withdraw, amend, modify, or qualify the Fubo Board Recommendation; (B) an adoption, approval or recommendation with respect to such Alternative Proposal or (C) a Fubo Board Recommendation Change.
(e) Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, at any time prior to receipt of the Requisite Shareholder Approval, the Fubo Board may (i) in response to (x) the receipt of a bona fide, written Alternative Proposal received after the date hereof that did not result from a material breach of this Section 7.06 or (y) the occurrence of an Intervening Event, effect a Fubo Board Recommendation Change, or (ii) in response to a bona fide, written Alternative Proposal received after the date hereof that did not result from a material breach of this Section 7.06, enter into a definitive agreement implementing such applicable Alternative Proposal and terminate this Agreement pursuant to Section 9.03(b), provided that (A) the Fubo Board determines in good faith by a majority vote, (after consultation with its outside legal counsel, ) that the failure to take such action would be reasonably likely expected to result in a breach of its be inconsistent with the directors’ fiduciary duties under applicable Law, (B) in the case of receipt of an Alternative Proposal, the Fubo Board determines in good faith (after consultation with Fxxx’s financial advisor(s) and outside legal counsel) that such Alternative Proposal constitutes a Superior Proposal or, in the case of an Intervening Event, that an Intervening Event has occurred, (C) Fubo provides written notice to Hulu at least three (3) Business Days prior to effecting a Fubo Board Recommendation Change or terminating this Agreement pursuant to Section 9.03(b) of its intent to take such action (a “Change of Recommendation Notice”), (D) prior to effecting such Fubo Board Recommendation Change or terminating this Agreement pursuant to Section 9.03(b), Fubo shall, and shall cause its Representatives to, be reasonably available to negotiate with Hulu in good faith (to the extent Hulu desires to negotiate) during such three (3) Business Day period to make such adjustments in the terms and conditions of this Agreement as would obviate the basis for a Fubo Board Recommendation Change or the termination of this Agreement pursuant to Section 9.03(b) and (E) no earlier than the end of such three (3) Business Day period, the Fubo Board determines in good faith (after consultation with Fxxx’s outside legal counsel), after considering any amendments to the terms and conditions of this Agreement proposed by Hulu in a binding written offer irrevocably made by Hulu, that the failure to take such action would be reasonably expected to be inconsistent with the directors’ fiduciary duties under applicable Law (and, in the case of receipt of such Alternative Proposal, after consultation with Fxxx’s financial advisor(s) and outside legal counsel, that such Alternative Proposal continues to constitute a Superior Proposal). Nothing contained Following delivery of a Change of Recommendation Notice in the case of (x) the receipt of a Superior Proposal, in the event of any change to the financial terms (including any change to the amount or form of consideration payable) or other revision to the terms or conditions of such Alternative Proposal or (y) the occurrence of an Intervening Event, in the event of any change with respect to such Intervening Event, Fubo shall provide a new Change of Recommendation Notice to Hulu, and any Fubo Board Recommendation Change or termination of this Agreement pursuant to Section 9.03(b) following delivery of such new Change of Recommendation Notice shall again be subject to clause (C) and clause (D) of the immediately preceding sentence for a period of two (2) Business Days.
(f) Notwithstanding anything herein to the contrary, nothing in this Agreement shall prevent prohibit Fubo or the Fubo Board from (i) taking and disclosing to the shareholders of Directors of Siebel from Fubo a position contemplated by Rule 14e-2(a) under the Exchange Act or complying with Rule 14e-2(a), the provisions of Rule 14d-9 and Item 1012(a) of Regulation M-A promulgated under the 1934 Exchange Act; (ii) making any “stop, look and listen” disclosure to the shareholders of Fubo pursuant to Rule 14d-9(f) promulgated under the Exchange Act with regard (or any similar communication); or (iii) making any disclosure to an Acquisition Proposal; provided the shareholders of Fubo that the Fubo Board of Directors of Siebel shall not recommend that Siebel’s stockholders tender shares of capital stock in connection with any tender or exchange offer unless such Board of Directors shall have has determined in good faith by a majority vote, (after consultation with its outside legal counsel, ) that the failure to make such recommendation disclosure would be reasonably likely expected to result in a breach of be inconsistent with its fiduciary duties under applicable Law; provided that nothing in the foregoing will be deemed to permit the Fubo Board to effect a Fubo Board Recommendation Change other than in accordance with Section 7.06(e).
(c) The Board of Directors of Siebel shall not take any of the actions referred to in clauses (i) through (vii) of the preceding subsection unless Siebel shall have delivered to Oracle a prior written notice advising Oracle that it intends to take such action. In addition, Siebel shall notify Oracle promptly (but in no event later than 24 hours) after an officer or director first obtains Knowledge of the receipt by Siebel (or any of the Siebel Representatives) of any Acquisition Proposal, any inquiry that would reasonably be expected to lead to an Acquisition Proposal, or any request for confidential information relating to Siebel or any of its Subsidiaries or for access to the business, properties, assets, books or records of Siebel or any of its Subsidiaries by any Third Party that has informed Siebel that it is considering making, or has made, an Acquisition Proposal. Siebel shall provide such notice orally and in writing and shall identify the Third Party making, and the material terms and conditions of, any such Acquisition Proposal, inquiry or request. Siebel shall promptly provide Oracle with any non-public information concerning Siebel’s business, present or future performance, financial condition or results of operations, provided to any Qualified Third Party after the date of this Agreement in connection with an Acquisition Proposal made by such Third Party that was not previously provided to Oracle. Siebel shall keep Oracle promptly and reasonably informed, on a reasonably current basis, of the status and material details of any such Acquisition Proposal, inquiry or request. Siebel shall, and shall cause its Subsidiaries and the Siebel Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party with respect to any Acquisition Proposal and shall instruct any such Third Party (or its agents or advisors) in possession of confidential information about Siebel that was furnished by or on behalf of Siebel with respect to any Acquisition Proposal within the six months prior to the date hereof to return or destroy all such information.
Appears in 1 contract
No Solicitation; Other Offers. (a) Neither Siebel Except as permitted by Section 6.03(b), neither the Company nor any of its Subsidiaries shall, nor shall Siebel the Company or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants accountants, consultants or other agents, representatives agents or advisors (the “Siebel Representatives”) to, directly or indirectly, (i) solicit, initiate, initiate or take any action to knowingly facilitate or knowingly encourage the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any non-public nonpublic information relating to Siebel the Company or any of its Subsidiaries to or afford access to the business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries to knowingly facilitate, or otherwise cooperate in any way with, any Third Party that has made, or has informed Siebel that it is seeking the Company of any intention to make, or has publicly announced an intention to make, an Acquisition Proposal, (iii) (A) amend or grant any Third Party waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel the Company or any of its Subsidiaries or amend (B) approve any transaction under, or terminate the Siebel Rights Plan or redeem the Siebel Rights any Person becoming an “interested stockholder” under, Section 203 of Delaware Law or (iv) enter into any agreement (except for confidentiality agreements, referred to in Section 6.04(b)) with any Third Party with respect to an Acquisition Proposal made by such Third Party, or any (other agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Mergers or any of the other transactions than a confidentiality agreement as contemplated by this AgreementSection 6.03(b)) .
(b) Notwithstanding anything to the contrary contained in this Agreementforegoing, Siebel (the Company, directly or indirectly through one advisors, agents or more of the Siebel Representatives) or its Board of Directors mayother intermediaries, prior to the Siebel Stockholder Approval, may (i) engage in negotiations or discussions with any Third Party (or that, subject to the Company’s compliance with the representatives of any Third Party) that Section 6.03(a), has made an Acquisition Proposal not solicited that the Board of Directors of the Company has determined in violation good faith (after consultation with a financial advisor of Section 6.03(anationally recognized reputation) if such Acquisition constitutes a Superior Proposal constitutes or could reasonably be expected to lead to a Superior Proposal (such Third Party, a “Qualified Third Party”), and/or (ii) furnish to such Qualified Third Party or its representatives non-public nonpublic information relating to Siebel the Company or any of its Subsidiaries pursuant to an executed a confidentiality agreement containing customary nondisclosure provisions with terms no less favorable to the Company than those contained in the Confidentiality Agreement dated October 13, 2004 between Parent and the Company (which need not include the “standstill ” or similar provisionsConfidentiality Agreement”) (and it being understood that such confidentiality agreement shall not be required to contain a copy of which shall be promptly (in all events within 24 hours) provided for informational purposes only to Oraclestandstill provision), (iii) grant a waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel or any of its Subsidiaries, (iv) amend or terminate the Siebel Rights Plan or redeem the Siebel Rights, (v) withdraw the Siebel Board Recommendation or modify the Siebel Board Recommendation in a manner adverse to Oracle (any such action, a “Change in Recommendation”), (vi) terminate this Agreement pursuant to and subject . Notwithstanding anything to the terms of Section 9.01(d) and/or (vii) take any action that any court of competent jurisdiction orders Siebelcontrary in this Agreement, one or more prior to receipt of the Siebel Representatives or Company Stockholder Approval, the Board of Directors of Siebel the Company shall be permitted to take, but in each case referred to in the foregoing clauses (iii), (iv) and (v) only make an Adverse Recommendation Change if the Board of Directors of Siebel the Company determines in good faith by a majority votefaith, after consultation with its outside legal counselcounsel to the Company, that failure to it must take such action would be reasonably likely to result in a breach of comply with its fiduciary duties under applicable Lawlaw. Nothing contained herein shall prevent the Board of Directors of Siebel the Company from complying with Rule 14e-2(a), Rule 14d-9 and Item 1012(aRule 14e-2(a) of Regulation M-A under the 1934 Act with regard to an Acquisition Proposal; provided that the Board of Directors of Siebel shall not recommend that Siebel’s stockholders tender shares of capital stock in connection with any tender Proposal or exchange offer unless such Board of Directors shall have determined in good faith otherwise making disclosure required by a majority vote, after consultation with its outside legal counsel, that failure to make such recommendation would be reasonably likely to result in a breach of its fiduciary duties under applicable Lawlaw.
(c) The Board of Directors of Siebel the Company shall not take any of the actions referred to in clauses (iSection 6.03(b) through (vii) of unless the preceding subsection unless Siebel Company shall have delivered to Oracle Parent a prior written notice advising Oracle Parent that it intends to take such action. In addition, Siebel the Company shall notify Oracle Parent promptly (but in no event later than 24 hours) after an officer or director first obtains Knowledge of the receipt by Siebel the Company (or any of the Siebel Representativesits advisors) of any Acquisition Proposal, any inquiry that would reasonably be expected to lead to an Acquisition Proposal, Proposal or any request for confidential nonpublic information relating to Siebel the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries by any Third Party that has informed Siebel that it is considering makingmade, or has madeinformed the Company of any intention to make, or has publicly announced an intention to make, an Acquisition Proposal. Siebel The Company shall provide such notice orally and in writing and shall identify the Third Party making, and the material terms and conditions of, any such Acquisition Proposal, inquiry Proposal or request. Siebel shall promptly provide Oracle with any non-public information concerning Siebel’s business, present or future performance, financial condition or results of operations, provided to any Qualified Third Party after the date of this Agreement in connection with an Acquisition Proposal made by such Third Party that was not previously provided to Oracle. Siebel The Company shall keep Oracle promptly and reasonably Parent informed, on a reasonably current basis, of the status and material details of any such Acquisition Proposal, inquiry Proposal or request. Siebel The Company shall, and shall cause its Subsidiaries and the Siebel Representatives advisors, employees and other agents of the Company and any of its Subsidiaries to, cease immediately and cause to be terminated any and all existing activities, discussions or and negotiations, if any, with any Third Party conducted prior to the date hereof with respect to any Acquisition Proposal and shall instruct use its reasonable best efforts to cause any such Third Party (or its agents or advisors) in possession of confidential information about Siebel the Company that was furnished by or on behalf of Siebel with respect to any Acquisition Proposal within the six months prior to the date hereof Company to return or destroy all such information.
Appears in 1 contract
No Solicitation; Other Offers. (a) Neither Siebel From and after the date of this Agreement, neither the Company nor any of its Subsidiaries shall, nor shall Siebel the Company or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants accountants, consultants or other agents, representatives agents or advisors (the “Siebel Representatives”) to, directly or indirectly, (i) solicit, initiate, knowingly initiate or take any action to facilitate or knowingly encourage the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any non-public information relating to Siebel the Company or any of its Subsidiaries to or afford access to the business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries to to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that has madenotified the Board of Directors of the Company or any officer of the Company or any of the Company’s advisors (each such Person and the Board of Directors of the Company, a “Company Representative”) that it is, or has informed Siebel that it is to the knowledge of the Company is, seeking to make, or has made, an Acquisition Proposal, in each such case, in connection with such Acquisition Proposal, (iii) grant any Third Party waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel the Company or any of its Subsidiaries or Subsidiaries, (iv) amend or terminate the Siebel Rights Plan grant any waiver or release or approve any transactions or redeem Rights under the Siebel Rights Agreement (except as contemplated herein with respect to the Merger) or (ivv) enter into any agreement (except for confidentiality agreements, referred to in Section 6.04(b)) with any Third Party with respect to an Acquisition Proposal made by such Third Party, or any other agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Mergers or any of the other transactions contemplated by this AgreementProposal.
(b) Notwithstanding anything to the contrary contained in this Agreementforegoing, Siebel (through one or more of the Siebel Representatives) or its Board of Directors of the Company, directly or indirectly through advisors, agents or other intermediaries, may, at any time prior to the Siebel Stockholder Approval, adoption and approval of this Agreement by the Company’s stockholders: (A) (i) engage subject to the Company’s compliance with Section 6.04(a)(i), enter into or participate in any discussions or negotiations or discussions with any Third Party (or with the representatives of any Third Party) that has made an Acquisition Proposal not solicited that the Board of Directors of the Company determines in violation of Section 6.03(a) if such Acquisition Proposal good faith by a majority vote constitutes or could is reasonably be expected to lead to result in a Superior Proposal (such Third Party, a “Qualified Third Party”)Proposal, (ii) furnish to such Qualified Third Party or its representatives non-public nonpublic information relating to Siebel the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to such Third Party, in each case pursuant to an executed a confidentiality agreement containing customary nondisclosure provisions (which need not include “standstill ” or similar provisions) (and a copy of which shall be promptly (in all events within 24 hours) provided for informational purposes only to Oracle)Parent) with terms no less favorable to the Company than those contained in the Confidentiality Agreement, or otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by such Third Party, in each case in a manner no more favorable to such Third Party than the cooperation or assistance given to Parent or the efforts to facilitate or encourage any effort by Parent, (iii) following receipt of a Superior Proposal, determine not to make or withdraw or modify in a manner adverse to Parent its recommendation to its stockholders referred to in Section 6.02 hereof and/or (iv) take any non-appealable, final action that any court of competent jurisdiction orders the Company to take, but in each case referred to in the foregoing clauses (i) through (iii) only if the Board of Directors of the Company determines in good faith by a majority vote, after considering advice from outside legal counsel to the Company of nationally recognized reputation, that failure to take such action is reasonably likely to result in a breach of its fiduciary duties under applicable law; or (B) grant a any waiver or release to any Third Party under any standstill or similar agreement with respect to any class of equity securities of Siebel the Company or any of its Subsidiaries, (iv) amend or terminate the Siebel Rights Plan or redeem the Siebel Rights, (v) withdraw the Siebel Board Recommendation or modify the Siebel Board Recommendation in a manner adverse to Oracle (any such action, a “Change in Recommendation”), (vi) terminate this Agreement pursuant to and subject to the terms of Section 9.01(d) and/or (vii) take any action that any court of competent jurisdiction orders Siebel, one or more of the Siebel Representatives or the Board of Directors of Siebel to take, but in each case referred to in the foregoing clauses (iii), (iv) and (v) only Subsidiaries if the Board of Directors of Siebel the Company first determines in good faith by a majority votevote that such Third Party intends to make a Superior Proposal, after consultation with its outside legal counsel, provided that failure such waiver or release relates only to take the standstill provisions of such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Lawagreement. Nothing contained herein shall prevent the Board of Directors of Siebel the Company from complying with Rule 14e-2(a), Rule 14d-9 and Item 1012(a) of Regulation M-A under the 1934 Act with regard to an Acquisition Proposal; provided that the Board of Directors of Siebel shall not recommend that Siebel’s stockholders tender shares of capital stock in connection with any tender or exchange offer unless such Board of Directors shall have determined in good faith by a majority vote, after consultation with its outside legal counsel, that failure to make such recommendation would be reasonably likely to result in a breach of its fiduciary duties under applicable Law.
(c) The Board of Directors of Siebel the Company shall not take any of the actions referred to in clauses (i) through (viiiv) of the preceding subsection unless Siebel the Company shall have delivered to Oracle a Parent prior written notice advising Oracle Parent that it intends to take such action. In addition, Siebel the Company shall notify Oracle Parent promptly (but in no event later than 24 hours) after an officer or director first obtains Knowledge of the receipt by Siebel (or any of the Siebel Representatives) Company Representative of any Acquisition Proposal, any inquiry notification to any Company Representative that would reasonably be expected to lead to a Third Party is considering making an Acquisition Proposal, Proposal or of any request received by any Company Representative for confidential information relating to Siebel the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries by any Third Party that has informed Siebel made, or that has notified any Company Representative that it is is, or to the knowledge of the Company is, considering making, or has made, an Acquisition Proposal. Siebel The Company shall provide such notice orally and in writing in accordance with Section 11.01 and shall identify the Third Party makingmaking any such Acquisition Proposal, notification or request, and the material terms and conditions of, of any such Acquisition Proposal, inquiry Proposal or requestnotification. Siebel shall promptly provide Oracle with any non-public information concerning Siebel’s business, present or future performance, financial condition or results of operations, provided to any Qualified Third Party after the date of this Agreement in connection with an Acquisition Proposal made by such Third Party that was not previously provided to Oracle. Siebel The Company shall keep Oracle promptly and reasonably Parent fully informed, on a reasonably current prompt basis, of any material change in the status and material or details of any such Acquisition Proposal, inquiry Proposal or requestnotification. Siebel The Company shall, and shall cause its Subsidiaries and the Siebel Representatives advisors, employees and other agents of the Company and any of its Subsidiaries to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to the date hereof with respect to any Acquisition Proposal and shall instruct use its reasonable best efforts to cause any such Third Party (or its agents or advisors) in possession of confidential information about Siebel the Company that was furnished by or on behalf of Siebel with respect to any Acquisition Proposal within the six months prior to the date hereof Company to return or destroy all such informationinformation (to the extent required by such confidentiality agreements with such Third Party), unless the Company has previously received a certification from any such Third Party that such confidential information has been returned or destroyed.
Appears in 1 contract
Samples: Merger Agreement (Morgan Stanley)
No Solicitation; Other Offers. (a) Neither Siebel the Company nor any of its Subsidiaries shall, nor shall Siebel the Company or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants accountants, consultants or other agents, representatives agents or advisors (the “Siebel Representatives”) to, directly or indirectly, (i) solicit, initiate, knowingly initiate or take any action to facilitate or knowingly encourage the submission of any Acquisition Proposal, (ii) enter into or participate engage in any discussions or negotiations with, furnish any non-public nonpublic information relating to Siebel the Company or any of its Subsidiaries to or afford access to the business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries to to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that has made, or has informed Siebel that it is seeking to make, or has made, an Acquisition Proposal, (iii) grant any Third Party waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel the Company or any of its Subsidiaries or amend or terminate the Siebel Rights Plan or redeem the Siebel Rights or (iv) enter into any agreement (except for confidentiality agreements, referred to in Section 6.04(b)) with any Third Party with respect to an Acquisition Proposal made by such Third Party, (other than a confidentiality agreement in compliance with Section 6.03(b)(ii) or a letter of intent or any other agreement, arrangement agreement or understanding requiring it to abandon, terminate or fail to consummate the Mergers or contract accepting any of the other transactions contemplated by this AgreementSuperior Proposal in accordance with Section 10.01(d)).
(b) Notwithstanding anything to the contrary contained in this Agreementforegoing, Siebel (through one or more of the Siebel Representatives) or its Board of Directors mayof the Company, prior to the Siebel Stockholder Approvaldirectly or indirectly through advisors, agents or other intermediaries, may (i) subject to the Company's compliance with Sections 6.03(a) and 6.03(c), engage in negotiations or discussions with any Third Party (or with the representatives of any Third Party) that has made an submits a bona fide, unsolicited written Acquisition Proposal not solicited in violation that the Board of Section 6.03(a) if such Acquisition Proposal constitutes or could Directors reasonably be expected to believes will lead to a Superior Proposal (such Third Party, a “Qualified Third Party”)Proposal, (ii) furnish to such Qualified that Third Party or its representatives non-public nonpublic information relating to Siebel the Company or any of its Subsidiaries pursuant to an executed a confidentiality agreement containing customary nondisclosure provisions with terms no less favorable to the Company than those contained in the Confidentiality Agreement dated as of March 3, 2004 between the Company and Parent (which need not include “standstill ” or similar provisionsthe "CONFIDENTIALITY AGREEMENT") (and a copy of which shall be promptly (in all events within 24 hours) provided for informational purposes only to OracleParent), (iii) grant a waiver or release under following receipt of any standstill or similar agreement with respect such Acquisition Proposal, fail to any class of equity securities of Siebel or any of its Subsidiariesmake, (iv) amend or terminate the Siebel Rights Plan or redeem the Siebel Rightswithdraw, (v) withdraw the Siebel Board Recommendation or modify the Siebel Board Recommendation in a manner adverse to Oracle (any such action, a “Change Parent its recommendation to its stockholders referred to in Recommendation”), (vi) terminate Section 6.02 of this Agreement pursuant or fail to and subject to call the terms Company Stockholder Meeting in accordance with Section 6.02 of Section 9.01(d) this Agreement and/or (viiiv) take any non-appealable, final action that any court of competent jurisdiction orders Siebel, one or more of the Siebel Representatives or the Board of Directors of Siebel Company to take, but in each case referred to in the foregoing clauses (iii), i) through (iv) and (v) only if the Board of Directors of Siebel the Company determines in good faith by a majority votefaith, after consultation with its outside legal counsel, that failure to take such action would be reasonably is likely to result be required in a breach of order for its directors to comply with their fiduciary duties under applicable Lawlaw. Nothing contained herein in this Agreement shall prevent the Board of Directors of Siebel the Company from complying with Rule 14e-2(a), Rule 14d-9 and Item 1012(a) of Regulation M-A under the 1934 Act with regard to an Acquisition Proposal; provided that the Board of Directors of Siebel shall not recommend that Siebel’s stockholders tender shares of capital stock in connection with any tender or exchange offer unless such Board of Directors shall have determined in good faith by a majority vote, after consultation with its outside legal counsel, that failure to make such recommendation would be reasonably likely to result in a breach of its fiduciary duties under applicable Law.
(c) The Board of Directors of Siebel the Company shall not take any of the actions referred to in clauses (iSections 6.03(b)(i) through (viib)(iv) of unless the preceding subsection unless Siebel Company shall have delivered to Oracle Parent, no later than substantially contemporaneously with the taking of that action, a prior written notice advising Oracle Parent that it is taking (or intends to take such take) that action, and the Company shall continue to keep Parent reasonably current with any developments after taking that action. In addition, Siebel the Company shall notify Oracle Parent promptly (but in no event later than 24 hours) after an officer or director first obtains Knowledge of the receipt by Siebel the Company (or any of the Siebel Representativesits advisors) of any Acquisition Proposal, any inquiry that would reasonably be expected to lead to an Acquisition Proposal, Proposal or of any request for confidential information relating to Siebel the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries (other than such components of such businesses, properties or assets that are generally accessible to the public) by any Third Party that has informed Siebel that it is considering making, or has made, an Acquisition Proposal. Siebel The Company shall provide such that notice orally and in writing and shall identify the Third Party making, and the material terms and conditions of, any such Acquisition Proposal, inquiry indication or request. Siebel shall promptly provide Oracle with any non-public information concerning Siebel’s business, present or future performance, financial condition or results of operations, provided to any Qualified Third Party after the date of this Agreement in connection with an Acquisition Proposal made by such Third Party that was not previously provided to Oracle. Siebel The Company shall keep Oracle promptly and reasonably informedParent informed in all material respects, on a reasonably current prompt basis, of the status and material details of any such Acquisition Proposal, inquiry indication or request. Siebel The Company shall, and shall cause its Subsidiaries and the Siebel Representatives advisors, employees and other agents of the Company and its Subsidiaries to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to the date of this Agreement with respect to any Acquisition Proposal and shall instruct use all commercially reasonable efforts to cause any such Third Party party (or its agents or advisors) in possession of confidential information about Siebel the Company that was furnished by or on behalf of Siebel with respect to any Acquisition Proposal within the six months prior to the date hereof Company to return or destroy all such of that information.
Appears in 1 contract
Samples: Merger Agreement (Vans Inc)
No Solicitation; Other Offers. (a) Neither Siebel Subject to Section 6.4(b), neither the Company nor any of its Subsidiaries shall, nor shall Siebel the Company or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants accountants, consultants or other agents, representatives agents or advisors (the “Siebel Representatives”) to, directly or indirectly, (i) solicit, initiate, knowingly initiate or take any action intended to facilitate or knowingly encourage the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, or furnish any non-public nonpublic information relating to Siebel or any of its Subsidiaries to or afford access to the business, properties, assets, books or records of Siebel Company or any of its Subsidiaries to any Third Party that has made, or has informed Siebel that it the Company is aware is seeking to make, or has made, an Acquisition Proposal, (iii) fail to make, withdraw or modify in a manner adverse to Parent the Company Board Recommendation (or recommend an Acquisition Proposal) (any of the foregoing in this clause (iii), an “Adverse Recommendation Change”), (iv) grant any Third Party waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel the Company or any of its Subsidiaries or amend or terminate the Siebel Rights Plan or redeem the Siebel Rights Subsidiary Securities or (ivv) enter into any agreement in principle, letter of intent, term sheet or other similar instrument relating to an Acquisition Proposal.
(except b) Notwithstanding the foregoing, prior to receiving the Company Stockholder Approval, the Board of Directors of the Company (which, for confidentiality agreements, referred to in purposes of this Section 6.04(b)) with 6.4 shall include any Third Party committee thereof formed specifically for the purpose of negotiating with respect to an Acquisition Proposal made by such Third Partyor taking the actions contemplated hereby), directly or any indirectly through advisors, agents or other agreementintermediaries, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Mergers or any of the other transactions contemplated by this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, Siebel (through one or more of the Siebel Representatives) or its Board of Directors may, prior to the Siebel Stockholder Approval, may (i) engage in negotiations or discussions with any Third Party (or with the representatives of any Third Party) that has made an a bona fide written Acquisition Proposal not solicited in violation that the Board of Section 6.03(a) if such Acquisition Proposal constitutes or could Directors of the Company reasonably be expected to believes will lead to a Superior Proposal (such Third Party, a “Qualified Third Party”)Proposal, (ii) thereafter furnish to such Qualified Third Party or its representatives non-public nonpublic information relating to Siebel the Company or any of its Subsidiaries pursuant to an executed a confidentiality agreement containing customary nondisclosure provisions (which need not include “standstill ” or similar provisions) (and a copy of which shall be promptly (with terms no less favorable to the Company than those contained in all events within 24 hours) provided for informational purposes only to Oracle)the Confidentiality Agreement, (iii) grant a waiver in response to the receipt of an unsolicited bona fide written Acquisition Proposal, make an Adverse Recommendation Change (or release under any standstill or similar agreement with respect to any class of equity securities of Siebel or any of its Subsidiariesnot include the Company Board Recommendation in the Proxy Statement), (iv) amend or terminate other than in connection with an Acquisition Proposal, if the Siebel Rights Plan or redeem Board of Directors of the Siebel RightsCompany determines in good faith by a majority vote, after considering advice from outside legal counsel to the Company, that it is required to do so in order to comply with its fiduciary duties under applicable Law, make an Adverse Recommendation Change and/or (v) withdraw the Siebel Board Recommendation or modify the Siebel Board Recommendation in a manner adverse to Oracle (any such action, a “Change in Recommendation”), (vi) terminate this Agreement pursuant to and subject to the terms of Section 9.01(d) and/or (vii) take any nonappealable, final action that any court of competent jurisdiction orders Siebel, one or more of the Siebel Representatives or the Board of Directors of Siebel Company to take, but in each case referred to in the foregoing clauses (i) through (iii), (iv) and (v) only if the Board of Directors of Siebel the Company determines in good faith by a majority vote, after consultation with its considering advice from outside legal counselcounsel to the Company, that failure to take such action not doing so would be reasonably likely to result in a breach of inconsistent with its fiduciary duties under applicable Law. Nothing contained herein shall prevent the Board of Directors of Siebel the Company from complying with Rule 14e-2(a), ) or Rule 14d-9 and Item 1012(a) of Regulation M-A under the 1934 Exchange Act with regard to an Acquisition Proposal; provided provided, however, that the Board of Directors of Siebel the Company shall not recommend that Siebelthe Company’s stockholders tender shares of capital stock in connection with any tender or exchange offer unless such the Board of Directors shall have determined of the Company determines in good faith by a majority votefaith, after consultation with its considering advice from outside legal counselcounsel to the Company, that failure to make such recommendation not do so would be reasonably likely to result in a breach of inconsistent with its fiduciary duties under applicable Law.
(c) The Board of Directors of Siebel the Company shall not take any of the actions referred to in clauses (iiii) through and (viiiv) or the last sentence of Section 6.4(b) unless the preceding subsection unless Siebel Company shall have delivered to Oracle Parent a prior written notice advising Oracle Parent that it intends to take such action. In addition, Siebel the Company shall notify Oracle Parent promptly (but in no event later than 24 48 hours) after an officer or director first obtains Knowledge of the receipt by Siebel the Company (or any of the Siebel Representativesits advisors) of any Acquisition Proposal, any inquiry that would reasonably be expected to lead to an Acquisition Proposal, Proposal or any request for confidential information relating to Siebel the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of Siebel or regarding any of its Subsidiaries by any Third Party that has informed Siebel that it is considering making, or has made, an Acquisition Proposal. Siebel The Company shall provide such notice orally and or in writing (and, additionally, by electronic mail) and shall identify the Third Party making, and the material terms and conditions of, any such Acquisition Proposal, inquiry indication or request. Siebel shall promptly provide Oracle with any non-public information concerning Siebel’s business, present or future performance, financial condition or results of operations, provided to any Qualified Third Party after the date of this Agreement in connection with an Acquisition Proposal made by such Third Party that was not previously provided to Oracle. Siebel The Company shall keep Oracle promptly and Parent reasonably informed, on a reasonably current basis, of the status and material details of any such Acquisition Proposal, inquiry Proposal or request. Siebel .
(d) The Company shall, and shall cause its Subsidiaries and the Siebel Representatives advisors, employees and other agents of the Company and any of its Subsidiaries to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to the date hereof with respect to any Acquisition Proposal and shall instruct any such Third Party (or its agents or advisors) in possession of confidential information about Siebel the Company that was furnished by or on behalf of Siebel with respect to any Acquisition Proposal within the six months prior to the date hereof Company to return or destroy all such information.
(e) For purposes of this Agreement, a “Superior Proposal” shall mean any bona fide, written Acquisition Proposal for greater than 50% of the then outstanding shares of Company Common Stock that the Board of Directors of the Company determines in its good faith judgment by a majority vote (after considering the advice of a financial advisor of nationally recognized reputation and taking into account all the terms and conditions of the Acquisition Proposal, including any break-up fees, expense reimbursement provisions and conditions to consummation) to be more favorable to the Company’s stockholders than the terms of the Merger and is reasonably likely to be consummated.
Appears in 1 contract
No Solicitation; Other Offers. (a) Neither Siebel Except as permitted by Section 6.03(b), neither the Company nor any of its Subsidiaries shall, nor shall Siebel the Company or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants accountants, consultants or other agents, representatives agents or advisors (the “Siebel Representatives”) to, directly or indirectly, (i) solicit, initiate, initiate or take any action to knowingly facilitate or knowingly encourage the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any non-public nonpublic information relating to Siebel the Company or any of its Subsidiaries to or afford access to the business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries to knowingly facilitate, or otherwise cooperate in any way with, any Third Party that has made, or has informed Siebel that it is seeking the Company of any intention to make, or has publicly announced an Table of Contents intention to make, an Acquisition Proposal, (iii) (A) amend or grant any Third Party waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel the Company or any of its Subsidiaries or amend (B) approve any transaction under, or terminate the Siebel Rights Plan or redeem the Siebel Rights any Person becoming an “interested stockholder” under, Section 203 of Delaware Law or (iv) enter into any agreement (except for confidentiality agreements, referred to in Section 6.04(b)) with any Third Party with respect to an Acquisition Proposal made by such Third Party, or any (other agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Mergers or any of the other transactions than a confidentiality agreement as contemplated by this AgreementSection 6.03(b)).
(b) Notwithstanding anything to the contrary contained in this Agreementforegoing, Siebel (the Company, directly or indirectly through one advisors, agents or more of the Siebel Representatives) or its Board of Directors mayother intermediaries, prior to the Siebel Stockholder Approval, may (i) engage in negotiations or discussions with any Third Party (or that, subject to the Company’s compliance with the representatives of any Third Party) that Section 6.03(a), has made an Acquisition Proposal not solicited that the Board of Directors of the Company has determined in violation good faith (after consultation with a financial advisor of Section 6.03(anationally recognized reputation) if such Acquisition constitutes a Superior Proposal constitutes or could reasonably be expected to lead to a Superior Proposal (such Third Party, a “Qualified Third Party”), and/or (ii) furnish to such Qualified Third Party or its representatives non-public nonpublic information relating to Siebel the Company or any of its Subsidiaries pursuant to an executed a confidentiality agreement containing customary nondisclosure provisions with terms no less favorable to the Company than those contained in the Confidentiality Agreement dated October 13, 2004 between Parent and the Company (which need not include the “standstill ” or similar provisionsConfidentiality Agreement”) (and it being understood that such confidentiality agreement shall not be required to contain a copy of which shall be promptly (in all events within 24 hours) provided for informational purposes only to Oraclestandstill provision), (iii) grant a waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel or any of its Subsidiaries, (iv) amend or terminate the Siebel Rights Plan or redeem the Siebel Rights, (v) withdraw the Siebel Board Recommendation or modify the Siebel Board Recommendation in a manner adverse to Oracle (any such action, a “Change in Recommendation”), (vi) terminate this Agreement pursuant to and subject . Notwithstanding anything to the terms of Section 9.01(d) and/or (vii) take any action that any court of competent jurisdiction orders Siebelcontrary in this Agreement, one or more prior to receipt of the Siebel Representatives or Company Stockholder Approval, the Board of Directors of Siebel the Company shall be permitted to take, but in each case referred to in the foregoing clauses (iii), (iv) and (v) only make an Adverse Recommendation Change if the Board of Directors of Siebel the Company determines in good faith by a majority votefaith, after consultation with its outside legal counselcounsel to the Company, that failure to it must take such action would be reasonably likely to result in a breach of comply with its fiduciary duties under applicable Lawlaw. Nothing contained herein shall prevent the Board of Directors of Siebel the Company from complying with Rule 14e-2(a), Rule 14d-9 and Item 1012(aRule 14e-2(a) of Regulation M-A under the 1934 Act with regard to an Acquisition Proposal; provided that the Board of Directors of Siebel shall not recommend that Siebel’s stockholders tender shares of capital stock in connection with any tender Proposal or exchange offer unless such Board of Directors shall have determined in good faith otherwise making disclosure required by a majority vote, after consultation with its outside legal counsel, that failure to make such recommendation would be reasonably likely to result in a breach of its fiduciary duties under applicable Lawlaw.
(c) The Board of Directors of Siebel the Company shall not take any of the actions referred to in clauses (iSection 6.03(b) through (vii) of unless the preceding subsection unless Siebel Company shall have delivered to Oracle Parent a prior written notice advising Oracle Parent that it intends to take such action. In addition, Siebel the Company shall notify Oracle Parent promptly (but in no event later than 24 hours) after an officer or director first obtains Knowledge of the receipt by Siebel the Company (or any of the Siebel Representativesits advisors) of any Acquisition Proposal, any inquiry that would reasonably be expected to lead to an Acquisition Proposal, Proposal or any request for confidential nonpublic information relating to Siebel the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries by any Third Party that has informed Siebel that it is considering makingmade, or has madeinformed the Company of any intention to make, or has publicly announced an intention to make, an Acquisition Proposal. Siebel The Company shall provide such notice orally and in writing and shall identify the Third Party making, and the material terms and conditions of, any such Acquisition Proposal, inquiry Proposal or request. Siebel shall promptly provide Oracle with any non-public information concerning Siebel’s business, present or future performance, financial condition or results of operations, provided to any Qualified Third Party after the date of this Agreement in connection with an Acquisition Proposal made by such Third Party that was not previously provided to Oracle. Siebel The Company shall keep Oracle promptly and reasonably Parent informed, on a reasonably current basis, of the status and material details of any such Acquisition Proposal, inquiry Proposal or request. Siebel The Company shall, and shall cause its Subsidiaries and the Siebel Representatives advisors, employees and other Table of Contents agents of the Company and any of its Subsidiaries to, cease immediately and cause to be terminated any and all existing activities, discussions or and negotiations, if any, with any Third Party conducted prior to the date hereof with respect to any Acquisition Proposal and shall instruct use its reasonable best efforts to cause any such Third Party (or its agents or advisors) in possession of confidential information about Siebel the Company that was furnished by or on behalf of Siebel with respect to any Acquisition Proposal within the six months prior to the date hereof Company to return or destroy all such information.
Appears in 1 contract
No Solicitation; Other Offers. (a) Neither Siebel the Company nor any of its Subsidiaries shall, nor shall Siebel the Company or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants accountants, consultants to, nor shall the Company or any of its Subsidiaries authorize or knowingly permit any of their respective other agentsemployees, representatives agents or advisors (the “Siebel Representatives”) to, directly or indirectly, (i) solicit, initiate, initiate or take any action to knowingly facilitate or knowingly encourage the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any non-public information relating to Siebel the Company or any of its Subsidiaries to or afford access to the business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries to to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that has made, or has informed Siebel that it is seeking to make, or has made, an Acquisition Proposal, (iii) grant any Third Party waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel the Company or any of its Subsidiaries or amend or terminate the Siebel Rights Plan or redeem the Siebel Rights or (iv) enter into any agreement (except for confidentiality agreements, referred to in Section 6.04(b)) with any Third Party with respect to an Acquisition Proposal made by such Third Party, or any other agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Mergers or any of the other transactions contemplated by this AgreementProposal.
(b) Notwithstanding anything to the contrary contained in this Agreementforegoing, Siebel (through one or more of the Siebel Representatives) or its Board of Directors mayof the Company, prior to the Siebel Stockholder Approvaldirectly or indirectly through advisors, agents or other intermediaries, may (i) engage in negotiations or discussions with any Third Party (or that, subject to the Company’s compliance with Sections 6.03(a) and 6.03(c) with respect to the representatives of any Third Party) that Acquisition Proposal made by such third party, has made an a bona fide, unsolicited written Acquisition Proposal not solicited that the Board of Directors of the Company believes in violation of Section 6.03(a) if such Acquisition Proposal constitutes or could good faith is reasonably be expected likely to lead to a Superior Proposal (such Third Party, a “Qualified Third Party”)Proposal, (ii) thereafter furnish to such Qualified that Third Party or its representatives non-public information relating to Siebel the Company or any of its Subsidiaries pursuant to an executed a confidentiality agreement containing customary nondisclosure provisions (which need not include “standstill ” or similar provisions) (and agreement, a copy of which shall be promptly provided to Parent, with terms no less favorable to the Company than those contained in the Confidentiality Agreement dated as of January 29, 2004 between the Company and Parent (in all events within 24 hours) provided for informational purposes only to Oracleas the same has been subsequently amended, the “Confidentiality Agreement”), (iii) grant a waiver or release under any standstill or similar agreement with respect fail to any class of equity securities of Siebel or any of its Subsidiariesmake, (iv) amend or terminate the Siebel Rights Plan or redeem the Siebel Rightswithdraw, (v) withdraw the Siebel Board Recommendation or modify the Siebel Board Recommendation in a manner adverse to Oracle Parent the Company Recommendation (any such action, a “Change in Recommendation”), (vi) terminate this Agreement pursuant to and subject to the terms of compliance with Section 9.01(d6.03(c)) and/or (viiiv) take any non-appealable, final action that any court of competent jurisdiction orders Siebel, one or more of the Siebel Representatives or the Board of Directors of Siebel Company to take, but in each case referred to in the foregoing clauses (iii), i) through (iv) and (v) only only, before the Company Stockholder Approval, if the Board of Directors of Siebel the Company determines in good faith by a majority votefaith, after consultation with its outside legal counselcounsel to the Company, that failure it must take that action to take such action would be reasonably likely to result in a breach of comply with its fiduciary duties under applicable Lawlaw. Nothing contained herein in this Agreement shall prevent the Board of Directors of Siebel the Company from complying with Rule 14d-9 or Rule 14e-2(a), Rule 14d-9 and Item 1012(a) of Regulation M-A under the 1934 Act with regard to an Acquisition Proposal; provided that .
(c) Further, the Board of Directors of Siebel shall not recommend that Siebel’s stockholders tender shares of capital stock in connection with any tender or exchange offer unless such Board of Directors shall have determined in good faith by a majority vote, after consultation with its outside legal counsel, that failure to make such recommendation would be reasonably likely to result in a breach of its fiduciary duties under applicable Law.
(c) The Board of Directors of Siebel the Company shall not take any of the actions referred to in clauses any of (ib)(i) through or (viib)(ii) of this Section unless the preceding subsection unless Siebel Company shall have delivered to Oracle Parent a prior written notice advising Oracle Parent that it intends to take such that action. In addition, Siebel the Company shall notify Oracle Parent promptly (but in no event later than 24 hours) after an officer or director first the Company obtains Knowledge knowledge of the receipt by Siebel the Company (or any of the Siebel Representativesits advisors) of any Acquisition Proposal, any inquiry indication that would reasonably be expected to lead to a Third Party is considering making an Acquisition Proposal, Proposal or of any request for confidential information relating to Siebel the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries by any Third Party that has informed Siebel that it is considering making, or has made, would reasonably be expected to lead to an Acquisition Proposal. Siebel shall provide such , and that notice orally and in writing and shall identify the Third Party making, and the material terms and conditions of, any such Acquisition Proposal, inquiry or request. Siebel shall promptly provide Oracle with any non-public information concerning Siebel’s business, present or future performance, financial condition or results of operations, provided to any Qualified Third Party after the date of this Agreement in connection with an Acquisition Proposal made by such Third Party that was not previously provided to Oracle. Siebel The Company shall keep Oracle promptly and Parent reasonably informed, on a reasonably current basis, of the status and material details of any such Acquisition Proposal, inquiry or request. Siebel Additionally, the Board of Directors of the Company shall not take any of the actions referred to in Section 6.03(b)(iii), unless the Company promptly notifies Parent, in writing and at least 3 Business Days before taking that action, of its intention to do so, and in the event such action is in response to an Acquisition Proposal that constitutes a Superior Proposal, (x) the Company attaches to such notice the most current version of any proposed agreement or a detailed summary of all material terms of any such proposal and the identity of the offeror, and (y) Parent does not make, within 3 Business Days of receipt of that written notification, an offer that renders that Acquisition Proposal to no longer be a Superior Proposal. The Company shall, and shall cause its Subsidiaries and the Siebel Representatives advisors, employees and other agents of the Company and any of its Subsidiaries to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to the date of this Agreement with respect to any Acquisition Proposal and shall instruct use commercially reasonable efforts to cause any such Third Party (or its agents or advisors) in possession of confidential information about Siebel the Company that was furnished by or on behalf of Siebel with respect to any Acquisition Proposal within the six months prior to the date hereof Company to return or destroy all such information.
Appears in 1 contract
No Solicitation; Other Offers. (a) Neither Siebel nor any of The Bank shall not, and shall cause its Subsidiaries shall, nor shall Siebel or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants or accountants, consultants, advisors and other agents, agents and representatives or advisors (the “Siebel Representatives”) not to, directly or indirectly, (i) solicit, initiate, knowingly induce or take any action to facilitate or knowingly encourage any inquiries or the making, submission or announcement of any proposal or offer that constitutes, or could reasonably be expected to lead to, any Acquisition Proposal, (ii) engage in, enter into into, continue or otherwise participate in any discussions or negotiations withregarding, or furnish any non-public information relating to Siebel or any of its Subsidiaries to the Bank or afford access to the business, properties, assets, books or records of Siebel or any of its Subsidiaries the Bank to any Third Party that has made, or has informed Siebel that it is seeking to makerelating to, an Acquisition Proposal, (iii) grant any Third Party waiver or release approval under any standstill Articles 14 or similar agreement 14.1 of the VSCA with respect to any class of equity securities of Siebel or any of its Subsidiaries or amend or terminate the Siebel Rights Plan or redeem the Siebel Rights or Third Party, (iv) execute or enter into any agreement (except for confidentiality agreements, referred to in Section 6.04(b)) with any Third Party with respect to an Acquisition Proposal made by such Third Partyinto, or propose to execute or enter into, any other letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, share exchange agreement, merger agreement or similar document or any contract, agreement, arrangement or understanding requiring it (whether binding or not) with respect to abandonany Acquisition Proposal or transaction contemplated thereby or, terminate (v) in the case of the Board of Directors of the Bank (or any committee thereof), fail to consummate make or withhold, withdraw, qualify or modify (or publicly propose or resolve to withhold, withdraw, qualify or modify), in a manner adverse to Parent, its recommendation to its shareholders referred to in Section 7.04 (the Mergers or any of the other transactions contemplated by this Agreement“Bank Recommendation”).
(b) Notwithstanding anything to the contrary contained in this Agreement, Siebel (through one or more of the Siebel Representatives) or its Board of Directors mayforegoing, prior to the Siebel Stockholder Approvaltime that, but not after, the shareholders of the Bank approve the Plan of Merger at the Bank Shareholder Meeting, the Bank may (i) engage in negotiations or discussions with any Third Party (or with the representatives of any Third Party) that has made an a written bona fide Acquisition Proposal that did not solicited in result from a violation of Section 6.03(a7.05(a) if such Acquisition Proposal and that the Board of Directors of the Bank determines in good faith, after consultation with its financial advisors, constitutes or could will reasonably be expected to lead to a Superior Proposal (such Third Party, a “Qualified Third Party”), or (ii) furnish to such Qualified Third Party or its representatives non-public nonpublic information relating to Siebel or any of its Subsidiaries the Bank pursuant to an executed a confidentiality agreement containing customary nondisclosure provisions (which need not include “standstill ” or similar provisions) (and a copy of which shall be provided to Parent) with terms no less favorable to the Bank (including standstill and non-solicitation provisions) than those contained in the Confidentiality Agreement, provided that the Bank promptly discloses (and, if applicable, provides copies of) any such information to Parent to the extent not previously provided to Parent; provided, however, that in all events within 24 hoursthe case of clauses (i) provided for informational purposes only to Oracleand (ii), (iii) grant a waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel or any of its Subsidiaries, (iv) amend or terminate the Siebel Rights Plan or redeem the Siebel Rights, (v) withdraw the Siebel Board Recommendation or modify the Siebel Board Recommendation in a manner adverse to Oracle (any such action, a “Change in Recommendation”), (vi) terminate this Agreement pursuant to and subject to the terms of Section 9.01(d) and/or (vii) take any action that any court of competent jurisdiction orders Siebel, one or more of the Siebel Representatives or the Board of Directors of Siebel to take, but in each case referred to in the foregoing clauses (iii), (iv) and (v) only if the Board of Directors of Siebel determines Bank shall have determined in good faith by a majority votefaith, after consultation with its outside legal counsel, that failure to take taking such action would be reasonably likely is necessary to result in a breach of its fiduciary duties under applicable Law. Nothing contained herein shall prevent the Board of Directors of Siebel from complying with Rule 14e-2(a), Rule 14d-9 and Item 1012(a) of Regulation M-A under the 1934 Act with regard to an Acquisition Proposal; provided that the Board of Directors of Siebel shall not recommend that Siebel’s stockholders tender shares of capital stock in connection with any tender or exchange offer unless such Board of Directors shall have determined in good faith by a majority vote, after consultation comply with its outside legal counsel, that failure duties to make such recommendation would be reasonably likely to result in a breach the shareholders of its fiduciary duties the Bank under applicable LawVirginia Law and the Bank complies with Section 7.05(c).
(c) The Board of Directors of Siebel Bank shall not take take, or cause to be taken, any of the actions referred to in clauses (i) through or (viiii) of Section 7.05(b) unless the preceding subsection unless Siebel Bank shall have delivered to Oracle a provided Parent with 24 hours’ prior written notice advising Oracle Parent that it intends to take such action, which notice shall identify the Third Party making the Acquisition Proposal and its advisors, describe the material terms and conditions of such Acquisition Proposal, and include a copy of any proposed agreements relating thereto. In addition, Siebel the Bank shall notify Oracle Parent promptly (but in no event later than 24 hours) after an officer or director first obtains Knowledge of the receipt by Siebel the Bank (or any of the Siebel Representativesits advisors) of any Acquisition Proposal, any inquiry indication that would reasonably be expected to lead to a Third Party is considering making an Acquisition Proposal, Proposal or of any inquiry or request for confidential information relating to Siebel or any of its Subsidiaries the Bank or for access to the business, properties, assets, books or records of Siebel or any of its Subsidiaries the Bank by any Third Party that has informed Siebel that it is may be considering making, or has made, an Acquisition Proposal. Siebel The Bank shall provide such notice orally and in writing and shall identify the such Third Party makingand its advisors, and describe the material terms and conditions of, any such Acquisition Proposal, indication, inquiry or request. Siebel shall promptly provide Oracle with any non-public information concerning Siebel’s business, present or future performance, financial condition or results of operations, provided to any Qualified Third Party after the date of this Agreement in connection with an Acquisition Proposal made by such Third Party that was not previously provided to Oracle. Siebel The Bank shall keep Oracle promptly and reasonably Parent fully informed, on a reasonably current basis, of the status and material details of any such Acquisition Proposal, indication, inquiry or requestrequest (including any subsequent changes or amendments thereto and withdrawals thereof) and shall provide Parent with copies of all documents and written communications (and written summaries of all material oral communications) received by the Bank with respect to any such Acquisition Proposals, indications, inquiries or requests.
(d) Notwithstanding anything in this Agreement to the contrary, prior to the time that, but not after, the shareholders of the Bank approve the Plan of Merger at the Bank Shareholder Meeting, the Board of Directors of the Bank may, in response to a Superior Proposal that did not result from a violation of this Section 7.05, (i) fail to make or withhold, withdraw, qualify or modify (or publicly propose or resolve to withhold, withdraw, qualify or modify), in a manner adverse to Parent, the Bank Recommendation and recommend such Superior Proposal to the shareholders of the Bank (an “Adverse Recommendation Change”) and (ii) cause the Bank to terminate this Agreement pursuant to Section 11.01(d)(i) and substantially concurrently enter into a definitive written agreement with respect to such Superior Proposal; provided, however, that the Board of Directors of the Bank shall not be entitled to take any of the actions described in clause (i) or (ii) of this Section 7.05(d) unless:
(i) the Bank shall have notified Parent in writing (the “Adverse Notice”) that it intends to take such action, specifying in reasonable detail the reasons therefor, identifying the Third Party making such Superior Proposal, describing in reasonable detail the material terms and conditions of such Superior Proposal, and including a copy of the proposed definitive agreement with respect thereto;
(ii) during the five (5) Business Day period following Parent’s receipt of the Adverse Notice (the “Notice Period”), the Bank negotiates, and causes its advisors to negotiate, in good faith with Parent, if Parent so desires, to make adjustments to the terms of this Agreement;
(iii) as of the close of business on the last day of the Notice Period, Parent does not make a proposal to the Bank that would, in the reasonable good faith judgment of the Board of Directors of the Bank (after consultation with its outside legal counsel and financial advisor), permit the Board of Directors of the Bank to proceed with the Bank Recommendation and not make an Adverse Recommendation Change or so terminate this Agreement as contemplated in the Adverse Notice;
(iv) the Bank has otherwise complied with its obligations under this Section 7.05;
(v) the Board of Directors of the Bank determines in good faith, after consultation with outside legal counsel and after giving effect to any adjustments to the terms of this Agreement that were proposed by Parent, that taking such action is necessary to comply with its legal duties to the shareholders of the Bank under Virginia Law; and
(vi) the Bank promptly terminates this Agreement pursuant to Section 11.01(d)(i) and promptly enters into such definitive agreement with respect to the Superior Proposal. Siebel If, following the Notice Period, the Board of Directors of the Bank determines not to effect an Adverse Recommendation Change and/or terminate this Agreement and thereafter there is any material changes to the facts and circumstances giving rise to the Adverse Notice or any change to the financial or material terms of the Acquisition Proposal that previously constituted a Superior Proposal, the Bank shall be required to comply again with the requirements of this Section 7.05(d) before effecting an Adverse Recommendation Change and/or terminating this Agreement as provided in clauses (i) and (ii), provided that references to the five (5) Business Day period in the Notice Period shall then be deemed to be references to a three (3) Business Day period.
(e) Nothing contained herein shall prevent the Board of Directors of the Bank from complying with Rule 14e-2(a) under the 1934 Act with regard to an Acquisition Proposal; provided, however, that if such disclosure has the substantive effect of withholding, withdrawing, qualifying or modifying in a manner adverse to Parent the Bank Recommendation, then Parent shall have the right to terminate this Agreement as set forth in Section 11.01(c). The Bank shall, and shall cause its Subsidiaries the advisors, employees and other agents of the Siebel Representatives Bank to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to the date hereof with respect to any Acquisition Proposal and shall instruct use its best efforts and exercise any applicable rights under any confidentiality or non-disclosure agreements to cause any such Third Party (or its agents or advisors) in possession of confidential information about Siebel the Bank that was furnished by or on behalf of Siebel with respect to any Acquisition Proposal within the six months prior to the date hereof Bank to return or destroy all such information.
(f) From the date of this Agreement until the earlier of (i) the Effective Time and (ii) the date on which this Agreement is terminated, the Bank shall not amend or grant any waiver or release under, or fail to enforce, any (i) any non-solicitation or non-competition covenants or similar agreements with respect to the Bank or any of its directors, officers, employees, consultants, or agents and (ii) standstill or similar agreements with respect to any Acquisition Proposals unless, in the case of clause (ii), the Board of Directors of the Bank determines in good faith that taking such action is necessary to comply with its legal duties to the shareholders of the Bank under Virginia Law.
(g) The Bank shall not submit to the vote of the Bank shareholders any Acquisition Proposal prior to the termination of this Agreement.
(h) The Bank acknowledges and agrees that any action inconsistent with any provision set forth in this Section 7.05 that is taken by any director, officer, employee, agent, advisor or other representative of the Bank shall be deemed to constitute a breach of such provision by the Bank.
(i) The following terms shall have the meanings set forth below:
Appears in 1 contract
No Solicitation; Other Offers. (a) Neither Siebel nor any Subject to Section 7.07(b), BHI agrees that from and after the date of this Agreement, it shall (i) immediately cease and terminate, and cause to be ceased and terminated, all of its and its Representatives’ discussions and negotiations with any other Person (other than GE or its Affiliates) regarding any Alternative Proposal (as hereinafter defined), (ii) promptly request, and cause to be requested that, each Person that has received confidential information in connection with a possible Alternative Proposal within the last twelve (12) months return to BHI or destroy all confidential information heretofore furnished to such Person by or on behalf of BHI and the BHI Subsidiaries shalland (iii) not grant any waiver or release under or knowingly fail to enforce any confidentiality, standstill or similar agreement entered into or amended during the twelve (12) months prior to the date hereof in respect of a proposed Alternative Proposal unless the Board of Directors of BHI concludes in good faith that a failure to take any action described in this clause (iii) would reasonably likely be inconsistent with the directors’ fiduciary obligations to BHI’s stockholders under applicable Law. From and after the date of this Agreement, subject to Section 7.07(b) and Section 9.03, BHI shall not, directly or indirectly, nor shall Siebel or any of its Subsidiaries BHI authorize or permit any BHI Subsidiary or any of its or their respective directors, officers, directorsmembers, employees, investment bankersrepresentatives, agents, attorneys, accountants or consultants, contractors, accountants, financial advisors and other agents, representatives or advisors (the a “Siebel RepresentativesRepresentative”) to, directly or indirectly, (i) solicit, initiate, knowingly facilitate initiate or knowingly encourage or facilitate (including by way of furnishing information), or engage in discussions or negotiations regarding, any inquiry, proposal or offer, or the making, submission or announcement of any Acquisition inquiry, proposal or offer (including any inquiry, proposal or offer to its stockholders) which constitutes or would be reasonably expected to lead to an Alternative Proposal, (ii) except for confidentiality agreements entered into pursuant to the proviso to the first sentence of Section 7.07(b), or a definitive agreement entered into or to be entered into concurrently with a termination of this Agreement by BHI pursuant to Section 9.03, approve or enter into a letter of intent, memorandum of understanding or participate other contract with any Person, other than GE, for, constituting or otherwise relating to an Alternative Proposal, (iii) provide or cause to be provided any information or data relating to BHI or any BHI Subsidiary in connection with, or in response to, any Alternative Proposal by any Person, or (iv) terminate, amend, waive or permit the waiver of any voting restriction contained in the organizational or governing documents of BHI, or take any action contemplated by paragraph (a)(1) of Section 203 of the DGCL. Without limiting the generality of the foregoing, BHI acknowledges and agrees that, in the event any officer, director or financial advisor of BHI takes any action that if taken by BHI would be a breach of this Section 7.07, the taking of such action by such officer, director or financial advisor shall be deemed to constitute a breach of this Section 7.07 by BHI.
(b) Notwithstanding the provisions of Section 7.07(a), BHI and its Representatives shall be entitled, prior to obtaining the BHI Stockholder Approval, to furnish information regarding BHI and any BHI Subsidiary to, or engage in discussions or negotiations with, furnish any Person in response to an unsolicited, bona fide, written third party proposal with respect to an Alternative Proposal that is submitted to BHI by such Person (for so long as such Alternative Proposal has not been withdrawn) if (i) none of BHI, the Representatives of BHI, the BHI Subsidiaries or the Representatives of the BHI Subsidiaries shall have breached the provisions set forth in this Section 7.07 in any material respect with respect to such Person, and (ii) the Board of Directors of BHI shall have determined, in its good faith judgment, after consultation with BHI’s financial advisor and outside legal counsel, that the proposal constitutes or is reasonably likely to lead to a Superior Proposal (as hereinafter defined); provided that BHI may not enter into negotiations or discussions or supply any information in connection with an Alternative Proposal without entering into a confidentiality agreement, which confidentiality agreement may allow such third party to make Alternative Proposals to BHI in connection with the negotiations and discussions permitted by this Section 7.07(b). GE shall be entitled to receive an executed copy of any such confidentiality agreement and notification of the identity of such Person promptly (and in any event within twenty-four (24) hours) after BHI’s entering into such discussions or negotiations or furnishing information to the Person making such Alternative Proposal or its Representatives. BHI shall promptly provide or make available to GE any non-public information relating concerning BHI and any BHI Subsidiary that is provided to Siebel the Person making such Alternative Proposal or its Representatives which was not previously provided or made available to GE. BHI agrees that it shall notify GE promptly (and in any event within forty-eight (48) hours of receipt) if any inquiry, contact or proposal related to an Alternative Proposal is received by, any such information is requested from, or any such discussions or negotiations are sought to be initiated or continued with, BHI, any BHI Subsidiary, any of its Subsidiaries to or afford access to the businessRepresentatives, properties, assets, books or records of Siebel or any Representatives of its Subsidiaries to any Third Party that has madeBHI Subsidiary, and thereafter shall keep GE informed in writing, on a reasonably current basis, of all material developments regarding the status of any such inquiry, contact or has informed Siebel that it is seeking to make, an Acquisition Proposal, (iii) grant proposal and the status of any Third Party waiver such negotiations or release discussions. Nothing contained in this Agreement shall prevent the Board of Directors of BHI from complying with Rule 14e-2 under any standstill or similar agreement with respect to any class of equity securities of Siebel or any of its Subsidiaries or amend or terminate the Siebel Rights Plan or redeem the Siebel Rights or (iv) enter into any agreement (except for confidentiality agreements, referred to in Section 6.04(b)) with any Third Party Exchange Act with respect to an Acquisition Alternative Proposal made or from making any similar disclosure; provided, however, that any disclosure by BHI that relates to an Alternative Proposal shall be deemed to be a Change in Recommendation unless the Board of Directors of BHI reaffirms BHI Board Recommendation in such Third Partydisclosure.
(c) Neither the Board of Directors of BHI nor any committee thereof shall (i) (A) withdraw (or qualify or modify in a manner adverse to GE), or propose to withdraw (or qualify or modify in a manner adverse to GE), the approval, recommendation or declaration of advisability by the Board of Directors of BHI or any such committee thereof of this Agreement, the Transactions or any other transaction contemplated by this Agreement, (B) recommend, adopt or approve, or propose publicly to recommend, adopt or approve any Alternative Proposal, (C) fail to include BHI Board Recommendation in the Combined Proxy Statement/Prospectus or (D) resolve, propose or agree to do any of the foregoing (any action described in this clause (i) being referred to as a “Change in Recommendation”) or (ii) (A) recommend, adopt or approve, or propose publicly to recommend, adopt or approve, or allow BHI or any of the BHI Subsidiaries to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, merger agreement, arrangement acquisition agreement, option agreement, joint venture agreement, partnership agreement or understanding requiring it other similar agreement constituting or related to, or that is intended to or could reasonably be expected to lead to, any Alternative Proposal or that would require BHI to abandon, terminate or fail to consummate the Mergers Transactions (other than a confidentiality agreement referred to in Section 7.07(b)) (an “Acquisition Agreement”) or (B) resolve, agree or propose to do any of the other transactions contemplated by this Agreement.
(b) foregoing. Notwithstanding anything in this Agreement to the contrary contained in this Agreementcontrary, Siebel (through one or more of if, prior to obtaining the Siebel Representatives) or its BHI Stockholder Approval, the Board of Directors may, prior to the Siebel Stockholder Approval, of BHI determines in good faith (i) engage in negotiations or discussions after consultation with any Third Party (or with the representatives of any Third Partyits outside counsel and financial advisors) that has made an Acquisition Proposal not solicited in violation of Section 6.03(a) if such Acquisition Proposal constitutes or could the failure to do so would reasonably likely be expected inconsistent with its fiduciary duties to lead to a Superior Proposal BHI’s stockholders under applicable Law, it may (such Third Party, a “Qualified Third Party”), (ii) furnish to such Qualified Third Party or its representatives non-public information relating to Siebel or any of its Subsidiaries pursuant to an executed confidentiality agreement containing customary nondisclosure provisions (which need not include “standstill ” or similar provisions) (and a copy of which shall be promptly (in all events within 24 hours) provided for informational purposes only to Oracle), (iii) grant a waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel or any of its Subsidiaries, (iv) amend or terminate the Siebel Rights Plan or redeem the Siebel Rights, (v) withdraw the Siebel Board Recommendation or modify the Siebel Board Recommendation in a manner adverse to Oracle (any such action, a “Change in Recommendation”), (viA) terminate this Agreement pursuant to Section 9.03(b) and subject cause BHI to enter into an Acquisition Agreement with respect to a Superior Proposal or (B) make a Change in Recommendation in connection with a Superior Proposal, but in the terms case of Section 9.01(d(1) and/or the foregoing clause (viiA), only if such Superior Proposal has not resulted from a breach of its obligations pursuant to this Section 7.07, and (2) take any action the foregoing clauses (A) or (B) only if (x) BHI provides written notice to GE (a “Notice of Change in Recommendation”) advising GE that any court of competent jurisdiction orders Siebel, one or more of the Siebel Representatives or the Board of Directors of Siebel BHI intends to taketake such action and specifying the reasons therefor, including the terms and conditions of such Superior Proposal, the identity of the Person making Superior Proposal and copies of all relevant documents relating to such Superior Proposal that BHI has received from the Person or its Representatives that made such proposal and that are the basis of the proposed action by the Board of Directors of BHI, including a copy of the proposed Acquisition Agreement (if any) (it being understood and agreed that any amendment to the financial terms or other material terms of such Superior Proposal shall require a new Notice of Change in Recommendation and compliance with the requirements of this Section 7.07(c)); (y) during a period of four (4) Business Days following GE’s receipt of a Notice of Change in Recommendation (or, in the event of a new Notice of Change in Recommendation as a result of any such amendment, an extension of two (2) additional Business Days), if requested by GE, BHI and its Representatives shall have negotiated with GE and its Representatives in good faith to make such revisions or adjustments proposed by GE to the terms and conditions of this Agreement as would enable BHI to proceed with its recommendation of this Agreement and the Transactions and not to make such Change in Recommendation; and (z) if applicable, at the end of such applicable 4- or 2-Business Day period, the Board of Directors of BHI, after considering in good faith any such revisions or adjustments to the terms and conditions of this Agreement that GE, prior to the expiration of such applicable period, shall have offered in writing in a manner that would form a binding contract if accepted by BHI, continues to determine in good faith (after consultation with its outside counsel and financial advisors) that the Alternative Proposal constitutes a Superior Proposal and that failure to make such Change in Recommendation would reasonably likely be inconsistent with its fiduciary duties to BHI’s stockholders under applicable Law.
(d) Other than in connection with an Alternative Proposal, BHI may, at any time prior to, but not after, obtaining the BHI Stockholder Approval, make a Change in each case referred Recommendation in response to an Intervening Event (an “Intervening Event Change in Recommendation”) if the foregoing clauses failure to take such action would likely be inconsistent with the fiduciary duties of the Board of Directors of BHI to BHI’s stockholders under applicable Law, provided, that: (iii)A) GE shall have received written notice from BHI of BHI’s intention to make an Intervening Event Change in Recommendation at least four (4) Business Days prior to the taking of such action by BHI, which notice shall specify the applicable Intervening Event in reasonable detail, (ivB) during such period and prior to making an Intervening Event Change in Recommendation, if requested by GE, BHI and its Representatives shall have negotiated in good faith with GE and its Representatives regarding any revisions or adjustments proposed by GE to the terms and conditions of this Agreement as would enable BHI to proceed with its recommendation of this Agreement and the Transactions and not make such Intervening Event Change in Recommendation and (vC) BHI may make an Intervening Event Change in Recommendation only if the Board of Directors of Siebel determines BHI, after considering in good faith any revisions or adjustments to the terms and conditions of this Agreement that GE shall have, prior to the expiration of the 4-Business Day period, offered in writing in a manner that would form a binding contract if accepted by a majority voteBHI, after consultation with its outside legal counsel, continues to determine in good faith that failure to take such action make an Intervening Event Change in Recommendation would likely be reasonably likely to result in a breach of inconsistent with its fiduciary duties to BHI’s stockholders under applicable Law. Nothing contained herein An “Intervening Event” shall prevent mean any fact, circumstance, occurrence, event, development, change or condition or combination thereof that (i) was not known to the Board of Directors of Siebel from complying with Rule 14e-2(a)BHI as of the date of this Agreement (or if known, Rule 14d-9 the consequences or magnitude of which were not known or reasonably foreseeable) and Item 1012(a(ii) does not relate to (A) any Alternative Proposal or (B) clearance of Regulation M-A the Transactions under the 1934 Act with regard HSR Act, the EC Merger Regulation or any other Regulatory Law, including any action in connection therewith taken pursuant to an Acquisition Proposalor required to be taken pursuant to Section 7.08; provided provided, however, that (1) any change in the Board price or trading volume of Directors BHI Common Stock or of Siebel oil or gas shall not recommend that Siebel’s stockholders tender shares be taken into account for purposes of capital stock in connection with any tender or exchange offer unless such Board of Directors shall have determined in good faith by a majority votedetermining whether an Intervening Event has occurred (it being acknowledged, after consultation with its outside legal counselhowever, that failure to make such recommendation would in the case of the price or trading volume of BHI Common Stock, any underlying cause thereof may be reasonably likely to result taken into account for purposes of determining whether an Intervening Event has occurred); (2) in a breach of its fiduciary duties under applicable Law.
no event shall any fact, circumstance, occurrence, event, development, change or condition or combination thereof (c) The Board of Directors of Siebel shall not take including any of the actions referred to foregoing set forth on or reflected in clauses (ithe GE O&G Audited Financial Statements) through (vii) of the preceding subsection unless Siebel shall have delivered to Oracle a prior written notice advising Oracle that it intends to take such action. In addition, Siebel shall notify Oracle promptly (but in no event later than 24 hours) after an officer has had or director first obtains Knowledge of the receipt by Siebel (or any of the Siebel Representatives) of any Acquisition Proposal, any inquiry that would reasonably be expected to lead to have an Acquisition Proposal, adverse effect on the business or any request for confidential information relating to Siebel financial condition of GE or any of its Subsidiaries constitute an Intervening Event unless such event, fact, circumstance or development constitutes a GE Material Adverse Effect; and (3) BHI or GE (in respect of GE O&G) meeting, failing to meet or exceeding projections shall not be taken into account for access to the businesspurposes of determining whether an Intervening Event has occurred (it being acknowledged, propertieshowever, assets, books or records that any underlying cause thereof may be taken into account for purposes of Siebel or any of its Subsidiaries by any Third Party that determining whether an Intervening Event has informed Siebel that it is considering making, or has made, an Acquisition Proposal. Siebel shall provide such notice orally and in writing and shall identify the Third Party making, and the material terms and conditions of, any such Acquisition Proposal, inquiry or request. Siebel shall promptly provide Oracle with any non-public information concerning Siebel’s business, present or future performance, financial condition or results of operations, provided to any Qualified Third Party after the date of this Agreement in connection with an Acquisition Proposal made by such Third Party that was not previously provided to Oracle. Siebel shall keep Oracle promptly and reasonably informed, on a reasonably current basis, of the status and material details of any such Acquisition Proposal, inquiry or request. Siebel shall, and shall cause its Subsidiaries and the Siebel Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party with respect to any Acquisition Proposal and shall instruct any such Third Party (or its agents or advisors) in possession of confidential information about Siebel that was furnished by or on behalf of Siebel with respect to any Acquisition Proposal within the six months prior to the date hereof to return or destroy all such informationoccurred).
Appears in 1 contract
Samples: Transaction Agreement and Plan of Merger (Baker Hughes Inc)
No Solicitation; Other Offers. (a) Neither Siebel Subject to Section 6.03(b), neither the Company nor any of its Subsidiaries shall, nor shall Siebel the Company or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants accountants, consultants or other agents, representatives agents or advisors (the “Siebel Representatives”) to, directly or indirectly, (i) solicit, initiate, knowingly initiate or take any action to facilitate or knowingly encourage the submission of any Acquisition Proposal, (ii) enter into into, continue or participate in any discussions or negotiations with, furnish any non-public information relating to Siebel the Company or any of its Subsidiaries to or afford access to the business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries to to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that has made, or has informed Siebel that it is seeking to make, or has made, an Acquisition Proposal, (iii) recommend an Acquisition Proposal or fail to make, withdraw or modify in a manner adverse to Parent or Merger Sub the Company Board Recommendation (any of the foregoing in this clause (iii), an “Adverse Recommendation Change”), (iv) grant any Third Party waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel the Company or any of its Subsidiaries or amend or terminate the Siebel Rights Plan or redeem the Siebel Rights or (ivv) enter into any agreement (except for confidentiality agreementsin principle, referred to in Section 6.04(b)) with any Third Party with respect letter of intent, term sheet, acquisition agreement or other similar instrument relating to an Acquisition Proposal made by such Third Party, or any other agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Mergers or any of the other transactions contemplated by this AgreementProposal.
(b) Notwithstanding anything to the contrary contained in this Agreementforegoing, Siebel (through one or more of the Siebel Representatives) or its Board of Directors mayof the Company, directly or indirectly through advisors, agents or other intermediaries, may at any time prior to the Siebel Company Stockholder ApprovalMeeting, (i) engage in negotiations or discussions with any Third Party (or that, subject to the Company’s Table of Contents compliance with the representatives of any Third Party) that Section 6.03(a), has made an a bona fide written Acquisition Proposal not solicited that the Board of Directors of the Company believes in violation of Section 6.03(agood faith (after consulting with outside legal counsel to the Company and the Company’s financial advisor) if such Acquisition Proposal (A) constitutes or could reasonably be expected to lead to a Superior Proposal and (B) is from a Person reasonably capable of consummating such Third Party, Acquisition Proposal in a “Qualified Third Party”)timely manner, (ii) thereafter furnish to such Qualified Third Party or its representatives non-public described in the preceding clause (i) nonpublic information relating to Siebel the Company or any of its Subsidiaries pursuant to an executed a confidentiality agreement containing customary nondisclosure provisions not materially less favorable to the Company than the Confidentiality Agreement (and which need shall not include “standstill ” any exclusivity or similar provisions) other provision prohibiting the Company from satisfying its obligations hereunder), provided that the Company promptly furnishes such nonpublic information to Parent (and a copy of which shall be promptly (in all events within 24 hours) provided for informational purposes only except to Oraclethe extent such nonpublic information has been previously furnished to Parent), (iii) grant following receipt of such Acquisition Proposal described in clause (i), make an Adverse Recommendation Change, provided that (A) the Company delivers to Parent, promptly following the resolution of the Board of Directors of the Company to make an Adverse Recommendation Change, written notice of the Adverse Recommendation Change, which notice shall state the material terms and conditions of the Acquisition Proposal, and (B) for a waiver or release under any standstill or similar agreement period of two Business Days following delivery of such notice, the Company shall provide Parent a reasonable opportunity to make adjustments in the terms and conditions of this Agreement, and negotiate in good faith with respect to any class of equity securities of Siebel or any of its Subsidiaries, thereto; and/or (iv) amend or terminate the Siebel Rights Plan or redeem the Siebel Rights, (v) withdraw the Siebel Board Recommendation or modify the Siebel Board Recommendation in a manner adverse to Oracle (any such action, a “Change in Recommendation”), (vi) terminate this Agreement pursuant to and subject to the terms of Section 9.01(d) and/or (vii) take any nonappealable, final action that any court of competent jurisdiction orders Siebel, one or more of the Siebel Representatives or the Board of Directors of Siebel Company to take, but in each case referred to in the foregoing clauses (iii), i) through (iv) and (viii)(iv) only if the Board of Directors of Siebel the Company determines in good faith by a majority vote, after consultation with its considering advice from outside legal counselcounsel to the Company and the financial advisor to the Company, that failure to it must take such action would be reasonably likely to result in a breach of comply with its fiduciary duties under applicable Applicable Law. Nothing contained herein shall prevent the Board of Directors of Siebel the Company from complying with Rule 14e-2(a), Rule 14d-9 and Item 1012(a) of Regulation M-A under the 1934 Act with regard to an Acquisition Proposal; provided that Proposal or from making any disclosure to the stockholders of the Company if, in the good faith judgment of the Board of Directors of Siebel shall not recommend that Siebel’s stockholders tender shares of capital stock in connection with any tender or exchange offer unless such Board of Directors shall have determined in good faith by a majority votethe Company, after consultation considering the advice of outside counsel, failure so to disclose could be inconsistent with its outside legal counselobligations under Applicable Law; provided, however, that failure to make such recommendation would the fact that a disclosure or other action may be reasonably likely to result deemed permissible by virtue of this sentence does not in a breach and of its fiduciary duties under applicable Law.
(c) The Board of Directors of Siebel shall not take any of the actions referred to in clauses (i) through (vii) of the preceding subsection unless Siebel shall have delivered to Oracle a prior written notice advising Oracle itself mean that it intends to take such action. In addition, Siebel shall notify Oracle promptly (but in no event later than 24 hours) after an officer or director first obtains Knowledge of the receipt by Siebel (or any of the Siebel Representatives) of any Acquisition Proposal, any inquiry that would reasonably be expected to lead to an Acquisition Proposal, or any request for confidential information relating to Siebel or any of its Subsidiaries or for access to the business, properties, assets, books or records of Siebel or any of its Subsidiaries by any Third Party that has informed Siebel that it is considering making, or has made, an Acquisition Proposal. Siebel shall provide such notice orally and in writing and shall identify the Third Party making, and the material terms and conditions of, any such Acquisition Proposal, inquiry disclosure or request. Siebel shall promptly provide Oracle with any non-public information concerning Siebel’s business, present or future performance, financial condition or results of operations, provided to any Qualified Third Party after the date of this Agreement in connection with other action constitutes an Acquisition Proposal made by such Third Party that was not previously provided to Oracle. Siebel shall keep Oracle promptly and reasonably informed, on a reasonably current basis, of the status and material details of any such Acquisition Proposal, inquiry or request. Siebel shall, and shall cause its Subsidiaries and the Siebel Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party with respect to any Acquisition Proposal and shall instruct any such Third Party (or its agents or advisors) in possession of confidential information about Siebel that was furnished by or on behalf of Siebel with respect to any Acquisition Proposal within the six months prior to the date hereof to return or destroy all such informationAdverse Recommendation Change.
Appears in 1 contract
Samples: Merger Agreement (Netiq Corp)
No Solicitation; Other Offers. (a) Neither Siebel Subject to Section 6.03(b), neither the Company nor any of its Subsidiaries shall, nor shall Siebel the Company or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants accountants, consultants or other agents, representatives agents or advisors (the “Siebel Representatives”) to, directly or indirectly, (i) solicit, initiateinitiate or take any action that could reasonably be expected to facilitate, knowingly facilitate or knowingly encourage the submission of of, any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any non-public nonpublic information relating to Siebel the Company or any of its Subsidiaries to or afford access to the business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries to to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by, any Third Party that has made, or has informed Siebel that it a Person acting in good faith would reasonably believe is seeking to make, or has made, an Acquisition Proposal, except to notify such Third Party as to the existence of these provisions, (iii) fail to make when required, withdraw or modify in a manner adverse to Parent the Company Board Recommendation (or recommend an Acquisition Proposal or take any action or make any public statement inconsistent with the Company Board Recommendation) (any of the foregoing in this clause (iii), an “Adverse Recommendation Change”), (iv) grant any Third Party any waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel the Company or any of its Subsidiaries or amend or terminate the Siebel Rights Plan or redeem the Siebel Rights or (ivv) enter into any agreement in principle, letter of intent, term sheet or other similar instrument relating to an Acquisition Proposal (except for confidentiality agreements, referred to in agreements under circumstances permitted by Section 6.04(b6.03(b)) with any Third Party with respect to an Acquisition Proposal made by such Third Party, or any other agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Mergers or any of the other transactions contemplated by this Agreement).
(b) Notwithstanding anything the foregoing, prior to receiving the contrary contained in this AgreementCompany Stockholder Approval, Siebel (through one or more of the Siebel Representatives) or its Board of Directors mayof the Company, prior to the Siebel Stockholder Approvaldirectly or indirectly through advisors, agents or other intermediaries, may (i) engage in negotiations or discussions with any Third Party (or with the representatives of any Third Party) that that, subject to the Company’s compliance with Section 6.03(a)(i), has made an a bona fide written Acquisition Proposal not solicited in violation that the Board of Section 6.03(a) if such Acquisition Proposal constitutes or could Directors of the Company reasonably be expected to believes will lead to a Superior Proposal (such Third Party, a “Qualified Third Party”)Proposal, (ii) thereafter furnish to such Qualified Third Party or its representatives non-public nonpublic information relating to Siebel the Company or any of its Subsidiaries pursuant to an executed a confidentiality agreement containing customary nondisclosure with terms no less favorable to the Company than those contained in the Confidentiality Agreement dated as of September 23, 2005 between the Company and Parent (the “Confidentiality Agreement”); provided, however, that such confidentiality agreement shall not be required to, and shall not, contain any provisions that would prevent the Company from complying with its obligation to provide the required disclosure to Parent pursuant to this Section 6.03 (which need not include “standstill ” or similar provisions) (and a copy of which confidentiality agreement shall be promptly (in all events within 24 hours) provided for informational purposes only to OracleParent), (iii) grant following a waiver or release under any standstill or similar agreement with respect to any class determination by the Board of equity securities Directors of Siebel or any of its Subsidiariesthe Company that such Acquisition Proposal is a Superior Proposal, make an Adverse Recommendation Change and/or (iv) amend or terminate the Siebel Rights Plan or redeem the Siebel Rights, (v) withdraw the Siebel Board Recommendation or modify the Siebel Board Recommendation in a manner adverse to Oracle (any such action, a “Change in Recommendation”), (vi) terminate this Agreement pursuant to and subject to the terms of Section 9.01(d) and/or (vii) take any action that any court of competent jurisdiction orders Siebel, one or more of the Siebel Representatives or the Board of Directors of Siebel Company to take, but in each case referred to in the foregoing clauses (i) through (iii), (iv) and (v) only if the Board of Directors of Siebel the Company determines in good faith by a majority vote, after consultation with considering advice from outside legal counsel to the Company (which may be its current outside legal counsel, Xxxxxxxx & Worcester LLP), that the failure to take such action would be reasonably likely to result in a breach of inconsistent with its fiduciary duties under applicable Applicable Law. Nothing contained herein shall prevent the Board of Directors of Siebel the Company from complying with Rule 14e-2(a), ) or Rule 14d-9 and Item 1012(a) of Regulation M-A under the 1934 Act with regard to an Acquisition Proposal; provided that the Board of Directors of Siebel the Company shall not recommend that Siebelthe Company’s stockholders tender shares of capital stock in connection with any tender or exchange offer unless such the Board of Directors shall have determined of the Company determines in good faith by a majority vote, after consultation with considering advice from outside legal counsel to the Company (which may be its current outside legal counsel, Xxxxxxxx & Worcester LLP), that the failure to make take such recommendation action would be reasonably likely to result in a breach of inconsistent with its fiduciary duties under applicable Applicable Law.
(c) The Board of Directors of Siebel the Company shall not take any of the actions referred to in clauses (i) through (viiiii) or the last sentence of Section 6.03(b) unless the preceding subsection unless Siebel Company shall have delivered to Oracle Parent a prior written notice advising Oracle Parent that it intends to take such action. In addition, Siebel the Company shall notify Oracle Parent promptly (but in no event later than 24 hours) after an executive officer or director of the Company first obtains Knowledge of the receipt by Siebel the Company (or any of the Siebel Representativesits advisors) of any Acquisition Proposal, any inquiry that would reasonably be expected to lead to an Acquisition Proposal, Proposal or any request for confidential information relating to Siebel the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries by from any Third Party that has informed Siebel that it a Person acting in good faith would reasonably believe is considering makingseeking to make, or has made, an Acquisition Proposal. Siebel The Company shall provide such notice orally and in writing and shall identify the Third Party making, and the material terms and conditions of, any such Acquisition Proposal, inquiry indication or request. Siebel shall promptly provide Oracle with any non-public information concerning Siebel’s business, present or future performance, financial condition or results of operations, provided to any Qualified Third Party after the date of this Agreement in connection with an Acquisition Proposal made by such Third Party that was not previously provided to Oracle. Siebel The Company shall keep Oracle promptly and Parent reasonably informed, on a reasonably current basis, of the status and material details of any such Acquisition Proposal, inquiry indication or request. Siebel The Company shall, and shall cause its Subsidiaries and the Siebel Representatives advisors, employees and other agents of the Company and any of its Subsidiaries to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to the date hereof with respect to any Acquisition Proposal and shall instruct use its reasonable best efforts to cause any such Third Party (or its agents or advisors) in possession of confidential information about Siebel the Company that was furnished by or on behalf of Siebel with respect to any Acquisition Proposal within the six months prior to the date hereof Company to return or destroy all such information.
Appears in 1 contract
Samples: Merger Agreement (Ade Corp)
No Solicitation; Other Offers. (a) Neither Siebel Except as expressly permitted under Section 6.5(b), neither CCE nor any of its Subsidiaries shall, nor shall Siebel the Representatives of CCE or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants or other agents, representatives or advisors (the “Siebel Representatives”) toSubsidiaries, directly or indirectly, (i) solicit, initiate, knowingly encourage or otherwise facilitate or knowingly encourage the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any non-public information relating to Siebel CCE or any of its Subsidiaries to or afford access to the business, properties, assets, books properties or records Records of Siebel CCE or any of its Subsidiaries to to, otherwise cooperate in any Third Party that has madeway with, or has informed Siebel assist, participate in, facilitate or encourage any effort by any Person that it is seeking to make, or has made, an Acquisition Proposal, (iii) grant any Third Party waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel or any of its Subsidiaries or amend or terminate the Siebel Rights Plan or redeem the Siebel Rights or (iv) enter into any agreement (except for confidentiality agreements, referred to in Section 6.04(b)) with any Third Party with respect to an Acquisition Proposal made by such Third Party, or any other agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Mergers or any of the other transactions contemplated by this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, Siebel (through one or more of the Siebel Representatives) or its Board of Directors may, prior to the Siebel Stockholder Approval, (i) engage in negotiations or discussions with any Third Party (or with the representatives of any Third Party) that has made an Acquisition Proposal not solicited in violation of Section 6.03(a) if such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal (such Third Party, a “Qualified Third Party”), (ii) furnish to such Qualified Third Party or its representatives non-public information relating to Siebel or any of its Subsidiaries pursuant to an executed confidentiality agreement containing customary nondisclosure provisions (which need not include “standstill ” or similar provisions) (and a copy of which shall be promptly (in all events within 24 hours) provided for informational purposes only to Oracle), (iii) grant a waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel CCE or any of its Subsidiaries, (iv) amend approve any transaction under, or terminate any Person becoming an "interested stockholder" under, Section 203 of the Siebel Rights Plan DGCL or redeem the Siebel Rights, (v) withdraw enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar Contract or instrument relating to an Acquisition Proposal. It is agreed that any violation of the Siebel restrictions on CCE set forth in this Section 6.5(a) by any of its Subsidiaries or any Representative of CCE or any of its Subsidiaries shall constitute a breach hereof by CCE.
(b) Notwithstanding Sections 6.4(e) or 6.5(a), at any time prior to obtaining the Required CCE Vote:
(i) CCE, directly or indirectly through advisors, agents or other intermediaries, may (A) engage or participate in negotiations or discussions with any Person and its Representatives that, subject to CCE's compliance with Section 6.5(a) has made after the date of this Agreement an unsolicited bona fide written Acquisition Proposal that the CCE Board Recommendation believes in good faith constitutes or modify is reasonably likely to lead to a Superior Proposal; and (B) furnish to such Person or its Representatives nonpublic information relating to CCE or any of its Subsidiaries pursuant to a customary confidentiality agreement (a copy of which shall be provided for informational purposes only to TCCC) with such Person; provided, that all such information (to the Siebel extent that such information has not been previously provided or made available to TCCC) is provided or made available to TCCC, as the case may be, prior to or substantially concurrently with the time it is provided or made available to such Person; and
(ii) subject to compliance with Section 6.5(c) and Section 6.5(d), if applicable, the CCE Board Recommendation in may make a manner adverse to Oracle (any such action, a “Change in CCE Recommendation”), (vi) terminate this Agreement pursuant to and subject to the terms of Section 9.01(d) and/or (vii) take any action that any court of competent jurisdiction orders Siebel, one or more of the Siebel Representatives or the Board of Directors of Siebel to take, but ; in each case referred to in the foregoing clauses (iii), (ivi) and (vii) only if the CCE Board of Directors of Siebel determines in good faith by a majority votefaith, after consultation with its outside legal counsel, that the failure to take such action would be reasonably likely to result in a breach of inconsistent with its fiduciary duties under applicable Law. Nothing In addition, nothing contained herein shall prevent the CCE Board of Directors of Siebel from (i) complying with Rule 14e-2(a), Rule 14d-9 and Item 1012(a) of Regulation M-A under the 1934 Exchange Act with regard to an Acquisition ProposalProposal so long as any position taken or statement made to so comply is consistent with this Section 6.5; provided provided, that any such position taken or statement made that addresses or relates to the approval, recommendation or declaration of advisability by CCE's Board of Directors of Siebel with respect to this Agreement or an Acquisition Proposal shall not recommend that Siebel’s stockholders tender shares of capital stock be deemed to be a Change in CCE Recommendation unless the CCE Board expressly reaffirms the CCE Recommendation in such statement or in connection with any tender such action or exchange offer unless such Board (ii) issuing a "stop, look and listen" disclosure or similar communication of Directors shall have determined in good faith the type contemplated by a majority vote, after consultation with its outside legal counsel, that failure to make such recommendation would be reasonably likely to result in a breach of its fiduciary duties Rule 14d-9(f) under applicable Lawthe Exchange Act.
(c) The CCE Board of Directors of Siebel shall not take any of the actions referred to in clauses (iSection 6.5(b) through (vii) of the preceding subsection unless Siebel CCE shall have delivered to Oracle TCCC a prior written notice advising Oracle TCCC that it intends to take such action. In addition, Siebel CCE shall notify Oracle TCCC promptly (but in no event later than 24 hours) after an officer or director first obtains Knowledge of the receipt by Siebel (or any of the Siebel Representatives) of any Acquisition Proposal, any inquiry that would reasonably be expected to lead to an Acquisition Proposal, or any request for confidential information relating to Siebel or any of its Subsidiaries or for access to the business, properties, assets, books or records of Siebel or any of its Subsidiaries by any Third Party that has informed Siebel that it is considering making, or has made, an Acquisition Proposal. Siebel shall provide such notice orally and in writing and shall identify the Third Party making, and the material terms and conditions of, any such Acquisition Proposal, inquiry or request. Siebel shall promptly provide Oracle with any nonforty-public information concerning Siebel’s business, present or future performance, financial condition or results of operations, provided to any Qualified Third Party after the date of this Agreement in connection with an Acquisition Proposal made by such Third Party that was not previously provided to Oracle. Siebel shall keep Oracle promptly and reasonably informed, on a reasonably current basis, of the status and material details of any such Acquisition Proposal, inquiry or request. Siebel shall, and shall cause its Subsidiaries and the Siebel Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party with respect to any Acquisition Proposal and shall instruct any such Third Party (or its agents or advisors) in possession of confidential information about Siebel that was furnished by or on behalf of Siebel with respect to any Acquisition Proposal within the six months prior to the date hereof to return or destroy all such information.eight
Appears in 1 contract
Samples: Business Separation and Merger Agreement (Coca Cola Co)
No Solicitation; Other Offers. (a) Neither Siebel Except as otherwise expressly provided in this Agreement, from and after the date of this Agreement until the Second Closing or, if earlier, the termination of this Agreement in accordance with its terms, neither Origin Agritech nor any of its Subsidiaries subsidiaries shall, nor shall Siebel Origin Agritech or any of its Subsidiaries subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants accountants, consultants or other agents, representatives agents or advisors (the “Siebel Representatives”) to, directly or indirectly, (i) solicit, initiate, initiate or knowingly take any action to facilitate or knowingly encourage the submission of any Acquisition Competing Proposal, (ii) enter into or participate in any discussions or negotiations with, or furnish any material non-public information relating to Siebel Origin Agritech or any of its Subsidiaries to or afford access to the businesssubsidiaries to, properties, assets, books or records of Siebel or any of its Subsidiaries to any Third Party that has made, or has informed Siebel that it is seeking relating to make, an Acquisition a Competing Proposal, (iii) grant any Third Party waiver fail to make, withdraw or release under any standstill modify in a manner adverse to Buyer the Origin Board Recommendation (or similar agreement with respect to any class of equity securities of Siebel or recommend a Competing Proposal) (any of its Subsidiaries or amend or terminate the Siebel Rights Plan or redeem the Siebel Rights foregoing in this clause (iii), an “Adverse Recommendation Change”) or (iv) enter into any agreement (except for confidentiality agreementsin principle, referred to in Section 6.04(b)) with any Third Party with respect to an Acquisition Proposal made by such Third Partyletter of intent, or any other term sheet, merger agreement, arrangement acquisition agreement, option agreement or understanding requiring it other similar instrument relating to abandon, terminate or fail to consummate the Mergers or any of the other transactions contemplated by this Agreementa Competing Proposal.
(b) Notwithstanding anything to the contrary contained in this AgreementSection 5.07(a), Siebel (through one or more of the Siebel Representatives) or its Board of Directors may, at any time prior to the Siebel Stockholder Approval, date that the Shareholder Approval is obtained:
(i) Origin Agritech, directly or indirectly through advisors, agents or other intermediaries, may (A) engage in negotiations or discussions with any Third Party (and its Representatives or with the representatives of any Third Party) financing sources that has made an Acquisition after the date of this Agreement a bona fide Competing Proposal not solicited in violation that the board of Section 6.03(a) if such Acquisition Proposal constitutes or directors of Origin Agritech reasonably believes could reasonably be expected to lead to a Superior Proposal and (such Third Party, a “Qualified Third Party”), (iiB) furnish to such Qualified Third Party or its representatives Representatives or financing sources non-public information relating to Siebel Origin Agritech or any of its Subsidiaries subsidiaries pursuant to an executed a confidentiality agreement containing customary nondisclosure provisions (which need not include “standstill ” or similar provisions) (and a copy of which shall be promptly (in all events within 24 hours) provided for informational purposes only to Oracle)Buyer) with such Third Party; provided that all such information (to the extent that such information has not been previously provided or made available to Buyer) is provided or made available to Buyer, as the case may be, prior to or substantially concurrently with the time it is provided or made available to such Third Party;
(ii) the board of directors of Origin Agritech may make an Adverse Recommendation Change; and
(iii) grant subject to compliance with the procedures set forth in Section 10.01(c)(i), Origin Agritech may terminate this Agreement to enter into a waiver or release under any standstill or similar definitive agreement with respect to any class of equity securities of Siebel or any of its Subsidiaries, (iv) amend or terminate the Siebel Rights Plan or redeem the Siebel Rights, (v) withdraw the Siebel Board Recommendation or modify the Siebel Board Recommendation in a manner adverse to Oracle (any such action, a “Change in Recommendation”), (vi) terminate this Agreement pursuant to and subject to the terms of Section 9.01(d) and/or (vii) take any action that any court of competent jurisdiction orders Siebel, one or more of the Siebel Representatives or the Board of Directors of Siebel to take, but Superior Proposal; in each case referred to in the foregoing clauses (iiii), (ivii) and (viii) only if the Board board of Directors directors of Siebel Origin Agritech determines in good faith by a majority votefaith, after consultation with its outside legal counsel, that the failure to take such action would could be reasonably likely to result in a breach of inconsistent with its fiduciary duties under applicable Applicable Law. Nothing In addition, nothing contained herein shall prevent the Board board of Directors directors of Siebel Origin Agritech from (i) complying with Rule 14e-2(a), Rule 14d-9 and Item 1012(a) of Regulation M-A under the 1934 Exchange Act with regard to an Acquisition Proposala Competing Proposal so long as any action taken or statement made to so comply is consistent with this Section 5.07; provided that any such action taken or statement made that relates to a Competing Proposal shall be deemed to be an Adverse Recommendation Change unless the board of directors of Origin Agritech reaffirms the Origin Board of Directors of Siebel shall not recommend that Siebel’s stockholders tender shares of capital stock Recommendation in such statement or in connection with any tender such action or exchange offer unless such Board (ii) issuing a “stop, look and listen” disclosure or similar communication of Directors shall have determined in good faith the type contemplated by a majority vote, after consultation with its outside legal counsel, that failure to make such recommendation would be reasonably likely to result in a breach of its fiduciary duties Rule 14d-9(f) under applicable Lawthe Exchange Act.
(c) The Board of Directors of Siebel shall not take any of the actions referred to in clauses (i) through (vii) of the preceding subsection unless Siebel shall have delivered to Oracle a prior written notice advising Oracle that it intends to take such action. In addition, Siebel Origin Agritech shall notify Oracle Buyer promptly (but in no event later than 24 hourstwo Business Days) after an officer or director first obtains Knowledge of the receipt by Siebel Origin Agritech (or any of the Siebel its Representatives) of any Acquisition Competing Proposal, any inquiry that would reasonably be expected including of the material terms and conditions thereof, and shall, at Buyer’s request, use its reasonable best efforts to lead keep Buyer informed as to an Acquisition the status (including changes to the material terms) of such Competing Proposal, or . Origin Agritech shall also notify Buyer promptly (but in no event later than two Business Days) after receipt by Origin Agritech of any request for confidential non-public information relating to Siebel Origin Agritech or any of its Subsidiaries subsidiaries or for access to the business, properties, assets, books or records of Siebel Origin Agritech or any of its Subsidiaries subsidiaries by any Third Party that has informed Siebel that it is may be considering making, or has made, an Acquisition Competing Proposal. Siebel shall provide .
(d) Notwithstanding anything to the contrary in this Agreement, no Adverse Recommendation Change may be made and no termination of this Agreement pursuant to Section 5.07(b)(iii) may be effected, in each case until after the fifth Business Day following Buyer’s receipt of written notice from Origin Agritech advising Buyer that the board of directors of Origin Agritech intends to make an Adverse Recommendation Change pursuant to clause (ii) of Section 5.07(b) (a “Notice of Adverse Recommendation Change”) or terminate this Agreement pursuant to clause (iii) of Section 5.07(b) (a “Notice of Superior Proposal”); provided that, (i) such notice orally and shall specify, in writing and shall identify reasonable detail, the Third Party makingreasons therefor, and including, if the basis of the proposed action by Origin Agritech’s board of directors is (A) a Superior Proposal, the material terms and conditions of, any such Acquisition Proposal, inquiry or request. Siebel shall promptly provide Oracle with any non-public information concerning Siebel’s business, present or future performance, financial condition or results of operations, provided to any Qualified Third Party after the date of this Agreement in connection with an Acquisition Proposal made by such Third Party that was not previously provided to Oracle. Siebel shall keep Oracle promptly and reasonably informed, on a reasonably current basis, of the status and material details of any such Acquisition Superior Proposal, inquiry or request. Siebel the identity of the Third Party making any such Superior Proposal and a copy of the Superior Proposal and any proposed agreements and financing commitments relating thereto and (B) an Intervening Event, a reasonably detailed description of the Intervening Event, (ii) during such five Business Day period (the “Notice Period”), if requested by Buyer, Origin Agritech shall, and shall cause make available and direct its Subsidiaries and the Siebel necessary Representatives to, cease immediately discuss and cause negotiate in good faith with Buyer and Buyer’s Representatives any proposed modifications to the terms and conditions of this Agreement; and (iii) following such Notice Period, (x) in the case of an Intervening Event, Origin Agritech’s board of directors, after taking into account any modifications to the terms of this Agreement and/or the transactions contemplated hereby to which Buyer would agree, determines in good faith, after consultation with outside legal counsel, that failure to effect such Adverse Recommendation Change could reasonably be expected to be terminated inconsistent with its fiduciary duties under Applicable Law or (y) in the case of a Superior Proposal, Origin Agritech’s board of directors, after taking into account any revisions to the terms of this Agreement and/or the transactions contemplated hereby to which Buyer would agree, determines in good faith, after consultation with outside legal counsel and financial advisors, that such Competing Proposal continues to constitute a Superior Proposal. Any such purported termination to enter into a definitive agreement for a Superior Proposal shall not be effective unless and until Origin Agritech pays the Origin Termination Fee in full. Any material change to (1) the facts or circumstances relating to such Intervening Event or (2) the terms (including any change to the financial terms) or any other material amendment of such Superior Proposal shall require a new Notice of Adverse Recommendation Change or Notice of Superior Proposal, as applicable, and Origin Agritech shall be required to comply again with the requirements of this Section 5.07(d), except that the Notice Period in such case shall be two Business Days.
(e) For purposes of this Agreement, “Superior Proposal” means a bona fide, unsolicited Competing Proposal (with all existing activities, discussions or negotiations, if any, with any percentages in the definition of Competing Proposal increased to 50%) made by a Third Party with respect on terms that the Board of Directors of Origin Agritech determines in good faith by a majority vote, after considering the advice of its financial and legal advisors, are more favorable to Origin Agritech and its shareholders than as provided hereunder (including any Acquisition Proposal and shall instruct any such Third Party (or its agents or advisors) in possession of confidential information about Siebel that was furnished by or on behalf of Siebel with respect to any Acquisition Proposal within the six months prior revisions to the date hereof terms of this Agreement and/or the transactions contemplated hereby committed to return or destroy all by Buyer to Origin Agritech in writing in response to such informationCompeting Proposal under the provisions of Section 5.07(d)).
Appears in 1 contract
No Solicitation; Other Offers. (a) Neither Siebel the Company nor any of its Subsidiaries shall, nor shall Siebel the Company or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants accountants, consultants or other agents, representatives agents or advisors (the “Siebel Representatives”) to, directly or indirectly, (i) solicit, initiate, initiate or knowingly take any action to facilitate or knowingly encourage the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any non-public information relating to Siebel the Company or any of its Subsidiaries to or afford access to the business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries to to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that has made, or has informed Siebel that it is seeking to make, or has made, an Acquisition Proposal, (iii) grant any Third Party waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel the Company or any of its Subsidiaries Subsidiaries, (iv) take any action to render the Company Rights issued pursuant to the terms of the Rights Agreement inapplicable to an Acquisition Proposal or amend the transactions contemplated thereby, exempt or terminate exclude any person from the Siebel definition of an Acquiring Person (as defined by the Rights Plan or redeem Agreement) under the Siebel terms of the Rights Agreement or, other than as contemplated by this Agreement in connection with the Offer, allow the Company Rights to expire prior to their expiration date or (ivv) enter into any agreement (except for confidentiality agreements, referred to in Section 6.04(b)) with any Third Party with respect to an Acquisition Proposal made by such Third Party, or any other agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Mergers or any of the other transactions contemplated by this AgreementProposal.
(b) Notwithstanding anything to the contrary contained in this Agreementforegoing, Siebel (the Company Board, directly or indirectly through one advisors, agents or more of the Siebel Representatives) or its Board of Directors mayother intermediaries, prior to the Siebel Stockholder Approval, may (i) engage in negotiations or discussions with any Third Party (or with that, without prior solicitation after the representatives of any Third Party) that date hereof by the Company, has made an a bona fide Acquisition Proposal not solicited in violation of Section 6.03(a) if such Acquisition Proposal constitutes or could that the Company Board reasonably be expected to believes will lead to a Superior Proposal (such Third Party, a “Qualified Third Party”)Proposal, (ii) furnish to such Qualified Third Party or its representatives non-public nonpublic information relating to Siebel the Company or any of its Subsidiaries pursuant to an executed a confidentiality agreement containing customary nondisclosure provisions with terms no less favorable in the aggregate to the Company than those contained in the Confidentiality Agreement (which need not include “standstill ” or similar provisions) (and a copy of which shall be promptly (in all events within 24 hours) provided simultaneously to Parent for informational purposes only to Oracleonly), (iii) grant following receipt of a waiver or release under any standstill or similar agreement with respect Superior Proposal, fail to any class of equity securities of Siebel or any of its Subsidiariesmake, (iv) amend or terminate the Siebel Rights Plan or redeem the Siebel Rights, (v) withdraw the Siebel Board Recommendation or modify the Siebel Board Recommendation in a manner adverse to Oracle (any such action, a “Change Parent its recommendation to its stockholders referred to in Recommendation”), (vi) terminate this Agreement pursuant to Sections 2.02 and subject to the terms of Section 9.01(d) 7.02 hereof and/or (viiiv) take any nonappealable, final action that any court of competent jurisdiction orders Siebel, one or more of the Siebel Representatives or the Board of Directors of Siebel Company to take, but in each case referred to in the foregoing clauses (i) through (iii), (iv) and (v) only if the Company Board of Directors of Siebel determines in good faith by a majority votevote of independent directors, after consultation with its Gxxxxx Dxxx & Cxxxxxxx LLP or Cleary, Gottlieb, Sxxxx & Hxxxxxxx, outside legal counselcounsel to the Company, that failure to it must take such action would be reasonably likely to result in a breach of comply with its fiduciary duties under applicable Lawlaw. Nothing contained herein shall prevent the Company Board of Directors of Siebel from complying with Rule 14e-2(a), Rule 14d-9 and Item 1012(a) of Regulation M-A under the 1934 Exchange Act with regard to an Acquisition Proposal; provided that the Board of Directors of Siebel shall not recommend that Siebel’s stockholders tender shares of capital stock in connection with any tender or exchange offer unless such Board of Directors shall have determined in good faith by a majority vote, after consultation with its outside legal counsel, that failure to make such recommendation would be reasonably likely to result in a breach of its fiduciary duties under applicable Law.
(c) The Company Board of Directors of Siebel shall not take any of the actions referred to in clauses (ib)(i) through (viib)(iii) of the preceding subsection unless Siebel the Company shall have delivered to Oracle Parent a prior written notice advising Oracle Parent that it intends to take such action, and the Company shall continue to advise Parent after taking such action. In addition, Siebel the Company shall notify Oracle Parent promptly (but in no event later than 24 hours) after an officer or director first obtains Knowledge of the receipt by Siebel (or any of the Siebel Representatives) Company of any Acquisition Proposal, any inquiry that would reasonably be expected to lead to an Acquisition Proposal, material modification of such proposal or any request for confidential information relating to Siebel the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries by any Third Party that has informed Siebel that it that, to the knowledge of the Company, is considering making, or has made, an Acquisition Proposal. Siebel The Company shall provide such notice orally and in writing and shall identify the Third Party making, and the material terms and conditions of, any such Acquisition Proposal, inquiry indication or request. Siebel shall promptly provide Oracle with any non-public information concerning Siebel’s business, present or future performance, financial condition or results of operations, provided to any Qualified Third Party after the date of this Agreement in connection with an Acquisition Proposal made by such Third Party that was not previously provided to Oracle. Siebel The Company shall keep Oracle promptly and reasonably Parent fully informed, on a reasonably current basis, of the status and material details of any such Acquisition Proposal, inquiry indication or request. Siebel The Company shall, and shall cause its Subsidiaries and the Siebel Representatives advisors, employees and other agents of the Company and any of its Subsidiaries to, cease immediately and cause to be terminated any and all existing activities, discussions or and negotiations, if any, with any Third Party conducted prior to the date hereof with respect to any Acquisition Proposal and shall instruct use its reasonable best efforts to cause any such Third Party (or its agents or advisors) in possession of confidential information about Siebel the Company that was furnished by or on behalf of Siebel with respect to any Acquisition Proposal within the six months prior to the date hereof Company to return or destroy all such information.
Appears in 1 contract
Samples: Merger Agreement (Peoplesoft Inc)
No Solicitation; Other Offers. (a) Neither Siebel the Company nor any of its Subsidiaries shall, nor shall Siebel the Company or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants accountants, consultants or other agents, representatives agents or advisors (the “Siebel Representatives”) to, directly or indirectly, (i) solicit, initiate, knowingly initiate or take any action to facilitate or knowingly encourage the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any non-public information relating to Siebel the Company or any of its Subsidiaries to or afford access to the business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries to to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that has made, or has informed Siebel that it is seeking to make, or has made, an Acquisition Proposal, (iii) grant any Third Party waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel the Company or any of its Subsidiaries or amend or terminate the Siebel Rights Plan or redeem the Siebel Rights or (iv) enter into any agreement (except for confidentiality agreements, referred to in Section 6.04(b)) with any Third Party with respect to an Acquisition Proposal made by such Third Party, or any other agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Mergers or any of the other transactions contemplated by this AgreementProposal.
(b) Notwithstanding anything to the contrary contained in this Agreementforegoing, Siebel (through one or more of the Siebel Representatives) or its Board of Directors mayof the Company, prior to the Siebel Stockholder Approvaldirectly or indirectly through advisors, agents or other intermediaries, may (i) engage in negotiations or discussions with any Third Party (or that, subject to the Company's compliance with the representatives of any Third Party) that Section 7.3(a), has made an unsolicited Acquisition Proposal not solicited in violation that the Board of Section 6.03(a) if such Acquisition Proposal constitutes or could Directors of the Company reasonably be expected to believes will lead to a Superior Proposal (such Third Party, a “Qualified Third Party”)Proposal, (ii) furnish to such Qualified Third Party or its representatives non-public nonpublic information relating to Siebel the Company or any of its Subsidiaries pursuant to an executed a confidentiality agreement containing customary nondisclosure provisions (which need not include “standstill ” or similar provisions) (and a copy of which shall be promptly (in all events within 24 hours) provided for informational purposes only to Oracle), Parent) with terms no less favorable to the Company than those contained in the Confidentiality Agreement and/or (iii) grant a waiver or release under any standstill or similar agreement with respect following receipt of such Acquisition Proposal, fail to any class of equity securities of Siebel or any of its Subsidiariesmake, (iv) amend or terminate the Siebel Rights Plan or redeem the Siebel Rightswithdraw, (v) withdraw the Siebel Board Recommendation or modify the Siebel Board Recommendation in a manner adverse to Oracle (any such action, a “Change Parent its recommendation to its stockholders referred to in Recommendation”), (vi) terminate this Agreement pursuant to and subject to the terms of Section 9.01(d) and/or (vii) take any action that any court of competent jurisdiction orders Siebel, one or more of the Siebel Representatives or the Board of Directors of Siebel to take, 7.2 hereof; but in each case referred to in the foregoing clauses (i) through (iii), (iv) and (v) only if the Board of Directors of Siebel the Company determines in good faith by a majority vote, after consultation with its outside legal counselcounsel to the Company, that failure to take taking such action would be reasonably likely is in the best interests of the Company and its stockholders and that such action is necessary to result in a breach of comply with its fiduciary duties under applicable Law. Nothing contained herein shall prevent the Board of Directors of Siebel from complying with Rule 14e-2(a), Rule 14d-9 and Item 1012(a) of Regulation M-A under the 1934 Act with regard to an Acquisition Proposal; provided that the Board of Directors of Siebel shall not recommend that Siebel’s stockholders tender shares of capital stock in connection with any tender or exchange offer unless such Board of Directors shall have determined in good faith by a majority vote, after consultation with its outside legal counsel, that failure to make such recommendation would be reasonably likely to result in a breach of its fiduciary duties under applicable Maryland Law.
(c) The Board of Directors of Siebel the Company shall not take any of the actions referred to in clauses (i) through (viiiii) of the preceding subsection unless Siebel the Company shall have delivered to Oracle Parent a prior written notice advising Oracle Parent that it intends to take such action, and the Company shall continue to advise Parent after taking such action. In addition, Siebel the Company shall notify Oracle Parent promptly (but in no event later than 24 hours) after an officer or director first obtains Knowledge of the receipt by Siebel the Company (or any of the Siebel Representativesits advisors) of any Acquisition Proposal, any inquiry indication that would reasonably be expected to lead to a Third Party is considering making an Acquisition Proposal, Proposal or of any request for confidential information relating to Siebel the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries by any Third Party that has informed Siebel that it is may be considering making, or has made, an Acquisition Proposal. Siebel The Company shall provide such notice orally and in writing and shall identify the Third Party making, and the material terms and conditions of, any such Acquisition Proposal, inquiry indication or request. Siebel shall promptly provide Oracle with any non-public information concerning Siebel’s business, present or future performance, financial condition or results of operations, provided to any Qualified Third Party after the date of this Agreement in connection with an Acquisition Proposal made by such Third Party that was not previously provided to Oracle. Siebel The Company shall keep Oracle promptly and reasonably Parent fully informed, on a reasonably current basis, of the status and material details of any such Acquisition Proposal, inquiry indication or request. Siebel The Company shall, and shall cause its Subsidiaries and the Siebel Representatives advisors, employees and other agents of the Company and any of its Subsidiaries to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to the date hereof with respect to any Acquisition Proposal and shall instruct use its reasonable best efforts to cause any such Third Party (or its agents or advisors) in possession of confidential information about Siebel the Company that was furnished by or on behalf of Siebel with respect to any Acquisition Proposal within the six months prior to the date hereof Company to return or destroy all such information.
Appears in 1 contract
No Solicitation; Other Offers. (a) (i) General Prohibitions. Neither Siebel the Company nor any of its Subsidiaries shall, nor shall Siebel the Company or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants accountants, consultants or other agents, representatives agents or advisors (the “Siebel Representatives”) to, directly or indirectly, (iA) solicit, initiate, initiate or knowingly take any action to facilitate or knowingly encourage the submission of any Acquisition Proposal, (iiB) enter into or participate in any discussions or negotiations with, furnish any non-public information relating to Siebel the Company or any of its Subsidiaries to or afford access to the business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries to to, knowingly assist, participate in, facilitate or encourage any effort by any Third Party that has made, or has informed Siebel that it is seeking to make, make or could be reasonably expected to make an Acquisition Proposal, (iiiC) fail to make, withdraw or modify in a manner adverse to Parent the Company Board Recommendation (or recommend an Acquisition Proposal or knowingly take any action or make any statement inconsistent with the Company Board Recommendation) (any of the foregoing in this clause (C), an “Adverse Recommendation Change”), (D) fail to enforce or grant any Third Party waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel or any of its Subsidiaries or amend or terminate the Siebel Rights Plan or redeem the Siebel Rights or (iv) enter into any agreement (except for confidentiality agreements, referred to in Section 6.04(b)) with any Third Party with respect to an Acquisition Proposal made by such Third Party, or any other agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Mergers or any of the other transactions contemplated by this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, Siebel (through one or more of the Siebel Representatives) or its Board of Directors may, prior to the Siebel Stockholder Approval, (i) engage in negotiations or discussions with any Third Party (or with the representatives of any Third Party) that has made an Acquisition Proposal not solicited in violation of Section 6.03(a) if such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal (such Third Party, a “Qualified Third Party”), (ii) furnish to such Qualified Third Party or its representatives non-public information relating to Siebel or any of its Subsidiaries pursuant to an executed confidentiality agreement containing customary nondisclosure provisions (which need not include “standstill ” or similar provisions) (and a copy of which shall be promptly (in all events within 24 hours) provided for informational purposes only to Oracle), (iii) grant a waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel Company or any of its Subsidiaries, (ivE) amend or terminate the Siebel Rights Plan or redeem the Siebel Rights, (v) withdraw the Siebel Board Recommendation or modify the Siebel Board Recommendation in a manner adverse to Oracle (approve any such action, a “Change in Recommendation”), (vi) terminate this Agreement pursuant to and subject to the terms of Section 9.01(d) and/or (vii) take any action that any court of competent jurisdiction orders Siebel, one or more of the Siebel Representatives or the Board of Directors of Siebel to take, but in each case referred to in the foregoing clauses (iii), (iv) and (v) only if the Board of Directors of Siebel determines in good faith by a majority vote, after consultation with its outside legal counsel, that failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Law. Nothing contained herein shall prevent the Board of Directors of Siebel from complying with Rule 14e-2(a), Rule 14d-9 and Item 1012(a) of Regulation M-A business combination under the 1934 New Jersey Shareholders’ Protection Act with regard or (F) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument relating to an Acquisition Proposal; provided . It is agreed that the Board of Directors of Siebel shall not recommend that Siebel’s stockholders tender shares of capital stock in connection with any tender or exchange offer unless such Board of Directors shall have determined in good faith by a majority vote, after consultation with its outside legal counsel, that failure to make such recommendation would be reasonably likely to result in a breach of its fiduciary duties under applicable Law.
(c) The Board of Directors of Siebel shall not take any violation of the actions referred to restrictions on the Company set forth in clauses (i) through (vii) this Section by any Representative of the preceding subsection unless Siebel shall have delivered to Oracle a prior written notice advising Oracle that it intends to take such action. In addition, Siebel shall notify Oracle promptly (but in no event later than 24 hours) after an officer or director first obtains Knowledge of the receipt by Siebel (or any of the Siebel Representatives) of any Acquisition Proposal, any inquiry that would reasonably be expected to lead to an Acquisition Proposal, or any request for confidential information relating to Siebel Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of Siebel or any of its Subsidiaries by any Third Party that has informed Siebel that it is considering making, or has made, an Acquisition Proposal. Siebel shall provide such notice orally and in writing and shall identify the Third Party making, and the material terms and conditions of, any such Acquisition Proposal, inquiry or request. Siebel shall promptly provide Oracle with any non-public information concerning Siebel’s business, present or future performance, financial condition or results of operations, provided to any Qualified Third Party after the date be a breach of this Agreement in connection with an Acquisition Proposal made Section by such Third Party that was not previously provided to Oracle. Siebel shall keep Oracle promptly and reasonably informed, on a reasonably current basis, of the status and material details of any such Acquisition Proposal, inquiry or request. Siebel shall, and shall cause its Subsidiaries and the Siebel Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party with respect to any Acquisition Proposal and shall instruct any such Third Party (or its agents or advisors) in possession of confidential information about Siebel that was furnished by or on behalf of Siebel with respect to any Acquisition Proposal within the six months prior to the date hereof to return or destroy all such informationCompany.
Appears in 1 contract
No Solicitation; Other Offers. (a) Neither Siebel nor any of The Company shall not, shall cause its Subsidiaries shall, nor shall Siebel or any of and its and its Subsidiaries authorize or permit any of its or their respective officers, directorsdirectors and employees not to, employees, investment bankers, attorneys, accountants or other agents, representatives or advisors (and shall direct and use reasonable best efforts to cause the “Siebel Representatives”) Company Representatives not to, directly or indirectly, :
(i) solicit, initiate, propose, induce, or take any action to knowingly facilitate facilitate, assist or knowingly encourage the submission of encourage, any Acquisition Proposal or any offer, proposal, inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal, ;
(ii) enter into or participate in disclose any discussions or negotiations with, furnish any non-public information relating to Siebel the Company or any of its Subsidiaries to Subsidiaries, or afford access to the business, properties, assets, books or records of Siebel the Company to any Person in relation to any Acquisition Proposal or any offer, proposal, inquiry or indication of its Subsidiaries interest that could reasonably be expected to any Third Party that has made, or has informed Siebel that it is seeking lead to make, an Acquisition Proposal, ;
(iii) grant any Third Party waiver conduct, participate or release under any standstill engage in discussions or similar agreement with respect to any class of equity securities of Siebel or any of its Subsidiaries or amend or terminate the Siebel Rights Plan or redeem the Siebel Rights or (iv) enter into any agreement (except for confidentiality agreements, referred to in Section 6.04(b)) negotiations with any Third Party Person with respect to an Acquisition Proposal made by or any offer, proposal, inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal (for the avoidance of doubt, it being understood that the foregoing shall not prohibit the Company or any Company Representatives from making a communication that does no more than make such Third PartyPerson aware of the restrictions of this Section 6.03);
(iv) terminate, waive, amend or modify any provision of, or grant permission under, any standstill, confidentiality agreement or similar Contract to which the Company or any Subsidiary of the Company is a party;
(v) approve any transaction under, or any other third person becoming an “interested shareholder” under, Section 778 of the MBCA (except a transaction involving Parent, Merger Subsidiary or their respective Affiliates); or
(vi) enter into, any merger agreement, arrangement letter of intent, term sheet, agreement in principle, memorandum of understanding, share purchase agreement, asset purchase agreement, share exchange agreement, option agreement, joint venture agreement, partnership agreement or understanding other similar Contract constituting, relating to or that is intended to or is reasonably likely to lead to an Acquisition Proposal (an “Alternative Acquisition Agreement”), or enter into any Contract or agreement in principle requiring it the Company to abandon, terminate or fail to consummate the Mergers Transactions, or resolve or agree to take any of the other transactions contemplated by this Agreement.
(b) foregoing actions. Notwithstanding anything to the contrary contained in this Agreement, Siebel (through one or more of the Siebel Representatives) or its Board of Directors may, prior to the Siebel Stockholder Approval, (i) engage in negotiations or discussions with any Third Party (or with the representatives of any Third Party) that has made an Acquisition Proposal not solicited in violation of Section 6.03(a) if such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal (such Third Party, a “Qualified Third Party”6.03(a)(iv), (ii) furnish to such Qualified Third Party or its representatives non-public information relating to Siebel or any of its Subsidiaries pursuant to an executed confidentiality agreement containing customary nondisclosure provisions (which need not include “standstill ” or similar provisions) (and a copy of which shall be promptly (in all events within 24 hours) provided for informational purposes only to Oracle), (iii) grant a waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel or any of its Subsidiaries, (iv) amend or terminate the Siebel Rights Plan or redeem the Siebel Rights, (v) withdraw the Siebel Board Recommendation or modify the Siebel Board Recommendation in a manner adverse to Oracle (any such action, a “Change in Recommendation”), (vi) terminate this Agreement pursuant to and subject to the terms of Section 9.01(d) and/or (vii) take any action that any court of competent jurisdiction orders Siebel, one or more of the Siebel Representatives or the Board of Directors of Siebel to take, but in each case referred to in the foregoing clauses (iii), (iv) and (v) only if the Board of Directors of Siebel determines in good faith by a majority votefaith, after consultation with its outside legal counsel, that any failure to take such action do so would be reasonably likely to result in a breach of inconsistent with its fiduciary duties under applicable Law. Nothing contained herein law, the Company shall prevent be permitted on a confidential basis, upon written request by a relevant party to a standstill, confidentiality agreement or similar Contract to release or waive any standstill obligations solely to the extent necessary to permit the party referred to therein to submit an Acquisition Proposal to the Board of Directors on a confidential basis. The Company shall provide prior written notice to Parent of Siebel any waiver or release of any standstill by the Company, including disclosure of the identities of the parties thereto and circumstances relating thereto, and shall otherwise comply with the provisions of this Section 6.03 with respect to any Acquisition Proposal of or from complying with Rule 14e-2(a), Rule 14d-9 and Item 1012(a) of Regulation M-A under the 1934 Act with regard to an Acquisition Proposal; provided that the Board of Directors of Siebel shall not recommend that Siebel’s stockholders tender shares of capital stock in connection with any tender or exchange offer unless such Board of Directors shall have determined in good faith by a majority vote, after consultation with its outside legal counsel, that failure to make such recommendation would be reasonably likely to result in a breach of its fiduciary duties under applicable Lawparty.
(cb) The Board of Directors of Siebel Company shall, and shall not take cause its Subsidiaries to, and shall direct the Company Representatives to, cease immediately and cause to be terminated immediately all activities, solicitation, encouragement, discussions and negotiations, if any, with any of Persons conducted prior to the actions referred date hereof with respect to in clauses (i) through (vii) of the preceding subsection unless Siebel shall have delivered to Oracle a prior written notice advising Oracle that it intends to take such action. In addition, Siebel shall notify Oracle promptly (but in no event later than 24 hours) after an officer or director first obtains Knowledge of the receipt by Siebel (any Acquisition Proposal or any offer, proposal, inquiry or indication of the Siebel Representatives) of any Acquisition Proposal, any inquiry interest that would could reasonably be expected to lead to an Acquisition Proposal, and, promptly after the execution and delivery of this Agreement, demand the return or destruction of all confidential information provided by or on behalf of the Company or any Subsidiary of the Company to any Person prior to the date hereof.
(c) Notwithstanding Section 6.03(a), prior to the time the Company Requisite Vote is obtained, the Company may negotiate or otherwise engage in discussions with, furnish nonpublic information to, and terminate, waive, amend or modify any standstill, confidentiality agreement or similar Contract to which the Company or any Subsidiary of the Company is a party with any Person in response to a bona fide, unsolicited written Acquisition Proposal made by such Person following the date hereof that has not been withdrawn if (i) the Board of Directors determines in good faith after consultation with its outside legal counsel and the Company Financial Advisor that such Acquisition Proposal would reasonably be expected to result in a Superior Proposal and (ii) such Person executes a confidentiality agreement no less favorable to the Company than the Confidentiality Agreement (a copy of which confidentiality agreement shall be promptly provided for informational purposes only to Parent); provided that (A) the Company did not receive such Acquisition Proposal in connection with or as a result of a breach or violation of the terms of this Section 6.03; (B) prior to taking any action under this Section 6.03(c), the Company has provided Parent with the notice described in Section 6.03(d); and (C) contemporaneously with furnishing any information to such Person (or such Person’s representatives), the Company furnishes such information to Parent (to the extent such information has not been previously furnished by the Company to Parent). Notwithstanding the foregoing, the Board of Directors may only take the actions described in this Section 6.03(c) if the Board of Directors determines in good faith, after consultation with outside legal counsel, that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law.
(d) The Company shall promptly (but in no case later than 36 hours) (i) notify Parent of (A) any Acquisition Proposal, (B) any offer, proposal, inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal, (C) any request for confidential nonpublic information relating to Siebel the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries by Subsidiaries; (ii) provide Parent with the identity of the Person making such Acquisition Proposal, offer, proposal, inquiry or indication of interest or request; (iii) provide Parent with a copy of any Third Party written Acquisition Proposal, offer, proposal, inquiry or indication of interest (or amendments or supplements thereto or any other written communications between the Company and the Person making the Acquisition Proposal or such Person’s representatives) or, if not in writing, a written description of the material terms thereof; (iv) keep Parent reasonably informed of the status of any discussions or negotiations with such a third party and any material changes to the terms and conditions of any such Acquisition Proposal, offer, proposal, offer or indication of interest; and (v) deliver to Parent a copy of any information delivered to such Person that has informed Siebel not previously been delivered by the Company to Parent. The Company shall not, and shall cause its Subsidiaries not to, enter into any Contract with any Person that it is considering makingprohibits the Company from providing the information described in Section 6.03(c) or this Section 6.03(d) to Parent.
(e) Except as expressly permitted by Section 6.03(f) and Section 6.03(g), neither the Board of Directors nor any committee thereof shall:
(i) withhold, withdraw, qualify or modify in a manner adverse to Parent (or publicly propose to withhold, withdraw, qualify or modify) the Company Recommendation;
(ii) take any action not explicitly permitted by this Agreement that would be inconsistent with its approval of the Merger;
(iii) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal;
(iv) within ten (10) Business Days of the public announcement of the commencement of a tender offer or exchange offer for Shares that constitutes an Acquisition Proposal by a person other than Parent or any of its Subsidiaries, fail to file a Schedule 14D-9 pursuant to Rule 14e-2 and Rule 14d-9 promulgated under the 1934 Act recommending that the holders of Common Shares reject such Acquisition Proposal and not tender any Shares into such tender offer or exchange offer;
(v) approve or recommend, or publicly declare advisable or publicly propose to enter into, or cause the Company to enter into, any Alternative Acquisition Agreement or any Contract or agreement in principle requiring the Company to abandon, terminate or fail to consummate the Transactions; or
(vi) fail to include the Company Recommendation in the Proxy Statement (any action described in the foregoing clauses (i) through this (vi), even if permitted by Section 6.03(f) or Section 6.03(g), being referred to as an “Adverse Recommendation Change”);
(f) Notwithstanding Section 6.03(e), the Board of Directors may, at any time prior to receipt of the Company Requisite Vote and in response to a bona fide written Superior Proposal received by the Board of Directors after the date of this Agreement that did not arise from a breach of the obligations set forth in this Section 6.03, make an Adverse Recommendation Change or terminate this Agreement pursuant to Section 10.01(c)(i) to enter into an Alternative Acquisition Agreement, but only if, prior to taking such action:
(i) the Company has made, received an Acquisition Proposal. Siebel , and the Board of Directors determines in good faith, after consultation with outside legal counsel and the Company Financial Advisor, that such Acquisition Proposal is a Superior Proposal;
(ii) the Board of Directors has determined in good faith, after consultation with its outside legal counsel, that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law;
(iii) the Company shall provide have provided prior written notice to Parent, at least four (4) Business Days in advance of such Adverse Recommendation Change or termination of this Agreement (the “Superior Proposal Notice Period”) or its intent to effect such an Adverse Recommendation Change (which notice orally and in writing and itself shall identify not constitute an Adverse Recommendation Change) or to terminate this Agreement to enter into an Alternative Acquisition Agreement implementing such Superior Proposal, which notice shall specify the Third Party making, basis upon which the Board of Directors intends to effect such Adverse Recommendation Change or terminate this Agreement and the material terms and conditions ofof such Superior Proposal (and the identity of the Person or group making such Superior Proposal), and shall have contemporaneously provided the execution draft of the relevant proposed definitive transaction agreements with the Person making such Superior Proposal and other material documents with respect to such Superior Proposal (including any with respect to the financing thereof); and
(iv) prior to effecting such Adverse Recommendation Change or terminating this Agreement to enter into an Alternative Acquisition Agreement implementing such Superior Proposal, inquiry or request. Siebel (A) if requested by Parent, during the Superior Proposal Notice Period, the Company shall promptly provide Oracle have negotiated, and shall have caused the Company Representatives to negotiate, with any non-public information concerning Siebel’s business, present or future performance, financial condition or results of operations, provided Parent in good faith to any Qualified Third Party after enable Parent to make such adjustments in the date terms and conditions of this Agreement in connection with an such that such Acquisition Proposal made by would cease to constitute a Superior Proposal, and (B) following the end of such Third Party that was not previously provided to Oracle. Siebel Superior Proposal Notice Period, the Board of Directors shall keep Oracle promptly have considered any such adjustments in good faith, and, after consultation with outside legal counsel and reasonably informedthe Company Financial Advisor, on a reasonably current basisthe Board of Directors shall have determined that, of notwithstanding the status and material details terms of any such Acquisition adjustments, such Superior Proposal continues to constitute a Superior Proposal. In the event of any amendment to the financial terms or any other material revisions to the Superior Proposal, inquiry the Company shall be required to deliver a new written notice to Parent pursuant to Section 6.03(f)(iii) and to comply with the requirements of this Section 6.03(f) with respect to such new written notice (including a new Superior Proposal Notice Period), except the Superior Proposal Notice Period shall be at least two (2) Business Days (rather than the four (4) Business Days contemplated by Section 6.03(f)(iii) above).
(g) Notwithstanding anything to the contrary set forth in Section 6.03(e), if the Board of Directors determines that an Intervening Event has occurred, the Board of Directors may, at any time prior to receipt of the Company Requisite Vote, make an Adverse Recommendation Change, but only if, prior to taking such action:
(i) the Board of Directors has determined in good faith, after consultation with its outside legal counsel, that in light of such Intervening Event, the failure to make an Adverse Recommendation Change would be inconsistent with its fiduciary duties under applicable Law;
(ii) the Company shall have provided prior written notice to Parent, at least four (4) Business Days in advance of such Adverse Recommendation Change (the “Intervening Event Notice Period”) or request. Siebel shallits intent to effect such an Adverse Recommendation Change (which notice itself shall not constitute an Adverse Recommendation Change), which notice shall specify the details of such Intervening Event and the basis upon which the Board of Directors intends to effect such Adverse Recommendation Change; and
(iii) prior to effecting such Adverse Recommendation Change, (A) if requested by Parent, during the Intervening Event Notice Period, the Company shall have negotiated, and shall cause have caused the Company Representatives to negotiate, with Parent in good faith to enable Parent to make such adjustments in the terms and conditions of this Agreement so that an Adverse Recommendation Change is no longer necessary, and (B) following the end of such Intervening Event Notice Period, the Board of Directors shall have considered any such adjustments in good faith, and after consultation with its Subsidiaries outside legal counsel and the Siebel Representatives toCompany Financial Advisor, cease immediately and cause the Board of Directors shall have determined that, notwithstanding the terms of any such adjustments, it would continue to be terminated inconsistent with the director’s fiduciary duties to the shareholders of the Company under applicable Law to not effect the Adverse Recommendation Change. In the event of any changes to the circumstances applicable to the Intervening Event, after the start of the Intervening Event Notice Period, the Company shall be required to deliver a new written notice to Parent pursuant to Section 6.03(g)(ii) and all existing activities, discussions or negotiations, if any, to comply with any Third Party the requirements of this Section 6.03(g) with respect to such new written notice (including a new Intervening Event Notice Period), except the Intervening Event Notice Period shall be at least two (2) Business Days (rather than the four (4) Business Days contemplated by Section 6.03(g)(ii) above).
(h) Nothing contained in this Agreement shall prohibit the Company from complying with Rules 14a-9, 14d-9 and 14e-2(a) promulgated under the 1934 Act, or from issuing a “stop, look and listen” statement pursuant to Rule 14d-9(f) pending disclosure of its position thereunder or making any Acquisition Proposal and shall instruct any such Third Party (or its agents or advisors) in possession of confidential information about Siebel that was furnished by or on behalf of Siebel with respect to any Acquisition Proposal within the six months prior required disclosure to the date hereof Company’s shareholders if, in the good faith judgment of the Board of Directors after consultation with its outside legal counsel, the failure to return or destroy all such informationdo so would be inconsistent with its fiduciary duties under applicable Law. For the avoidance of doubt, nothing in this Section 6.03(h) shall be construed to permit the Company to effect any Adverse Recommendation Change other than in accordance with Section 6.03(f) and Section 6.03(g).
Appears in 1 contract
Samples: Merger Agreement (Perceptron Inc/Mi)
No Solicitation; Other Offers. (a) Neither Siebel the Company nor any of its Subsidiaries shall, nor shall Siebel the Company or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants accountants, consultants or other agents, representatives agents or advisors (the “Siebel Representatives”) to, directly or indirectly, (i) solicit, initiate, knowingly facilitate initiate or knowingly encourage the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any non-public information relating to Siebel the Company or any of its Subsidiaries to or afford access to the business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries to to, otherwise cooperate in any way with, or knowingly assist, knowingly participate in, or knowingly encourage any effort by any Third Party that has made, or has informed Siebel that it is seeking to make, or has made, an Acquisition Proposal, (iii) grant any Third Party waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel the Company or any of its Subsidiaries or amend or terminate the Siebel Rights Plan or redeem the Siebel Rights or (iv) enter into any agreement (except for confidentiality agreements, referred to in Section 6.04(b)) with any Third Party with respect to an Acquisition Proposal made by such Third Party, or any other agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Mergers or any of the other transactions contemplated by this AgreementProposal.
(b) Notwithstanding anything to the contrary contained in this Agreementforegoing, Siebel (through one or more of the Siebel Representatives) or its Board of Directors mayDirectors, prior to the Siebel Stockholder Approvaldirectly or indirectly through advisors, agents or other intermediaries, may (i) engage in negotiations or discussions with any Third Party (or that, subject to the Company’s compliance with the representatives of any Third Party) that Section 7.04(a), has made an a bona fide Acquisition Proposal not solicited in violation that the Board of Section 6.03(a) if such Acquisition Proposal constitutes or could Directors reasonably be expected to believes will lead to a Superior Proposal (such Third Party, a “Qualified Third Party”)Proposal, (ii) furnish to such Qualified Third Party or its representatives non-public nonpublic information relating to Siebel the Company or any of its Subsidiaries pursuant to an executed a confidentiality agreement containing customary nondisclosure provisions with terms no less favorable to the Company than those contained in the Confidentiality Agreement Table of Contents (which need not include “standstill ” or similar provisions) (and a copy of which shall be promptly (in all events within 24 hours) provided for informational purposes only to OracleParent), (iii) grant a waiver or release under any standstill or similar agreement with respect following receipt of such Acquisition Proposal, fail to any class of equity securities of Siebel or any of its Subsidiariesmake, (iv) amend or terminate the Siebel Rights Plan or redeem the Siebel Rightswithdraw, (v) withdraw the Siebel Board Recommendation or modify the Siebel Board Recommendation in a manner adverse to Oracle (any such action, a “Change Parent its recommendation to its stockholders referred to in Recommendation”), (vi) terminate this Agreement pursuant to and subject to the terms of Section 9.01(d) Sections 2.02 and/or 7.02 hereof and/or (viiiv) take any non-appealable, final action that any court of competent jurisdiction orders Siebel, one or more of the Siebel Representatives or the Board of Directors of Siebel Company to take, but in each case referred to in the foregoing clauses (i) through (iii), (iv) and (v) only if the Board of Directors of Siebel determines in good faith by a majority vote, after consultation with its Xxxxxxxxxx, Xxxxx and Xxxxxxxx, LLP, outside legal counselcounsel to the Company, and Broadview International Limited, financial advisor to the Company, that failure to take such action would be reasonably likely to result in a breach of is consistent with its fiduciary duties under applicable Lawlaw. Nothing contained herein shall prevent the Board of Directors of Siebel from complying with Rule 14e-2(a), Rule 14d-9 and Item 1012(a) of Regulation M-A under the 1934 Act with regard to an Acquisition Proposal; provided that the Board of Directors of Siebel shall not recommend that Siebel’s stockholders tender shares of capital stock in connection with any tender or exchange offer unless such Board of Directors shall have determined in good faith by a majority vote, after consultation with its outside legal counsel, that failure to make such recommendation would be reasonably likely to result in a breach of its fiduciary duties under applicable Law.
(c) The Board of Directors of Siebel shall not take any of the actions referred to in clauses (i) through (viiiii) of the preceding subsection unless Siebel the Company shall have delivered to Oracle Parent a prior written notice advising Oracle Parent that it intends to take such action, and the Company shall continue to advise Parent after taking such action. In addition, Siebel the Company shall notify Oracle Parent promptly (but in no event later than 24 hours) after an officer or director first obtains Knowledge of the receipt by Siebel the Company (or any of the Siebel Representativesits advisors) of any Acquisition Proposal, any inquiry indication that would reasonably be expected to lead to any Third Party is considering making an Acquisition Proposal, Proposal or any request for confidential information relating to Siebel the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries by any Third Party that has informed Siebel that it is may be considering making, or has made, an Acquisition Proposal. Siebel The Company shall provide such notice orally and in writing and shall identify the Third Party making, and the material terms and conditions of, any such Acquisition Proposal, inquiry indication or request. Siebel shall promptly provide Oracle with any non-public information concerning Siebel’s business, present or future performance, financial condition or results of operations, provided to any Qualified Third Party after the date of this Agreement in connection with an Acquisition Proposal made by such Third Party that was not previously provided to Oracle. Siebel The Company shall keep Oracle promptly and reasonably Parent fully informed, on a reasonably current basis, of the status and material details of any such Acquisition Proposal, inquiry indication or request. Siebel The Company shall, and shall cause its Subsidiaries and the Siebel Representatives advisors, employees and other agents of the Company and any of its Subsidiaries to, cease immediately and cause to be terminated any and all existing activities, discussions or and negotiations, if any, with any Third Party conducted prior to the date hereof with respect to any Acquisition Proposal and shall instruct use its reasonable best efforts to cause any such Third Party (or its agents or advisors) in possession of confidential information about Siebel the Company that was furnished by or on behalf of Siebel with respect to any Acquisition Proposal within the six months prior to the date hereof Company to return or destroy all such information.
Appears in 1 contract
No Solicitation; Other Offers. (a) Neither Siebel nor The Company represents that, effective June 3, 2011, the Company and its Subsidiaries, and their respective Affiliates and Representatives, ceased any discussions, activities or negotiations with any Person or Persons (other than Parent or Merger Sub or their Representatives) that may have been ongoing at that time with respect to any Acquisition Proposal or seeking an Acquisition Proposal and, through the date hereof, none of them conducted any such discussions, or engaged in any such activities or negotiations. Subject to Section 5.02(b) and Section 5.02(e), from and after the date hereof until the earlier to occur of the Effective Time or the termination of this Agreement pursuant to Section 9.01:
(i) the Company shall not, and shall cause its Subsidiaries shall, nor shall Siebel or any of and its Subsidiaries authorize or permit any of its or and their respective officers, directors, employees, investment bankers, attorneys, accountants or accountants, consultants and other authorized agents, advisors or representatives or advisors (the collectively, “Siebel Representatives”) not to, directly or indirectly, (iA) solicit, initiate, initiate or take any action to knowingly facilitate or knowingly encourage the submission of any Acquisition Proposal, (iiB) enter into or participate in any discussions or negotiations with, furnish any non-public information relating to Siebel the Company or any of its Subsidiaries to or afford access to the business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries to to, any Third Party that has made, or has informed Siebel that it is seeking to make, an Acquisition Proposal, (iii) grant any Third Party waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel or any of its Subsidiaries or amend or terminate the Siebel Rights Plan or redeem the Siebel Rights or (iv) enter into any agreement (except for confidentiality agreements, referred to in Section 6.04(b)) with any Third Party with respect to an Acquisition Proposal made by such Third Party, or any other agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Mergers or any of the other transactions contemplated by this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, Siebel (through one or more of the Siebel Representatives) or its Board of Directors may, prior to the Siebel Stockholder Approval, (i) engage in negotiations or discussions with any Third Party (or with the representatives of any Third Party) that has made an Acquisition Proposal not solicited in violation of Section 6.03(a) if such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal (such Third Party, a “Qualified Third Party”), (ii) furnish to such Qualified Third Party or its representatives non-public information relating to Siebel or any of its Subsidiaries pursuant to an executed confidentiality agreement containing customary nondisclosure provisions (which need not include “standstill ” or similar provisions) (and a copy of which shall be promptly (in all events within 24 hours) provided for informational purposes only to Oracle), (iii) grant a waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel or any of its Subsidiaries, (iv) amend or terminate the Siebel Rights Plan or redeem the Siebel Rights, (v) withdraw the Siebel Board Recommendation or modify the Siebel Board Recommendation in a manner adverse to Oracle (any such action, a “Change in Recommendation”), (vi) terminate this Agreement pursuant to and subject to the terms of Section 9.01(d) and/or (vii) take any action that any court of competent jurisdiction orders Siebel, one or more of the Siebel Representatives or the Board of Directors of Siebel to take, but in each case referred to in the foregoing clauses (iii), (iv) and (v) only if the Board of Directors of Siebel determines in good faith by a majority vote, after consultation with its outside legal counsel, that failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Law. Nothing contained herein shall prevent the Board of Directors of Siebel from complying with Rule 14e-2(a), Rule 14d-9 and Item 1012(a) of Regulation M-A under the 1934 Act with regard to an Acquisition Proposal; provided that the Board of Directors of Siebel shall not recommend that Siebel’s stockholders tender shares of capital stock in connection with any tender or exchange offer unless such Board of Directors shall have determined in good faith by a majority vote, after consultation with its outside legal counsel, that failure to make such recommendation would be reasonably likely to result in a breach of its fiduciary duties under applicable Law.
(c) The Board of Directors of Siebel shall not take any of the actions referred to in clauses (i) through (vii) of the preceding subsection unless Siebel shall have delivered to Oracle a prior written notice advising Oracle that it intends to take such action. In addition, Siebel shall notify Oracle promptly (but in no event later than 24 hours) after an officer or director first obtains Knowledge of the receipt by Siebel (or any of the Siebel Representatives) of any Acquisition Proposal, any inquiry that would reasonably be expected to lead to an Acquisition Proposal, or any request for confidential information relating to Siebel or any of its Subsidiaries or for access to the business, properties, assets, books or records of Siebel or any of its Subsidiaries by any Third Party that has informed Siebel that it is considering making, or has made, an Acquisition Proposal. Siebel shall provide such notice orally and , (C) (1) withdraw, modify or amend, or announce that it proposes to withdraw, modify or amend, in writing and shall identify a manner adverse to the Third Party makingtransactions contemplated by this Agreement, and the material terms and conditions ofCompany Board Recommendation or (2) approve or recommend, or announce that it proposes to approve or recommend, any such Acquisition Proposal (any of the foregoing in this clause (C), a “Company Adverse Recommendation Change”), (D) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, or other similar instrument (whether or not binding) constituting or relating to an Acquisition Proposal, inquiry or request. Siebel shall promptly provide Oracle with (E) grant any non-public information concerning Siebel’s businesswaiver or release under any standstill, present confidentiality or future performance, financial condition similar agreement entered into by the Company or results any of operations, provided to its Subsidiaries or any Qualified Third Party after the date of this Agreement their Affiliates or Representatives in connection with an Acquisition Proposal made by such Third Party that was not previously provided to Oracle. Siebel shall keep Oracle promptly and reasonably informed, on a reasonably current basis, of the status and material details of any such actual or potential Acquisition Proposal, inquiry or request. Siebel ; and
(ii) the Company shall, and shall cause its Subsidiaries and the Siebel its and their respective Representatives to, cease immediately and cause to be terminated terminate immediately any and all existing activities, discussions or negotiations, if any, with any Third Party with respect to any Acquisition Proposal.
(b) Notwithstanding the foregoing, prior to obtaining the approval of the Shareholders of the Company contemplated by Section 7.01(d), if the Company or its Representatives receive a bona fide unsolicited written Acquisition Proposal (that was not made as a consequence of any violation of Section 5.02 or of any standstill, confidentiality or similar agreement entered into by the Company or any of its Subsidiaries or any of their Affiliates or Representatives), the Company or its Representatives may participate in discussions with, request clarifications from, or furnish information to, any Person that makes such bona fide unsolicited written Acquisition Proposal if (A) such action is taken subject to a confidentiality agreement with the Company containing provisions that are no less restrictive than the comparable provisions of the Confidentiality Agreement (and does not omit restrictive provisions contained in the Confidentiality Agreement), (B) the Company Board reasonably determines in good faith, after consultation with a nationally recognized financial advisor and outside nationally recognized legal counsel (which may be the Company’s current outside legal counsel), that the transaction that is the subject of the Acquisition Proposal is, or could reasonably be expected to lead to, a Superior Proposal and (C) the Company Board reasonably determines in good faith, after consultation with outside nationally recognized legal counsel (which may be the Company’s current outside legal counsel), that there is a reasonable likelihood that failure to take such actions would be inconsistent with its fiduciary duties under Applicable Law.
(c) The Company shall instruct enforce, to the fullest extent permitted under Applicable Law, the provisions of any standstill, confidentiality or similar agreement entered into by the Company or any of its Subsidiaries or their respective Representatives in connection with any actual or potential Acquisition Proposal, including where 29 Table of Contents necessary, seeking to obtain injunctions to prevent any breaches of such agreements and to enforce specifically the terms and provisions thereof in any court having jurisdiction.
(d) Nothing contained herein shall prevent the Company Board from complying with requirements of Rule 14e-2(a) under the 1934 Act or complying with the requirements of Rule 14d-9 under the 1934 Act with regard to an Acquisition Proposal, so long as any action taken or statement made to so comply is consistent with Section 5.02(a). For the avoidance of doubt, a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) under the 1934 Act, an express rejection of any applicable Acquisition Proposal or an express reaffirmation of its recommendation to the shareholders of the Company in favor of the Merger shall not be deemed to be a Company Adverse Recommendation Change.
(e) The Company Board shall not (i) effect a Company Adverse Recommendation Change, (ii) cause the Company to accept any Acquisition Proposal and/or enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, or other similar instrument (whether or not binding) constituting or relating to an Acquisition Proposal or (iii) resolve to do any of the foregoing; provided, however, that the Company Board shall be entitled to effect a Company Adverse Recommendation Change prior to the time the shareholders of the Company adopt this Agreement as contemplated by Section 7.01(d) if (x) the Company has complied with its obligations under this Section 5.02, (y) the Company Board determines in good faith, after consultation with (1) a nationally recognized financial advisor and outside nationally recognized legal counsel (which may be the Company’s current outside legal counsel), that the transaction that is the subject of the Acquisition Proposal, if any, is, or could reasonably be expected to lead to, a Superior Proposal and (2) outside nationally recognized legal counsel (which may be the Company’s current outside legal counsel), that there is a reasonable likelihood that failure to take such action would be inconsistent with its fiduciary duties under Applicable Law and (z) at least five Business Days prior to taking such action, the Company Board shall have advised Parent in writing that the Company Board intends to consider withdrawing, modifying or amending its Company Board Recommendation together with the specific reasons therefore, given Parent an opportunity to appear before it at a meeting (which may be telephonic or by video conference and of which Parent will have been given at least three Business Days’ prior notice) and present reasons why the Company Board should not withdraw, modify or amend its Company Board Recommendation and negotiate in good faith with Parent with the intent of enabling the parties to agree to a modification of the terms and conditions of this Agreement so that the Transactions will be on the terms such that the Company Board shall not be obligated to, and shall not, withdraw, modify or amend its Company Board Recommendation. Any such withdrawal, modification or amendment shall not include changing the approval of the Company Board for purposes of causing any Anti-takeover Statute or other similar Applicable Law to be applicable to the Merger. Unless and until this Agreement is terminated pursuant to Section 9.01(e) or Section 9.01(g) or otherwise, nothing contained in this Section 5.02(e) shall affect the Company’s obligation to hold and convene the Company Shareholder Meeting and to submit this Agreement for adoption by the shareholders of the Company (regardless of whether the Company Board Recommendation shall have been withdrawn, modified or amended).
(f) The Company shall notify Parent promptly (but in no event later than twenty-four hours) after receipt by the Company (or any of its Representatives) of any Acquisition Proposal, any inquiry that could be reasonably expected to lead to an Acquisition Proposal or of any request for information relating to the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of the Company or any of its Subsidiaries by any Third Party that to the Knowledge of the Company may be considering making, or has made, an Acquisition Proposal, which notice shall be provided in writing and shall identify the person making, and the terms and conditions of, any such Acquisition Proposal, inquiry or request (including any material changes thereto and copies of any written materials received from such Third Party (or its agents Representatives in connection therewith). The Company shall keep Parent fully informed of any material change to any Acquisition Proposal, inquiry or advisors) request for information. The Company shall promptly provide to Parent any non-public information concerning the Company provided to any other Person in possession of confidential information about Siebel that was furnished by connection with any Acquisition Proposal or on behalf of Siebel any inquiry with respect to any Acquisition Proposal within or any inquiry which was not previously provided or made available to Parent.
(g) The Company shall promptly request in writing that each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring the six Company or any portion thereof in the twelve months prior to the date hereof hereof, return to return the Company all materials containing confidential information heretofore furnished to such Person by or on behalf of the Company or destroy all such information.materials. 30 Table of Contents
Appears in 1 contract
Samples: Merger Agreement (Metropolitan Health Networks Inc)
No Solicitation; Other Offers. (a) Neither Siebel the Company nor any of its Subsidiaries shall, nor shall Siebel the Company or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants accountants, consultants or other agents, representatives agents or advisors (the “Siebel Representatives”) to, directly or indirectly, :
(i) solicit, initiateinitiate or knowingly take any action to knowingly induce, knowingly facilitate or knowingly encourage the submission or announcement of an Acquisition Proposal or any inquiry, indication of interest, proposal or offer that would reasonably be expected to lead to an Acquisition Proposal, Proposal (including by way of furnishing or providing access to non-public information to a Third Party);
(ii) enter into or participate in any discussions or negotiations withwith any Third Party with respect to an Acquisition Proposal or any inquiry, indication of interest, proposal or offer that would reasonably be expected to lead to an Acquisition Proposal;
(iii) furnish any non-public information relating to Siebel the Company or any of its Subsidiaries to or afford access to the business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries to or otherwise knowingly cooperate in any Third Party that has made, or has informed Siebel that it is seeking to make, an Acquisition Proposal, (iii) grant any Third Party waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel or any of its Subsidiaries or amend or terminate the Siebel Rights Plan or redeem the Siebel Rights or (iv) enter into any agreement (except for confidentiality agreements, referred to in Section 6.04(b)) way with any Third Party with respect to an Acquisition Proposal made by such Third Party, or any other agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Mergers or any of the other transactions contemplated by this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, Siebel (through one or more of the Siebel Representatives) or its Board of Directors may, prior to the Siebel Stockholder Approval, (i) engage in negotiations or discussions with any Third Party (or with the representatives of any Third Party) that has made an Acquisition Proposal not solicited in violation of Section 6.03(a) if such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal (such Third Party, a “Qualified Third Party”), (ii) furnish to such Qualified Third Party or its representatives non-public information relating to Siebel or any inquiry, indication of its Subsidiaries pursuant to an executed confidentiality agreement containing customary nondisclosure provisions (which need not include “standstill ” interest, proposal or similar provisions) (and a copy of which shall be promptly (in all events within 24 hours) provided for informational purposes only to Oracle), (iii) grant a waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel or any of its Subsidiaries, (iv) amend or terminate the Siebel Rights Plan or redeem the Siebel Rights, (v) withdraw the Siebel Board Recommendation or modify the Siebel Board Recommendation in a manner adverse to Oracle (any such action, a “Change in Recommendation”), (vi) terminate this Agreement pursuant to and subject to the terms of Section 9.01(d) and/or (vii) take any action that any court of competent jurisdiction orders Siebel, one or more of the Siebel Representatives or the Board of Directors of Siebel to take, but in each case referred to in the foregoing clauses (iii), (iv) and (v) only if the Board of Directors of Siebel determines in good faith by a majority vote, after consultation with its outside legal counsel, that failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Law. Nothing contained herein shall prevent the Board of Directors of Siebel from complying with Rule 14e-2(a), Rule 14d-9 and Item 1012(a) of Regulation M-A under the 1934 Act with regard to an Acquisition Proposal; provided that the Board of Directors of Siebel shall not recommend that Siebel’s stockholders tender shares of capital stock in connection with any tender or exchange offer unless such Board of Directors shall have determined in good faith by a majority vote, after consultation with its outside legal counsel, that failure to make such recommendation would be reasonably likely to result in a breach of its fiduciary duties under applicable Law.
(c) The Board of Directors of Siebel shall not take any of the actions referred to in clauses (i) through (vii) of the preceding subsection unless Siebel shall have delivered to Oracle a prior written notice advising Oracle that it intends to take such action. In addition, Siebel shall notify Oracle promptly (but in no event later than 24 hours) after an officer or director first obtains Knowledge of the receipt by Siebel (or any of the Siebel Representatives) of any Acquisition Proposal, any inquiry that would reasonably be expected to lead to an Acquisition Proposal; or
(iv) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar instrument relating to, or that is intended to or would be reasonably likely to lead to, an Acquisition Proposal, or requiring the Company to abandon, terminate, materially delay or fail to consummate, or that would otherwise materially impede, interfere with or be inconsistent with, the transactions contemplated by this Agreement (an “Alternative Acquisition Agreement”).
(b) Notwithstanding Section 5.03(a), at any time prior to the Closing Date, the Company, directly or indirectly through its Representatives, may engage in negotiations or discussions with, or furnish non-public information to, any Third Party and its Representatives that has made a bona fide written Acquisition Proposal that is submitted after the date of this Agreement but prior to the Closing Date to the Boards by such Third Party (and not withdrawn) if:
(i) the submission of such Acquisition Proposal shall not have resulted from the breach by the Company or any Representative of any of the Company or any of its Subsidiaries of the provisions set forth in Section 5.03(a);
(ii) the Boards reasonably conclude in good faith, after consultation with their outside legal counsel and financial advisor of nationally recognized reputation, that such bona fide written Acquisition Proposal constitutes or would reasonably be expected to lead to a Superior Proposal;
(iii) at least 24 hours prior to furnishing any such information to, or entering into discussions with, such Third Party (or its Representatives), Parent receives written notice from the Company of the identity of such Third Party and of the Company’s intention to furnish information to, or enter into discussions with, such Third Party, and the Company receives from such Person an executed confidentiality agreement in a customary form that is no less favorable to the Company (including standstill provisions) than the Confidentiality Agreement and does not contain any provision calling for an exclusive right to negotiate with the Company (an “Acceptable Confidentiality Agreement”) (which the Company may negotiate with the Third Party during the 24 hour notice period and enter into during such period or thereafter);
(iv) the Company provides or makes available all such information to Parent (to the extent that such information has not been previously provided or made available to Parent) prior to or substantially concurrently with the time it is provided or made available to such Third Party); and
(v) the Boards determine in good faith, after consultation with outside legal counsel, that the failure to take such action could be inconsistent with their fiduciary duties under Applicable Law. In addition, nothing contained herein shall prevent the Company or the Boards from (i) taking and disclosing to the Company’s shareholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the 1934 Act (or any similar communication to shareholders in connection with the making or amendment of a tender offer or exchange offer) or from making any legally required disclosure to shareholders with regard to the transactions contemplated by this Agreement or an Acquisition Proposal, (ii) issuing a “stop, look and listen” disclosure or similar communication of the type contemplated by Rule 14d-9(f) under the 1934 Act or (iii) contacting and engaging in discussions with any person or group and their respective Representatives who has made an Acquisition Proposal that was not solicited in breach of Section 5.03(a) solely for the purpose of clarifying such Acquisition Proposal and the terms thereof (provided that, in the cases of both clauses (i) and (ii) above, any such disclosure or communication does not contain an Adverse Recommendation Change unless permitted by Section 5.03(e) or Section 5.03(f)).
(c) In addition to the other obligations of the Company set forth in Section 5.03, the Company shall notify Parent promptly (but in no event later than two Business Days) orally and in writing after receipt by the Company (or any of its Representatives) of any Acquisition Proposal or any request for confidential non-public information relating to Siebel the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries by any Third Party that has informed Siebel notified the Company that it is may be considering making, or has made, an Acquisition Proposal. Siebel shall provide Each such notice orally shall include (i) the identity of the Third Party making or submitting such Acquisition Proposal or request, and (ii) a copy of all written materials provided by such Third Party in connection with, and the material terms of, such Acquisition Proposal. After receipt of the Acquisition Proposal or request, the Company shall continue promptly (and in any event within 24 hours of any material change or development with respect to such Acquisition Proposal) to keep Parent reasonably informed orally or in writing of the status, terms and pertinent details of any such Acquisition Proposal or request (including by providing prompt notice of all material amendments or proposed material amendments thereto).
(d) Except as expressly permitted under Section 5.03(e) or Section 5.03(f), none of the Company, the Boards or any committee thereof shall (i)(A) withhold, fail to include in (or remove from) the Schedule 14D-9 or the EGM Materials, withdraw, qualify or modify (or resolve, determine or publicly propose to withhold, fail to include in (or remove from) the Schedule 14D-9 or the EGM Materials, withdraw, qualify or modify) the Company Recommendation or (B) adopt, approve, recommend, submit to shareholders or declare advisable (or resolve, determine or publicly propose to adopt, approve, recommend, submit to shareholders or declare advisable) any Acquisition Proposal (any action described in this clause (i) being referred to as an “Adverse Recommendation Change”) or (ii) adopt, approve, recommend, submit to shareholders or declare advisable (or resolve, determine or publicly propose to adopt, approve, recommend, submit to shareholders or declare advisable), or allow the Company or any of its Subsidiaries to execute or enter into, any Alternative Acquisition Agreement.
(e) Notwithstanding anything in this Agreement to the contrary, if the Company receives an Acquisition Proposal, other than as a result of breaching or violating Section 5.03(a), that the Boards conclude in good faith, after consultation with their outside legal counsel and financial advisor of nationally recognized reputation, constitutes a Superior Proposal, the Boards may, at any time prior to the Closing Date, if they determine in good faith, after consultation with their outside legal counsel, that the failure to take such actions contemplated by clauses (x) and/or (y) below would likely be inconsistent with the Boards’ fiduciary duties under Applicable Law, (x) effect an Adverse Recommendation Change with respect to such Superior Proposal and/or (y) terminate this Agreement pursuant to Section 8.01(d)(i) and simultaneously enter into an Alternative Acquisition Agreement with respect to such Superior Proposal; provided, however, that the Company shall not terminate this Agreement pursuant to the foregoing clause (y) or Section 8.01(d)(i), and any purported termination pursuant to the foregoing clause (y) or Section 8.01(d)(i) shall be void and of no force or effect, unless in advance of or concurrently with such termination the Company pays the Termination Fee and otherwise complies with the provisions of Section 8.01(d)(i) and Section 9.04(a)(i); and provided, further, that the Boards may not effect an Adverse Recommendation Change pursuant to the foregoing clause (x) or terminate this Agreement pursuant to the foregoing clause (y) or Section 8.01(d)(i) unless: (i) the Company shall have provided prior written notice to Parent, at least five Business Days in advance (the “Superior Proposal Notice Period”), of its intention to effect such an Adverse Recommendation Change (which notice itself shall not constitute an Adverse Recommendation Change) and/or terminate this Agreement to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal, which notice shall identify the Third Party makingor group making such Superior Proposal, and contain the execution draft of the relevant proposed Alternative Acquisition Agreement (which shall include the financial terms of such Superior Proposal) with the Third Party or group making such Superior Proposal and any other material documents with respect to such Superior Proposal (including any with respect to the financing thereof); and (ii) prior to effecting such Adverse Recommendation Change and/or terminating this Agreement to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal, (A) if requested by Parent, the Company shall have, and shall have caused the Company’s Representatives to, during the Superior Proposal Notice Period, negotiate with Parent in good faith to make such adjustments in the terms and conditions of this Agreement so that such Acquisition Proposal ceases to constitute a Superior Proposal, and (B) Parent shall not have, during the Superior Proposal Notice Period, made a written offer that would, after consideration of such offer by the Boards in good faith and after consultation with their outside legal counsel and financial advisor of nationally recognized reputation, result in the Boards determining that such Superior Proposal no longer constitutes a Superior Proposal. In the event of any amendment to the financial terms or any other material revisions to the Superior Proposal after the start of the Superior Proposal Notice Period, the Company shall be required to deliver a new written notice to Parent pursuant to Section 5.03(e)(i) and to comply with the requirements of this Section 5.03(e) with respect to such new written notice (including a new Superior Proposal Notice Period), except the Superior Proposal Notice Period shall be at least three Business Days (rather than the five Business Days contemplated by Section 5.03(e)(i) above).
(f) Notwithstanding anything to the contrary contained in this Agreement, and solely in response to an Intervening Event, the Boards may effect an Adverse Recommendation Change prior to the Closing Date if each of the Boards determines in good faith, after consultation with their outside legal counsel and financial advisor of nationally recognized reputation, that the failure to do so would likely be inconsistent with the directors’ fiduciary duties under Applicable Law; provided, however, that the Boards may not effect such an Adverse Recommendation Change unless: (i) the Company shall have provided prior written notice to Parent, at least five Business Days in advance (the “Intervening Event Notice Period”), of its intention to effect such an Adverse Recommendation Change (which notice itself shall not constitute an Adverse Recommendation Change), which notice shall specify in reasonable detail such Intervening Event; and (ii) prior to effecting such Adverse Recommendation Change, (A) if requested by Parent, the Company shall have, and shall have caused the Company’s Representatives to, during the Intervening Event Notice Period, negotiate with Parent in good faith to make such adjustments in the terms and conditions of this Agreement so that an Adverse Recommendation Change is no longer necessary, and (B) Parent shall not have, during the Intervening Event Notice Period, made a written offer that that, after due consideration of such offer by the Boards in good faith and after consultation with their outside legal counsel and financial advisor of nationally recognized reputation, results in both Boards determining that it would not continue to be likely to be inconsistent with the director’s fiduciary duties under Applicable Law to not effect the Adverse Recommendation Change. In the event of any material changes to the circumstances applicable to the Intervening Event, after the start of the Intervening Event Notice Period, the Company shall be required to deliver a new written notice to Parent pursuant to Section 5.03(f)(i) and to comply with the requirements of this Section 5.03(f) with respect to such new written notice (including a new Intervening Event Notice Period) except the Intervening Event Notice Period shall be at least three Business Days (rather than the five Business Days contemplated by Section 5.03(f)(i) above).
(g) The Company shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than in the event of any amendment to this Agreement and to the extent required by Applicable Law to be disclosed in any Company SEC Documents or otherwise in accordance with the Confidentiality Agreement.
(h) No Adverse Recommendation Change shall change the approval of the Boards for purposes of causing any Anti-Takeover Measure to be applicable to the transactions contemplated by this Agreement or the Tender Agreements.
(i) For purposes of this Agreement, “Superior Proposal” means a bona fide, unsolicited written Acquisition Proposal (that has not been withdrawn and that did not result from a breach of the provisions of Section 5.03(a)) to acquire all of the outstanding Shares or all or substantially all of the consolidated assets of the Company and its Subsidiaries, which (a) is not subject to a financing condition (and if financing is required, such financing is committed, or is reasonably expected to be committed, to the Third Party or “group” (as defined in or under Section 13(d) of the 0000 Xxx) making such Acquisition Proposal), (b) is reasonably likely to be consummated on the terms and conditions contemplated thereby, and (c) the Boards determine in good faith by a majority vote, after considering the advice of a financial advisor of nationally recognized reputation, is on terms more favorable to the Company’s shareholders and other stakeholders than as provided hereunder, in each case taking into account the various legal, financial and regulatory aspects of the proposal, including the financial and financing terms thereof, the likelihood of consummation in a timely manner, and the material terms and conditions of, any such Acquisition Proposal, inquiry or request. Siebel shall promptly provide Oracle with any non-public information concerning Siebel’s business, present or future performance, financial condition or results identity of operations, provided to any Qualified the Third Party after the date of this Agreement in connection with an Acquisition Proposal made by or group making such Third Party that was not previously provided to Oracle. Siebel shall keep Oracle promptly and reasonably informed, on a reasonably current basis, of the status and material details of any such Acquisition Proposal, inquiry or request. Siebel shall, and shall cause its Subsidiaries and the Siebel Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party with respect to any Acquisition Proposal and shall instruct any such Third Party (or its agents or advisors) in possession of confidential information about Siebel that was furnished by or on behalf of Siebel with respect to any Acquisition Proposal within the six months prior to the date hereof to return or destroy all such informationproposal.
Appears in 1 contract
No Solicitation; Other Offers. (a) Neither Siebel the Company nor any of its Subsidiaries shall, nor shall Siebel the Company or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants accountants, consultants or other agents, representatives agents or advisors (the “Siebel Representatives”) to, directly or indirectly, (i) solicit, initiate, knowingly initiate or take any action to facilitate or knowingly encourage the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any non-public information relating to Siebel the Company or any of its Subsidiaries to or afford access to the business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries to to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that has made, or has informed Siebel that it is seeking to make, or has made, an Acquisition Proposal, (iii) grant any Third Party waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel the Company or any of its Subsidiaries or amend or terminate the Siebel Rights Plan or redeem the Siebel Rights or (iv) enter into any agreement (except for confidentiality agreements, referred to in Section 6.04(b)) with any Third Party with respect to an Acquisition Proposal made by such Third Party, or any other agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Mergers or any of the other transactions contemplated by this AgreementProposal.
(b) Notwithstanding anything to the contrary contained in this Agreementforegoing, Siebel (through one or more of the Siebel Representatives) or its Board of Directors mayof the Company, prior to the Siebel Stockholder Approvaldirectly or indirectly through advisors, agents or other intermediaries, may (i) engage in negotiations or discussions with any Third Party (or that, subject to the Company's compliance with the representatives of any Third Party) that Section 7.03(a), has made an a bona fide Acquisition Proposal not solicited in violation that the Board of Section 6.03(a) if such Acquisition Proposal constitutes or could Directors of the Company reasonably be expected to believes will lead to a Superior Proposal (such Third Party, a “Qualified Third Party”)Proposal, (ii) furnish to such Qualified Third Party or its representatives non-public nonpublic information relating to Siebel the Company or any of its Subsidiaries pursuant to an executed a confidentiality agreement containing customary nondisclosure provisions (which need not include “standstill ” or similar provisions) (and a copy of which shall be promptly (in all events within 24 hours) provided for informational purposes only to Oracle), Parent) with terms no less favorable to the Company than those contained in the Confidentiality Agreement and/or (iii) grant a waiver or release under any standstill or similar agreement with respect following receipt of such Acquisition Proposal, fail to any class of equity securities of Siebel or any of its Subsidiariesmake, (iv) amend or terminate the Siebel Rights Plan or redeem the Siebel Rightswithdraw, (v) withdraw the Siebel Board Recommendation or modify the Siebel Board Recommendation in a manner adverse to Oracle (any such action, a “Change Parent its recommendation to its shareholders referred to in Recommendation”), (vi) terminate this Agreement pursuant to and subject to the terms of Section 9.01(d) and/or (vii) take any action that any court of competent jurisdiction orders Siebel, one or more of the Siebel Representatives or the Board of Directors of Siebel to take, 7.02 hereof; but in each case referred to in the foregoing clauses (i) through (iii), (iv) and (v) only if the Board of Directors of Siebel the Company determines in good faith by a majority vote, after consultation with its outside legal counselcounsel to the Company, that failure to take taking such action would be reasonably likely is in the best interests of the Company and its shareholders and that such action is necessary to result in a breach of comply with its fiduciary duties under applicable Virginia Law. Nothing contained herein shall prevent the Board of Directors of Siebel the Company from complying with Rule 14e-2(a), Rule 14d-9 and Item 1012(a) of Regulation M-A under the 1934 Act with regard to an Acquisition Proposal; provided that the Board of Directors of Siebel shall not recommend that Siebel’s stockholders tender shares of capital stock in connection with any tender or exchange offer unless such Board of Directors shall have determined in good faith by a majority vote, after consultation with its outside legal counsel, that failure to make such recommendation would be reasonably likely to result in a breach of its fiduciary duties under applicable Law.
(c) The Board of Directors of Siebel the Company shall not take any of the actions referred to in clauses (i) through (viiiii) of the preceding subsection unless Siebel the Company shall have delivered to Oracle Parent a prior written notice advising Oracle Parent that it intends to take such action, and the Company shall continue to advise Parent after taking such action. In addition, Siebel the Company shall notify Oracle Parent promptly (but in no event later than 24 hours) after an officer or director first obtains Knowledge of the receipt by Siebel the Company (or any of the Siebel Representativesits advisors) of any Acquisition Proposal, any inquiry indication that would reasonably be expected to lead to a Third Party is considering making an Acquisition Proposal, Proposal or of any request for confidential information relating to Siebel the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries by any Third Party that has informed Siebel that it is may be considering making, or has made, an Acquisition Proposal. Siebel The Company shall provide such notice orally and in writing and shall identify the Third Party making, and the material terms and conditions of, any such Acquisition Proposal, inquiry indication or request. Siebel shall promptly provide Oracle with any non-public information concerning Siebel’s business, present or future performance, financial condition or results of operations, provided to any Qualified Third Party after the date of this Agreement in connection with an Acquisition Proposal made by such Third Party that was not previously provided to Oracle. Siebel The Company shall keep Oracle promptly and reasonably Parent fully informed, on a reasonably current basis, of the status and material details of any such Acquisition Proposal, inquiry indication or request. Siebel The Company shall, and shall cause its Subsidiaries and the Siebel Representatives advisors, employees and other agents of the Company and any of its Subsidiaries to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to the date hereof with respect to any Acquisition Proposal and shall instruct use its reasonable best efforts to cause any such Third Party (or its agents or advisors) in possession of confidential information about Siebel the Company that was furnished by or on behalf of Siebel with respect to any Acquisition Proposal within the six months prior to the date hereof Company to return or destroy all such information.
Appears in 1 contract
No Solicitation; Other Offers. (a) Neither Siebel the Company nor any of its Subsidiaries shall, nor shall Siebel the Company or any of its Subsidiaries authorize or permit any of its or their officersRepresentatives to, directorsand the Company shall instruct, employeesand cause each applicable Subsidiary, investment bankersif any, attorneysto instruct, accountants or other agents, representatives or advisors (the “Siebel Representatives”) each such Representative not to, directly or indirectly, (i) solicit, initiate, initiate or knowingly take any action to facilitate or knowingly encourage the submission of any Acquisition Proposal or any inquiries or the making of any proposal that could reasonably be expected to lead to any Acquisition Proposal, (ii) enter into conduct or participate engage in any discussions or negotiations with, furnish disclose any non-public information relating to Siebel the Company or any of its Subsidiaries to or to, afford access to the non-public business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries to to, or otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by, any Third Party that has made, or has informed Siebel that it is seeking to make, or has made, an Acquisition Proposal, (iii) (A) amend or grant any Third Party waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel the Company or any of its Subsidiaries Subsidiaries, (B) approve any transaction under, or any Third Party becoming an “interested stockholder” under, Section 203 of Delaware Law, or (C) amend or terminate the Siebel Rights Plan grant any waiver or release or approve any transaction or redeem any Company Rights under the Siebel Company Rights Agreement except in connection with the transactions contemplated by this Agreement, or (iv) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement or other Contract relating to an Acquisition Proposal. Except as required by the fiduciary duties of the Board of Directors of the Company, neither the Board of Directors of the Company nor any committee thereof shall fail to make, withdraw or modify in a manner adverse to Parent the Board Recommendation (except for confidentiality agreementsor recommend an Acquisition Proposal or take any action or make any statement inconsistent with the Board Recommendation) or resolve or agree to take any such action (any of the foregoing, referred an “Adverse Recommendation Change”). The Company shall, and shall cause its Subsidiaries and its Representatives to, cease immediately and cause to in Section 6.04(b)) be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to the date hereof with respect to an any Acquisition Proposal made by and shall use its reasonable best efforts to cause any such Third Party, Party (or any other agreement, arrangement its agents or understanding requiring it to abandon, terminate advisors) in possession of confidential information about the Company and its Subsidiaries that was furnished by or fail to consummate the Mergers or any on behalf of the other transactions contemplated by this AgreementCompany to return or destroy all such information.
(b) Notwithstanding anything in this Agreement to the contrary contained in this Agreementcontrary, Siebel (through one or more of the Siebel Representatives) or its Board of Directors of the Company, directly or indirectly through a Representative, may, prior to the Siebel Stockholder Approval, (i) engage in negotiations or discussions with any Third Party (or that, subject to the Company’s compliance with the representatives of any Third PartySections 6.04(a) that and 6.04(c), has made an a bona fide, unsolicited written Acquisition Proposal not solicited in violation that the Board of Section 6.03(a) if such Acquisition Proposal constitutes or could Directors of the Company reasonably be expected believes, after considering the advice of its outside legal counsel and of a financial advisor of nationally recognized reputation, is reasonably likely to lead to a Superior Proposal (such Third Party, a “Qualified Third Party”)Proposal, (ii) thereafter furnish to such Qualified Third Party or its representatives non-public information relating to Siebel the Company or any of its Subsidiaries pursuant to an executed confidentiality agreement containing customary nondisclosure provisions with terms no less favorable to the Company than those contained in the Confidential Disclosure Agreement dated as of July 27, 2006 between the Company and Parent (which need not include the “standstill ” or similar provisionsConfidentiality Agreement”) (and containing additional provisions that expressly permit the Company to comply with the terms of this 6.04 (b)) (a copy of which shall be promptly (in all events within 24 48 hours) provided for informational purposes only to OracleParent), (iii) grant a waiver or release under any standstill or similar agreement with respect to any class following receipt of equity securities and on account of Siebel or any of its Subsidiariessuch Superior Proposal, make an Adverse Recommendation Change and/or (iv) amend or terminate the Siebel Rights Plan or redeem the Siebel Rights, (v) withdraw the Siebel Board Recommendation or modify the Siebel Board Recommendation in a manner adverse to Oracle (any such action, a “Change in Recommendation”), (vi) terminate this Agreement pursuant to and subject to the terms of Section 9.01(d) 10.01(d)(ii), and/or (viiv) take any non-appealable, final action that any court of competent jurisdiction orders Siebel, one or more of the Siebel Representatives or the Board of Directors of Siebel Company to take, but in each case referred to in the foregoing clauses (iiii) through (iv), (iv) and (v) only if the Board of Directors of Siebel the Company determines in good faith by a majority vote, after consultation with its the receipt of the advice of outside legal counselcounsel to the Company, that failure to it must take such action would be reasonably likely to result in a breach of comply with its fiduciary duties under applicable Applicable Law. Nothing contained herein shall prevent the Board of Directors of Siebel the Company from complying with Rule 14e-2(a), Rule 14d-9 and Item 1012(aRule 14e-2(a) of Regulation M-A under the 1934 Act with regard to an Acquisition Proposal; provided that the Board of Directors of Siebel . Any action taken or statement made pursuant to this Section 6.04(b) shall not recommend that Siebel’s stockholders tender shares of capital stock in connection with any tender or exchange offer unless such Board of Directors shall have determined in good faith by a majority vote, after consultation with its outside legal counsel, that failure to make such recommendation would be reasonably likely to result in constitute a breach of its fiduciary duties under applicable Lawthe Company’s representations, warranties, covenants or agreements contained in this Agreement.
(c) The Board of Directors of Siebel the Company shall not take any of the actions referred to in clauses (i) through (viiiv) of the preceding subsection unless Siebel the Company shall have delivered to Oracle Parent a prior written notice advising Oracle Parent that it intends to take such action. In addition, Siebel The Company shall notify Oracle Parent promptly (but in no event later than 24 hours) after an officer or director first obtains Knowledge of the receipt by Siebel the Company or any of its Subsidiaries (or any of the Siebel its or their Representatives) of any Acquisition Proposal, any inquiry that would reasonably be expected to lead to an Acquisition Proposal, or any request for confidential non-public information relating to Siebel the Company or any of its Subsidiaries or for access to the non-public business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries by any Third Party or any other indication that has informed Siebel that it a Third Party is considering making, or has made, making an Acquisition Proposal. Siebel The Company shall provide such notice orally and in writing and shall identify the Third Party making, and the material terms and conditions of, any such Acquisition Proposal, inquiry indication or request. Siebel The Company shall keep Parent informed, as promptly as practicable, of the status and terms of any such Acquisition Proposal, indication or request, including the material resolved and unresolved issues related thereto and material amendments or proposed amendments as to price and other material terms thereof. The Company shall promptly provide Oracle Parent with (i) any non-public information concerning Siebelthe Company’s business, present or future performance, financial condition or results of operations, operations provided to any Qualified Third Party after the date of this Agreement in connection with an Acquisition Proposal made by such Third Party that was not previously provided to Oracle. Siebel shall keep Oracle promptly Parent and reasonably informed(ii) copies of all documents and written communications relating to such Acquisition Proposal exchanged between the Company, any of its Subsidiaries or any of its or their Representatives, on the one hand, and the Third Party making a reasonably current basis, of the status and material details of any such Acquisition ProposalProposal or any of its Representatives, inquiry or request. Siebel shall, and shall cause its Subsidiaries and on the Siebel Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party with respect to any Acquisition Proposal and shall instruct any such Third Party (or its agents or advisors) in possession of confidential information about Siebel that was furnished by or on behalf of Siebel with respect to any Acquisition Proposal within the six months prior to the date hereof to return or destroy all such informationother hand.
Appears in 1 contract
Samples: Merger Agreement (Metasolv Inc)
No Solicitation; Other Offers. (a) Neither Siebel the Company nor any of its Subsidiaries shall, nor shall Siebel the Company or any of its Subsidiaries authorize or permit any of its or their officersRepresentatives to, directorsand the Company shall instruct, employeesand cause each Subsidiary and Affiliate, investment bankersif any, attorneysto instruct, accountants or other agents, representatives or advisors (the “Siebel Representatives”) each such Representative not to, directly or indirectly, (i) solicit, initiate, knowingly facilitate solicit or knowingly encourage initiate the submission of any Acquisition Proposal or the making of any proposal that would reasonably be expected to lead to any Acquisition Proposal, or, subject to Section 7.03(b), (iii) enter into conduct or participate engage in any discussions or negotiations with, furnish any non-public information relating to Siebel or any of its Subsidiaries to or afford access to the business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries to to, or otherwise cooperate in any way with, any Third Party that has made, or has informed Siebel that it is seeking to make, an or has made, any Acquisition Proposal, (iiiii) (A) amend or grant any Third Party waiver or release under any confidentiality, standstill or similar agreement with respect to any class of equity securities of Siebel or any of its Subsidiaries or amend or terminate the Siebel Rights Plan or redeem the Siebel Rights or (iv) enter into any agreement (except for confidentiality agreements, referred to in Section 6.04(b)) with any Third Party with respect to an Acquisition Proposal made by such Third Party, or any other agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Mergers or any of the other transactions contemplated by this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, Siebel (through one or more of the Siebel Representatives) or its Board of Directors may, prior to the Siebel Stockholder Approval, (i) engage in negotiations or discussions with any Third Party (or with the representatives of any Third Party) that has made an Acquisition Proposal not solicited in violation of Section 6.03(a) if such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal (such Third Party, a “Qualified Third Party”), (ii) furnish to such Qualified Third Party or its representatives non-public information relating to Siebel or any of its Subsidiaries pursuant to an executed confidentiality agreement containing customary nondisclosure provisions (which need not include “standstill ” or similar provisions) (and a copy of which shall be promptly (in all events within 24 hours) provided for informational purposes only to Oracle), (iii) grant a waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel Company or any of its Subsidiaries, or (ivB) amend approve any transaction under, or terminate any Third Party becoming an “interested stockholder” under, Section 203 of Delaware Law, or (iii) enter into any binding agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Acquisition Proposal. Subject to Section 7.03(b), neither the Siebel Rights Plan Company Board nor any committee thereof shall fail to make or redeem the Siebel Rights, (v) withdraw the Siebel Board Recommendation Recommendation, approve or modify recommend an Acquisition Proposal, fail to recommend against acceptance of any tender offer or exchange offer for the Siebel Board Recommendation Company Shares or withdraw any approval by the Compensation Committee referred to in a manner adverse to Oracle (any such actionSection 7.07, a “Change in Recommendation”), (vi) terminate this Agreement pursuant to and subject to the terms of Section 9.01(d) and/or (vii) take any action that or make any court of competent jurisdiction orders Siebel, one or more of the Siebel Representatives or public statement inconsistent with the Board of Directors of Siebel Recommendation, or resolve or agree to take, but in each case referred to in the foregoing clauses (iii), (iv) and (v) only if the Board of Directors of Siebel determines in good faith by a majority vote, after consultation with its outside legal counsel, that failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Law. Nothing contained herein shall prevent the Board of Directors of Siebel from complying with Rule 14e-2(a), Rule 14d-9 and Item 1012(a) of Regulation M-A under the 1934 Act with regard to an Acquisition Proposal; provided that the Board of Directors of Siebel shall not recommend that Siebel’s stockholders tender shares of capital stock in connection with any tender or exchange offer unless such Board of Directors shall have determined in good faith by a majority vote, after consultation with its outside legal counsel, that failure to make such recommendation would be reasonably likely to result in a breach of its fiduciary duties under applicable Law.
(c) The Board of Directors of Siebel shall not take any of the foregoing actions referred to in clauses (i) through (vii) of the preceding subsection unless Siebel shall have delivered to Oracle a prior written notice advising Oracle that it intends to take such action. In addition, Siebel shall notify Oracle promptly (but in no event later than 24 hours) after an officer or director first obtains Knowledge of the receipt by Siebel (or any of the Siebel Representatives) of any Acquisition Proposal, any inquiry that would reasonably be expected to lead to an Acquisition Proposal, or any request for confidential information relating to Siebel or any of its Subsidiaries or for access to the business, properties, assets, books or records of Siebel or any of its Subsidiaries by any Third Party that has informed Siebel that it is considering making, or has madeforegoing, an Acquisition Proposal. Siebel shall provide such notice orally and in writing and shall identify the Third Party making, and the material terms and conditions of, any such Acquisition Proposal, inquiry or request. Siebel shall promptly provide Oracle with any non-public information concerning Siebel’s business, present or future performance, financial condition or results of operations, provided to any Qualified Third Party after the date of this Agreement in connection with an Acquisition Proposal made by such Third Party that was not previously provided to Oracle. Siebel shall keep Oracle promptly and reasonably informed, on a reasonably current basis, of the status and material details of any such Acquisition Proposal, inquiry or request. Siebel shall, and shall cause its Subsidiaries and the Siebel Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party with respect to any Acquisition Proposal and shall instruct any such Third Party (or its agents or advisors) in possession of confidential information about Siebel that was furnished by or on behalf of Siebel with respect to any Acquisition Proposal within the six months prior to the date hereof to return or destroy all such information.“Adverse
Appears in 1 contract
No Solicitation; Other Offers. (a) Neither Siebel From the date hereof until the earlier of the Effective Time and the termination of this Agreement pursuant to its terms, subject to Section 6.03(b), neither the Company nor any of its Subsidiaries shall, nor shall Siebel the Company or any of its Subsidiaries authorize or knowingly permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants or other agents, representatives or advisors (the “Siebel Representatives”) Representatives to, directly or indirectly, (i) solicit, initiate, knowingly facilitate initiate or knowingly encourage encourage, directly or A-33 indirectly, the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations withregarding, or furnish any non-public information relating to Siebel or any of its Subsidiaries to or afford access to the business, properties, assets, books or records of Siebel or any of its Subsidiaries to any Third Party that has madeany nonpublic information or data with respect to, or has informed Siebel that it is seeking take any other action to makeknowingly facilitate the making of, an any Acquisition Proposal, (iii) grant fail to make, or withdraw or modify in a manner adverse to Parent, the Board Recommendation (or recommend an Acquisition Proposal) (any Third Party waiver or release under any standstill or similar agreement with respect to any class of equity securities the foregoing in this clause (iii), an “Adverse Recommendation Change”) (it being understood, however, that for all purposes of Siebel this Agreement, the fact that the Company or any of its Subsidiaries or amend Representatives has taken any of the actions described in clause (ii) above as permitted by this Agreement shall not be deemed in and of itself a withdrawal or terminate modification of the Siebel Rights Plan Board Recommendation or redeem the Siebel Rights a recommendation of any Acquisition Proposal), or (iv) enter into any agreement (except for confidentiality agreements, referred to in Section 6.04(b)) with any Third Party with respect to an Acquisition Proposal made by such Third Party, or any other agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Mergers or any of the other transactions contemplated by this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, Siebel (through one or more of the Siebel Representatives) or its Board of Directors may, prior to the Siebel Stockholder Approval, (i) engage in negotiations or discussions with any Third Party (or with the representatives of any Third Party) that has made an Acquisition Proposal not solicited in violation of Section 6.03(a) if such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal (such Third Party, a “Qualified Third Party”), (ii) furnish to such Qualified Third Party or its representatives non-public information relating to Siebel or any of its Subsidiaries pursuant to an executed confidentiality agreement containing customary nondisclosure provisions (which need not include “standstill ” or similar provisions) (and a copy of which shall be promptly (in all events within 24 hours) provided for informational purposes only to Oracle), (iii) grant a waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel or any of its SubsidiariesAcquisition Transaction, (iv) amend or terminate the Siebel Rights Plan or redeem the Siebel Rights, (v) withdraw the Siebel Board Recommendation or modify the Siebel Board Recommendation in except for a manner adverse to Oracle (any such action, a “Change in Recommendation”confidentiality agreement as contemplated by Section 6.03(b)(ii), (vi) terminate this Agreement pursuant to and subject to the terms of Section 9.01(d) and/or (vii) take any action that any court of competent jurisdiction orders Siebel, one or more of the Siebel Representatives or the Board of Directors of Siebel to take, but in each case referred to in the foregoing clauses (iii), (iv) and (v) only if the Board of Directors of Siebel determines in good faith by a majority vote, after consultation with its outside legal counsel, that failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Law. Nothing contained herein shall prevent the Board of Directors of Siebel from complying with Rule 14e-2(a), Rule 14d-9 and Item 1012(a) of Regulation M-A under the 1934 Act with regard to an Acquisition Proposal; provided that the Board of Directors of Siebel shall not recommend that Siebel’s stockholders tender shares of capital stock in connection with any tender or exchange offer unless such Board of Directors shall have determined in good faith by a majority vote, after consultation with its outside legal counsel, that failure to make such recommendation would be reasonably likely to result in a breach of its fiduciary duties under applicable Law.
(c) The Board of Directors of Siebel shall not take any of the actions referred to in clauses (i) through (vii) of the preceding subsection unless Siebel shall have delivered to Oracle a prior written notice advising Oracle that it intends to take such action. In addition, Siebel shall notify Oracle promptly (but in no event later than 24 hours) after an officer or director first obtains Knowledge of the receipt by Siebel (or any of the Siebel Representatives) of any Acquisition Proposal, any inquiry that would reasonably be expected to lead to an Acquisition Proposal, or any request for confidential information relating to Siebel or any of its Subsidiaries or for access to the business, properties, assets, books or records of Siebel or any of its Subsidiaries by any Third Party that has informed Siebel that it is considering making, or has made, an Acquisition Proposal. Siebel shall provide such notice orally and in writing and shall identify the Third Party making, and the material terms and conditions of, any such Acquisition Proposal, inquiry or request. Siebel shall promptly provide Oracle with any non-public information concerning Siebel’s business, present or future performance, financial condition or results of operations, provided to any Qualified Third Party after the date of this Agreement in connection with an Acquisition Proposal made by such Third Party that was not previously provided to Oracle. Siebel shall keep Oracle promptly and reasonably informed, on a reasonably current basis, of the status and material details of any such Acquisition Proposal, inquiry or request. Siebel Company shall, and shall cause its Subsidiaries and the Siebel Representatives of the Company and any of its Subsidiaries to, cease immediately and cause to be terminated any and all existing activities, discussions or and negotiations, if any, with any Third Party conducted prior to the date hereof with respect to any Acquisition Proposal Proposal.
(b) Notwithstanding the foregoing, the Board of Directors of the Company, directly or indirectly through any Representatives of the Company, may (i) engage in negotiations or discussions with any Third Party that has made a bona fide Acquisition Proposal, which has not been solicited, initiated or knowingly encouraged by the Company, its Subsidiaries or any of their respective Representatives that the Board of Directors (or any Special Committee of the Board of Directors) has determined, in its good faith judgment after receiving the advice of the Company’s outside legal counsel and shall instruct any a financial advisor of internationally recognized reputation, is or would reasonably be likely to result in a Superior Proposal, (ii) thereafter furnish to such Third Party nonpublic information relating to the Company or any of its Subsidiaries pursuant to a confidentiality agreement with terms and conditions in all material respects no less favorable to the Company than those contained in the Confidentiality Agreement, (iii) following receipt of any such Acquisition Proposal that is so determined to be a Superior Proposal, make an Adverse Recommendation Change and/or (iv) take any non-appealable, final action that any court of competent jurisdiction orders the Company to take, but (x) in each case referred to in the foregoing clauses (i) through (iii), only if the Board of Directors of the Company (or its agents or advisorsa Special Committee) determines in good faith, after considering advice from the Company’s outside legal counsel, that the failure to take such action would reasonably be likely to constitute a breach of the directors’ fiduciary duties under Applicable Law, and (y) in possession the case referred to in clause (iii), only if the Company shall have complied with the requirements set forth in the second proviso to Section 10.01(d)(i). Nothing contained herein shall prevent the Board of confidential information about Siebel that was furnished Directors of the Company (or a Special Committee) from complying with Rule 14d-9 and Rule 14e-2(a) under the 1934 Act with regard to an Acquisition Proposal, so long as any action taken or statement made to so comply is consistent with this Section 6.03.
(c) The Company shall notify Parent promptly (and in any event no later than 24 hours) after receipt by the Company (or on behalf any of Siebel with respect to its Representatives) of any Acquisition Proposal within or any request by any Third Party for any nonpublic information in connection with, or which the six months prior to Company reasonably concludes could lead to, any Acquisition Proposal, indicating, in connection with such notice, the date hereof to return name of such Person and the material terms and conditions of such Acquisition Proposal or destroy request. The Company shall keep Parent informed in all material respects of the status and details (including material amendments or proposed amendments) of any such informationAcquisition Proposal or request.
Appears in 1 contract
Samples: Merger Agreement (Powerdsine LTD)
No Solicitation; Other Offers. (a) Neither Siebel the Bank nor any of its Subsidiaries shall, nor shall Siebel the Bank or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants accountants, consultants or other agents, representatives agents or advisors (the “Siebel Representatives”) to, directly or indirectly, (i) solicit, initiate, knowingly initiate or take any action to facilitate or knowingly encourage the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any non-public information relating to Siebel the Bank or any of its Subsidiaries to or afford access to the business, properties, assets, books or records of Siebel the Bank or any of its Subsidiaries to to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that has made, or has informed Siebel that it is seeking to make, or has made, an Acquisition Proposal; provided that if the Bank receives an Acquisition Proposal from a Third Party that the Board of Directors of the Bank reasonably believes may, upon clarification, constitute a Superior Proposal, the Bank may communicate with the Person making such Acquisition Proposal solely to the limited extent necessary to obtain the necessary clarification, (iii) grant any Third Party waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel the Bank or any of its Subsidiaries or amend or terminate the Siebel Rights Plan or redeem the Siebel Rights or (iv) enter into any agreement (except for confidentiality agreements, referred to in Section 6.04(b)) with any Third Party with respect to an Acquisition Proposal made by such Third Party, or any other agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Mergers or any of the other transactions contemplated by this AgreementProposal.
(b) Notwithstanding anything to the contrary contained in this Agreementforegoing, Siebel (through one or more of the Siebel Representatives) or its Board of Directors mayof the Bank, prior to the Siebel Stockholder Approvaldirectly or indirectly through advisors, agents or other intermediaries, may (i) engage in negotiations or discussions with any Third Party (or that, subject to the Bank’s compliance with the representatives of any Third Party) that Section 7.03(a), has made an a bona fide Acquisition Proposal not solicited in violation that the Board of Section 6.03(a) if such Acquisition Proposal constitutes or could Directors of the Bank reasonably be expected to believes will lead to a Superior Proposal (such Third Party, a “Qualified Third Party”)Proposal, (ii) furnish to such Qualified Third Party or its representatives non-public nonpublic information relating to Siebel the Bank or any of its Subsidiaries pursuant to an executed a confidentiality agreement containing customary nondisclosure provisions (which need not include “standstill ” or similar provisions) (and a copy of which shall be promptly (in all events within 24 hours) provided for informational purposes only to OracleParent) with terms no less favorable to the Bank than those contained in the Confidentiality Agreement (except that such confidentiality agreement may exclude the “standstill” provisions contained in the Confidentiality Agreement), (iii) grant a waiver or release under any standstill or similar agreement with respect following receipt of such Acquisition Proposal, fail to any class of equity securities of Siebel or any of its Subsidiariesmake, (iv) amend or terminate the Siebel Rights Plan or redeem the Siebel Rightswithdraw, (v) withdraw the Siebel Board Recommendation or modify the Siebel Board Recommendation in a manner adverse to Oracle Parent its recommendation to its shareholders referred to in Section 7.02 hereof, or (any such action, iv) enter into an agreement concerning a “Change in Recommendation”), (vi) terminate this Agreement Superior Proposal after satisfying the Bank’s obligations pursuant to and subject to the terms of Section 9.01(d) and/or (vii) take any action that any court of competent jurisdiction orders Siebel, one or more of the Siebel Representatives or the Board of Directors of Siebel to take, 11.01(d)(i); but in each case referred to in the foregoing clauses (i) through (iii), (iv) and (v) only if the Board of Directors of Siebel the Bank determines in good faith by a majority vote, after consultation with its outside legal counselcounsel to the Bank, that failure to take taking such action would be reasonably likely is in the best interests of the Bank and its shareholders and that such action is necessary to result in a breach of comply with its fiduciary duties under applicable Virginia Law. Nothing contained herein shall prevent the Board of Directors of Siebel the Bank from complying with Rule 14e-2(a), Rule 14d-9 and Item 1012(a) of Regulation M-A under the 1934 Act with regard to an Acquisition Proposal; provided that the Board of Directors of Siebel shall not recommend that Siebel’s stockholders tender shares of capital stock in connection with any tender or exchange offer unless such Board of Directors shall have determined in good faith by a majority vote, after consultation with its outside legal counsel, that failure to make such recommendation would be reasonably likely to result in a breach of its fiduciary duties under applicable Law.
(c) The Board of Directors of Siebel the Bank shall not take any of the actions referred to in clauses (i) through (viiiii) of the preceding subsection unless Siebel the Bank shall have delivered to Oracle Parent a prior written notice advising Oracle Parent that it intends to take such action, and the Bank shall continue to advise Parent after taking such action. In addition, Siebel the Bank shall notify Oracle Parent promptly (but in no event later than 24 hours) after an officer or director first obtains Knowledge of the receipt by Siebel the Bank (or any of the Siebel Representativesits advisors) of any Acquisition Proposal, any inquiry indication that would reasonably be expected to lead to a Third Party is considering making an Acquisition Proposal, Proposal or of any request for confidential information relating to Siebel the Bank or any of its Subsidiaries or for access to the business, properties, assets, books or records of Siebel the Bank or any of its Subsidiaries by any Third Party that has informed Siebel that it is may be considering making, or has made, an Acquisition Proposal. Siebel The Bank shall provide such notice orally and in writing and shall identify the Third Party making, and the material terms and conditions of, any such Acquisition Proposal, inquiry indication or request. Siebel shall promptly provide Oracle with any non-public information concerning Siebel’s business, present or future performance, financial condition or results of operations, provided to any Qualified Third Party after the date of this Agreement in connection with an Acquisition Proposal made by such Third Party that was not previously provided to Oracle. Siebel The Bank shall keep Oracle promptly and reasonably Parent fully informed, on a reasonably current basis, of the status and material details of any such Acquisition Proposal, inquiry indication or request. Siebel The Bank shall, and shall cause its Subsidiaries and the Siebel Representatives advisors, employees and other agents of the Bank and any of its Subsidiaries to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to the date hereof with respect to any Acquisition Proposal and shall instruct use its reasonable best efforts to cause any such Third Party (or its agents or advisors) in possession of confidential information about Siebel the Bank that was furnished by or on behalf of Siebel with respect to any Acquisition Proposal within the six months prior to the date hereof Bank to return or destroy all such information.
Appears in 1 contract
No Solicitation; Other Offers. (a) Neither Siebel Subject to Section 6.03(b), neither the Company nor any of its Subsidiaries shall, nor shall Siebel the Company or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants accountants, consultants or other agents, representatives agents or advisors (the “Siebel Representatives”) to, directly or indirectly, (i) solicit, initiateinitiate or take any action that could reasonably be expected to facilitate, knowingly facilitate or knowingly encourage the submission of of, any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any non-public nonpublic information relating to Siebel the Company or any of its Subsidiaries to or afford access to the business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries to to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by, any Third Party that has made, or has informed Siebel that it a Person acting in good faith would reasonably believe is seeking to make, or has made, an Acquisition Proposal, except to notify such Third Party as to the existence of these provisions, (iii) fail to make when required, withdraw or modify in a manner adverse to Parent the Company Board Recommendation (or recommend an Acquisition Proposal or take any action or make any public statement inconsistent with the Company Board Recommendation) (any of the foregoing in this clause (iii), an “Adverse Recommendation Change”), (iv) grant any Third Party any waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel the Company or any of its Subsidiaries or amend or terminate the Siebel Rights Plan or redeem the Siebel Rights or (ivv) enter into any agreement in principle, letter of intent, term sheet or other similar instrument relating to an Acquisition Proposal (except for confidentiality agreements, referred to in agreements under circumstances permitted by Section 6.04(b6.03(b)) with any Third Party with respect to an Acquisition Proposal made by such Third Party, or any other agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Mergers or any of the other transactions contemplated by this Agreement).
(b) Notwithstanding anything the foregoing, prior to receiving the contrary contained in this AgreementCompany Stockholder Approval, Siebel (through one or more of the Siebel Representatives) or its Board of Directors mayof the Company, prior to the Siebel Stockholder Approvaldirectly or indirectly through advisors, agents or other intermediaries, may (i) engage in negotiations or discussions with any Third Party (or with the representatives of any Third Party) that that, subject to the Company’s compliance with Section 6.03(a)(i), has made an a bona fide written Acquisition Proposal not solicited in violation that the Board of Section 6.03(a) if such Acquisition Proposal constitutes or could Directors of the Company reasonably be expected to believes will lead to a Superior Proposal (such Third Party, a “Qualified Third Party”)Proposal, (ii) thereafter furnish to such Qualified Third Party or its representatives non-public nonpublic information relating to Siebel the Company or any of its Subsidiaries pursuant to an executed a confidentiality agreement containing customary nondisclosure with terms no less favorable to the Company than those contained in the Confidentiality Agreement dated as of September 23, 2005 between the Company and Parent (the “Confidentiality Agreement”); provided, however, that such confidentiality agreement shall not be required to, and shall not, contain any provisions that would prevent the Company from complying with its obligation to provide the required disclosure to Parent pursuant to this Section 6.03 (which need not include “standstill ” or similar provisions) (and a copy of which confidentiality agreement shall be promptly (in all events within 24 hours) provided for informational purposes only to OracleParent), (iii) grant following a waiver or release under any standstill or similar agreement with respect to any class determination by the Board of equity securities Directors of Siebel or any of its Subsidiariesthe Company that such Acquisition Proposal is a Superior Proposal, make an Adverse Recommendation Change and/or (iv) amend or terminate the Siebel Rights Plan or redeem the Siebel Rights, (v) withdraw the Siebel Board Recommendation or modify the Siebel Board Recommendation in a manner adverse to Oracle (any such action, a “Change in Recommendation”), (vi) terminate this Agreement pursuant to and subject to the terms of Section 9.01(d) and/or (vii) take any action that any court of competent jurisdiction orders Siebel, one or more of the Siebel Representatives or the Board of Directors of Siebel Company to take, but in each case referred to in the foregoing clauses (i) through (iii), (iv) and (v) only if the Board of Directors of Siebel the Company determines in good faith by a majority vote, after consultation with considering advice from outside legal counsel to the Company (which may be its current outside legal counsel, Sxxxxxxx & Worcester LLP), that the failure to take such action would be reasonably likely to result in a breach of inconsistent with its fiduciary duties under applicable Applicable Law. Nothing contained herein shall prevent the Board of Directors of Siebel the Company from complying with Rule 14e-2(a), ) or Rule 14d-9 and Item 1012(a) of Regulation M-A under the 1934 Act with regard to an Acquisition Proposal; provided that the Board of Directors of Siebel the Company shall not recommend that Siebelthe Company’s stockholders tender shares of capital stock in connection with any tender or exchange offer unless such the Board of Directors shall have determined of the Company determines in good faith by a majority vote, after consultation with considering advice from outside legal counsel to the Company (which may be its current outside legal counsel, Sxxxxxxx & Worcester LLP), that the failure to make take such recommendation action would be reasonably likely to result in a breach of inconsistent with its fiduciary duties under applicable Applicable Law.
(c) The Board of Directors of Siebel the Company shall not take any of the actions referred to in clauses (i) through (viiiii) or the last sentence of Section 6.03(b) unless the preceding subsection unless Siebel Company shall have delivered to Oracle Parent a prior written notice advising Oracle Parent that it intends to take such action. In addition, Siebel the Company shall notify Oracle Parent promptly (but in no event later than 24 hours) after an executive officer or director of the Company first obtains Knowledge of the receipt by Siebel the Company (or any of the Siebel Representativesits advisors) of any Acquisition Proposal, any inquiry that would reasonably be expected to lead to an Acquisition Proposal, Proposal or any request for confidential information relating to Siebel the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries by from any Third Party that has informed Siebel that it a Person acting in good faith would reasonably believe is considering makingseeking to make, or has made, an Acquisition Proposal. Siebel The Company shall provide such notice orally and in writing and shall identify the Third Party making, and the material terms and conditions of, any such Acquisition Proposal, inquiry indication or request. Siebel shall promptly provide Oracle with any non-public information concerning Siebel’s business, present or future performance, financial condition or results of operations, provided to any Qualified Third Party after the date of this Agreement in connection with an Acquisition Proposal made by such Third Party that was not previously provided to Oracle. Siebel The Company shall keep Oracle promptly and Parent reasonably informed, on a reasonably current basis, of the status and material details of any such Acquisition Proposal, inquiry indication or request. Siebel The Company shall, and shall cause its Subsidiaries and the Siebel Representatives advisors, employees and other agents of the Company and any of its Subsidiaries to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to the date hereof with respect to any Acquisition Proposal and shall instruct use its reasonable best efforts to cause any such Third Party (or its agents or advisors) in possession of confidential information about Siebel the Company that was furnished by or on behalf of Siebel with respect to any Acquisition Proposal within the six months prior to the date hereof Company to return or destroy all such information.
Appears in 1 contract
Samples: Merger Agreement (Kla Tencor Corp)
No Solicitation; Other Offers. (a) Neither Siebel nor any Subject to Section 6.04(b) and Section 6.04(c), from the date hereof until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article 10, the Company shall not, shall cause its Subsidiaries shallnot to, nor shall Siebel or any of use its Subsidiaries authorize or permit any of reasonable best efforts to cause, and shall instruct, its or and their respective directors, officers, directorsemployees, employeesAffiliates, investment bankers, attorneys, accountants and other advisors or other agentsrepresentatives (collectively, representatives or advisors (the “Siebel Representatives”) not to, and shall not authorize its or their Representatives to, directly or indirectly, (i) solicit, initiate, initiate or take any action to knowingly facilitate or knowingly encourage the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any non-public information relating to Siebel the Company or any of its Subsidiaries to or afford access to the business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries to to, otherwise knowingly cooperate in any way with any Third Party that has mademay reasonably be expected to make, or has informed Siebel that it is seeking to makemade, an Acquisition Proposal, (iii) grant withhold, qualify, change, fail to make (including any Third Party waiver or release under any standstill or similar agreement with respect failure to any class reaffirm within five Business Days of equity securities a request from Parent following the making of Siebel a public acquisition proposal or any publicly disclosed change to the material terms thereof), withdraw or modify in a manner adverse to Parent the Company Board Recommendation (or recommend an Acquisition Proposal) (any of its Subsidiaries or amend or terminate the Siebel Rights Plan or redeem the Siebel Rights or foregoing in this clause (iii), an “Adverse Recommendation Change”), (iv) enter into any agreement (except for confidentiality agreementsin principle, referred to in Section 6.04(b)) with any Third Party with respect letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument relating to an Acquisition Proposal made (other than, to facilitate the sharing of information permitted by such Third PartySection 6.04(b), an Acceptable Confidentiality Agreement) or any other agreement, arrangement or understanding requiring it (v) publicly propose to abandon, terminate or fail to consummate the Mergers or do any of the other transactions contemplated by foregoing. The Company shall not release or waive any “standstill” provision or agreement to which it is a party; provided, that, if the Company is in compliance with this Agreement.
(b) Notwithstanding anything Section 6.04, the Company may release or waive any “standstill” provision or agreement to which it is a party for a Third Party who has indicated to the contrary contained in this Agreement, Siebel (through one or more of Company its desire to make an unsolicited non-public bona fide Acquisition Proposal to the Siebel Representatives) or its Company that the Board of Directors may, prior to of the Siebel Stockholder Approval, (i) engage in negotiations or discussions with any Third Party (or with the representatives of any Third Party) that has made an Acquisition Proposal not solicited in violation of Section 6.03(a) if such Acquisition Proposal constitutes or could Company reasonably be expected to believes may lead to a Superior Proposal (but which Third Party is unable to do so because of such Third Party“standstill” provision or agreement, a “Qualified Third Party”), (ii) furnish solely to the extent necessary to permit the counterparty to such Qualified Third Party “standstill” provision or its representatives agreement to make an unsolicited non-public information relating to Siebel or any of its Subsidiaries pursuant to an executed confidentiality agreement containing customary nondisclosure provisions (which need not include “standstill ” or similar provisions) (and a copy of which shall be promptly (in all events within 24 hours) provided for informational purposes only to Oracle), (iii) grant a waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel or any of its Subsidiaries, (iv) amend or terminate the Siebel Rights Plan or redeem the Siebel Rights, (v) withdraw the Siebel Board Recommendation or modify the Siebel Board Recommendation in a manner adverse to Oracle (any such action, a “Change in Recommendation”), (vi) terminate this Agreement pursuant to and subject Acquisition Proposal to the terms of Section 9.01(d) and/or (vii) take any action that any court of competent jurisdiction orders SiebelCompany, one if, prior to such release or more of waiver, the Siebel Representatives or the Company’s Board of Directors of Siebel to take, but in each case referred to in the foregoing clauses (iii), (iv) and (v) only if the Board of Directors of Siebel determines in good faith by a majority vote, after consultation with its outside legal counsel, counsel that failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Law. Nothing contained herein shall prevent the Board of Directors of Siebel from complying with Rule 14e-2(a), Rule 14d-9 and Item 1012(a) of Regulation M-A under the 1934 Act with regard to an Acquisition Proposal; provided that the Board of Directors of Siebel shall not recommend that Siebel’s stockholders tender shares of capital stock in connection with any tender or exchange offer unless such Board of Directors shall have determined in good faith by a majority vote, after consultation with its outside legal counsel, that failure to make such recommendation would be reasonably likely to result in a breach of its fiduciary duties under applicable Law.
(c) The Board of Directors of Siebel shall not take any of the actions referred to in clauses (i) through (vii) of the preceding subsection unless Siebel shall have delivered to Oracle a prior written notice advising Oracle that it intends to take such action. In addition, Siebel shall notify Oracle promptly (but in no event later than 24 hours) after an officer or director first obtains Knowledge of the receipt by Siebel (or any of the Siebel Representatives) of any Acquisition Proposal, any inquiry that would reasonably be expected to lead to an Acquisition Proposalviolate the directors’ fiduciary duties under Applicable Law; provided, or any request for confidential information relating to Siebel or any of its Subsidiaries or for access to further, that the business, properties, assets, books or records of Siebel or any of its Subsidiaries by any Third Party that has informed Siebel that it is considering making, or has made, an Acquisition Proposal. Siebel Company shall provide such notice advise Parent orally and in writing and shall identify the Third Party making, no later than 24 hours after any such release or waiver and the material terms and conditions of, any such Acquisition Proposal, inquiry or request. Siebel Company shall promptly provide Oracle with any non-public information concerning Siebel’s businesssuch release or waiver. Subject to Section 6.04(b) and Section 6.04(c), present or future performance, financial condition or results of operations, provided to any Qualified Third Party after on the date of this Agreement in connection with an Acquisition Proposal made by such Third Party that was not previously provided to Oracle. Siebel shall keep Oracle promptly and reasonably informedhereof, on a reasonably current basis, of the status and material details of any such Acquisition Proposal, inquiry or request. Siebel Company shall, and shall cause any of its Subsidiaries and the Siebel its and their Representatives to, to cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party and its Representatives and financing sources conducted prior to the date hereof with respect to any Acquisition Proposal Proposal. Promptly (but in any event within two Business Days) after the date hereof, the Company shall, and shall instruct cause its Subsidiaries and its and their respective Representatives to request the prompt return or destruction of all confidential information previously furnished in connection therewith and immediately terminate all physical and electronic “data room” access previously granted to any such Person or its Representatives.
(b) Notwithstanding anything contained in Section 6.04(a) to the contrary, if at any time after the date hereof and prior to obtaining the Company Stockholder Approval, (i) the Company or any of its Subsidiaries or any of their Representatives has received a bona fide written, unsolicited Acquisition Proposal that the Board of Directors of the Company reasonably believes may lead to a Superior Proposal; (ii) the Board of Directors of the Company determines in good faith, after consultation with outside legal counsel, that the failure to take such action would reasonably be expected to violate the directors’ fiduciary duties under Applicable Law, then the Company, directly or indirectly through its Representatives, may (1) engage in negotiations or discussions with such Third Party and its Representatives or financing sources or (2) furnish to such Third Party or its Representatives or financing sources non-public information relating to the Company or any of its Subsidiaries pursuant to an Acceptable Confidentiality Agreement; provided that the Company shall promptly (but in any event, within 24 hours) provide or make available to Parent any such information that is provided to any such Person which was not previously provided to or made available to Parent (including, when executed, a copy of such Acceptable Confidentiality Agreement); or (iii) take any nonappealable, final action that any court of competent jurisdiction orders the Company to take.
(c) In addition, nothing contained herein shall prevent the Company or the Board of Directors of the Company from (i) taking and disclosing to its stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the 1934 Act (or any similar communication to stockholders in connection with the making or amendment of a tender offer or exchange offer), (ii) making any legally required disclosure to stockholders with regard to the transactions contemplated by this Agreement or an Acquisition Proposal (provided that in the case of clauses (i) and (ii) neither the Company nor its agents Board of Directors may recommend any Acquisition Proposal unless permitted by Section 6.04(e)), (iii) issuing a “stop, look and listen” disclosure or advisorssimilar communication of the type contemplated by Rule 14d-9(f) under the 1934 Act or (iv) contacting and engaging in discussions with any person or group and their respective Representatives who has made an Acquisition Proposal that was not solicited in breach of this Section 6.04 solely for the purpose of clarifying such Acquisition Proposal and the terms thereof.
(d) The Board of Directors of the Company shall not take any of the actions referred to in Section 6.04(b) unless the Company shall have delivered to Parent a prior written notice advising Parent that it intends to take such action. In addition, after the date hereof and prior to obtaining the Company Stockholder Approval, the Company shall notify Parent promptly (and, in any event, within 24 hours) after (i) receipt by the Company (or any of its Representatives) of any Acquisition Proposal or any request for information relating to the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of the Company or any of its Subsidiaries by any Third Party that is considering making, or has made, an Acquisition Proposal, which notice shall include the material terms and conditions of any such Acquisition Proposal, indication or request (including if the Acquisition Proposal is in writing by providing copies of any material amendments or other material documents thereto) and (ii) any material change (including any change as to price) in possession a previously notified Acquisition Proposal. The Company hereby agrees that after the date hereof it shall not, and shall not permit its Subsidiaries to, enter into any agreement that prohibits or restricts it from providing to Parent the information contemplated by this Section 6.04(d) or complying with Section 6.04(e).
(e) Notwithstanding anything to the contrary set forth in this Agreement, but subject to compliance with clause (a) of confidential information about Siebel this Section 6.04, prior to, but not after, the time the Company Stockholder Approval is obtained, the Company’s Board of Directors may make an Adverse Recommendation Change that was furnished is the result of a Superior Proposal or an Intervening Event, if the Company’s Board of Directors determines in good faith, after consultation with its outside legal counsel, that failure to do so would reasonably be expected to violate the directors’ fiduciary duties under Applicable Law and, in the event of such an Adverse Recommendation Change that is a result of a Superior Proposal, the Company’s Board of Directors may also take action pursuant to Section 10.01(d)(i) of this Agreement in connection with accepting a Superior Proposal as contemplated herein; provided, that prior to any Adverse Recommendation Change or action pursuant to Section 10.01(d)(i) of this Agreement:
(i) the Company shall have provided prior written notice to Parent and Merger Subsidiary, at least four Business Days in advance of its intention to effect a Adverse Recommendation Change or to take action pursuant to Section 10.01(d)(i), which notice, if the intended Adverse Recommendation Change is not the result of a Superior Proposal, shall specify in reasonable detail the reasons for such Adverse Recommendation Change (including a reasonably detailed description of the Intervening Event) and, if concerning an intended Adverse Recommendation Change that is the result of a Superior Proposal, shall specify the identity of the party making such Superior Proposal and the material terms thereof;
(ii) after providing such notice and prior to effecting such Adverse Recommendation Change or taking such action pursuant to Section 10.01(d)(i), the Company shall, and shall cause its Representatives to, negotiate with Parent and Merger Subsidiary in good faith (if and to the extent Parent and Merger Subsidiary indicate to the Company their desire to negotiate) to make such adjustments in the terms and conditions of this Agreement as would permit the Company not to effect a Adverse Recommendation Change or take such action pursuant to Section 10.01(d)(i) in response to such a Superior Proposal; and
(iii) the Company’s Board of Directors shall have considered in good faith any changes to this Agreement offered in writing by Parent (and not revoked) during or on behalf prior to such four Business Day period and (x) if the intended Adverse Recommendation Change or the action pursuant to Section 10.01(d)(i) is the result of Siebel a Superior Proposal, shall have determined in good faith after consultation with its outside financial advisors and outside legal counsel that the Superior Proposal would continue to constitute a Superior Proposal if such changes were to be given effect and that failure to effect a Adverse Recommendation Change or take the action pursuant to Section 10.01(d)(i) would reasonably be expected to violate the directors’ fiduciary duties under Applicable Law, as the case may be, and (y) if the intended Adverse Recommendation Change is the result of an Intervening Event and not the result of a Superior Proposal, shall have determined in good faith after consultation with its outside financial advisor and outside legal counsel that failure to effect a Adverse Recommendation Change would reasonably be expected to violate the directors’ fiduciary duties under Applicable Law if such changes were to be given effect; provided, that, if the intended Adverse Recommendation Change is the result of a Superior Proposal or in the case of an action pursuant to Section 10.01(d)(i), in the event of any material revision to such Superior Proposal, including any revision to price, the Company shall be required to deliver a new written notice to Parent and Merger Subsidiary and to comply with the requirements of this Section 6.04(e) with respect to such new written notice; provided that in connection with each new notice contemplated by this section, each reference to the four Business Day period in this Section 6.04(e) shall be deemed to be a three Business Day period. For the avoidance of doubt, all information provided to Parent pursuant to this Section 6.04 shall be subject to the Confidentiality Agreement. Notwithstanding anything to the contrary herein, at any Acquisition Proposal within the six months time prior to the date hereof time the Company Stockholder Approval is obtained, the Company’s Board of Directors may make an Adverse Recommendation Change, otherwise in compliance with this Section 6.04(e), only in response to return (A) the Company receiving an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Proposal and not involving a material and willful breach of this Section 6.04(e) of this Agreement or destroy all such information(B) an Intervening Event.
(f) As used in this Agreement:
Appears in 1 contract
Samples: Merger Agreement (Chemtura CORP)
No Solicitation; Other Offers. (a) Neither Siebel From and after the execution of this Agreement by all of the parties hereto until the earlier of the Effective Time and the termination of this Agreement pursuant to Article 10, neither the Company nor any of its Subsidiaries shall, nor shall Siebel or any of and the Company and its Subsidiaries authorize or permit any of shall instruct its or their officers, directors, employees, investment bankers, attorneys, accountants accountants, consultants or other agents, representatives agents or advisors (the “Siebel Representatives”) not to, directly or indirectly, (i) solicit, initiate, knowingly facilitate encourage or knowingly encourage take any action designed to facilitate, or that could reasonably be expected to lead to, the submission of any Acquisition Proposal, (ii) enter into or participate engage in any discussions or negotiations with, or furnish any non-public information relating to Siebel the Company or any of its Subsidiaries to or afford access to the businessto, properties, assets, books or records of Siebel or any of its Subsidiaries to any Third Party that has made, or has informed Siebel that it to the Knowledge of the Company is seeking to make, or has made, an Acquisition Proposal, (iii) agree to, approve or recommend any Acquisition Proposal or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal (subject to the provisions of Section 6.03(b) below), or (iv) (A) amend or grant any Third Party waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel the Company or any of its Subsidiaries or amend or terminate the Siebel Rights Plan or redeem the Siebel Rights or (ivB) enter into any agreement (except for confidentiality agreements, referred to in Section 6.04(b)) with any Third Party with respect to an Acquisition Proposal made by such Third Party, or any (other agreement, arrangement or understanding requiring it than a confidentiality agreement pursuant to abandon, terminate or fail to consummate the Mergers or any of the other transactions contemplated by this AgreementSection 6.03(b)(ii)).
(b) Notwithstanding anything to the contrary contained in this Agreementforegoing, Siebel (through one the Special Committee or more of the Siebel Representatives) or its Board of Directors of the Company, directly or indirectly through advisors, agents or other intermediaries, may, prior in response to an unsolicited, bona fide Acquisition Proposal, from a Third Party which the Siebel Stockholder ApprovalSpecial Committee or the Board of Directors of the Company determines in good faith has sufficient financial resources available to it to consummate such a transaction, that the Special Committee of the Company's Board of Directors determines in good faith is reasonably likely to result in a Superior Proposal (provided such Acquisition Proposal is not received in violation of Section 6.03(a)), if the Special Committee or the Company's Board of Directors determines in good faith (after consultation with its financial and legal advisors) that such action is necessary for the Special Committee or the Company's Board of Directors to comply with its fiduciary duties under applicable law, (i) engage in negotiations or discussions with any the Third Party (or with the representatives of any Third Party) that has made an Acquisition Proposal not solicited in violation of Section 6.03(a) if making such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal (such Third Party, a “Qualified Third Party”)Proposal, (ii) furnish to such Qualified Third Party or its representatives non-non public information relating to, and afford access to Siebel the business, properties, assets, books and records of, the Company or any of its Subsidiaries pursuant to an executed confidentiality agreement containing customary nondisclosure provisions (which need not include “standstill ” or similar provisions) (terms and a copy conditions at least as restrictive in the aggregate as contained in that certain confidentiality agreement dated as of which shall be promptly (in all events within 24 hours) provided for informational purposes only to Oracle)April 30, 2003 between Snyder Associated Companies, Inc. and the Company, (iii) grant a amend or graxx xxx waiver or release under any standstill or similar agreement with respect referred to any class of equity securities of Siebel or any of its Subsidiaries, in Section 6.03(a)(iv)(A) and/or (iv) amend or terminate the Siebel Rights Plan or redeem the Siebel Rights, (v) withdraw the Siebel Board Recommendation or modify the Siebel Board Recommendation enter into a Superior Proposal Agreement in a manner adverse to Oracle (any such action, a “Change in Recommendation”accordance with Section 10.01(d)(ii), (vi) terminate this Agreement pursuant to and subject to the terms of Section 9.01(d) and/or (vii) take any action that any court of competent jurisdiction orders Siebel, one or more of the Siebel Representatives or the Board of Directors of Siebel to take, but in each case referred to in the foregoing clauses (iii), (iv) and (v) only if the Board of Directors of Siebel determines in good faith by a majority vote, after consultation with its outside legal counsel, that failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Law. Nothing contained herein shall prevent the Board of Directors of Siebel the Company from complying (i) taking any action that any court of competent jurisdiction orders the Company to take, (ii) making with Rule 14e-2(a)respect to an Acquisition Proposal a "stop look and listen" communication of the nature contemplated in, and otherwise in compliance with, Rule 14d-9 and Item 1012(a14d-9(f) of Regulation M-A under the 1934 Act as a result of receiving an Acquisition Proposal or (iii) with regard to an Acquisition Proposal; provided that , complying with Rules 14e-2(a) or 14d-9 under the 1934 Act or making such disclosure to the Company's stockholders as, in the good faith judgment of the Special Committee or the Company's Board of Directors of Siebel shall not recommend that Siebel’s stockholders tender shares of capital stock in connection with any tender or exchange offer unless such Board of Directors shall have determined in good faith by a majority vote, (after consultation with its outside legal counseladvisors), that failure is necessary for the Company's Board of Directors to make such recommendation would be reasonably likely to result in a breach of comply with its fiduciary duties under applicable Lawlaw.
(c) The Board of Directors of Siebel the Company shall not take any of the actions referred to in clauses (i) through (viiiv) of the preceding subsection first sentence of Section 6.03(b) or in the proviso to the second sentence of Section 6.02 unless Siebel shall have delivered the Company delivers to Oracle Parent no later than 24 hours prior to the taking of such action a prior written notice advising Oracle Parent that it intends to will take such action. In addition, Siebel the Company shall notify Oracle Parent promptly (but in no event later than 24 48 hours) after an officer or director first obtains Knowledge of the receipt by Siebel the Company (or any of the Siebel Representativesits advisors) of any Acquisition Proposal, any inquiry that would reasonably be expected to lead to an Acquisition Proposal, Proposal or of any request for confidential information relating to Siebel the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries (other than such components of such businesses, properties or assets that are generally accessible to the public) by any Third Party that has informed Siebel that it is to the Knowledge of the Company may be considering making, or has made, an Acquisition Proposal. Siebel The Company shall provide such notice orally and in writing and shall identify the Third Party making, and the material terms and conditions of, any such Acquisition Proposal, inquiry indication or request. Siebel shall promptly provide Oracle with any non-public information concerning Siebel’s business, present or future performance, financial condition or results of operations, provided to any Qualified Third Party after the date of this Agreement in connection with an Acquisition Proposal made by such Third Party that was not previously provided to Oracle. Siebel The Company shall keep Oracle promptly and reasonably informedParent informed in all material respects, on a reasonably current prompt basis, of the status and material details of any such Acquisition Proposal, inquiry indication or request. Siebel The Company shall, and shall cause its Subsidiaries and the Siebel Representatives advisors, employees and other agents of the Company and any of its Subsidiaries to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to the execution of this Agreement by all parties hereto with respect to any Acquisition Proposal and shall instruct any such Third Party (or its agents or advisors) in possession of confidential information about Siebel that was furnished by or on behalf of Siebel with respect to any Acquisition Proposal within request the six months prior to the date hereof to return or destroy destruction of all such informationinformation provided to Third Parties pursuant to a confidentiality agreement.
Appears in 1 contract
Samples: Merger Agreement (Sylvan Inc)
No Solicitation; Other Offers. (a) Neither Siebel Vodavi nor any of its Subsidiaries shall, nor shall Siebel Vodavi or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants or other agents, representatives or advisors (the “Siebel Vodavi Representatives”) to, directly or indirectly, (i) solicit, initiate, knowingly facilitate or knowingly encourage the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any non-public information relating to Siebel Vodavi or any of its Subsidiaries to or afford access to the business, properties, assets, books or records of Siebel Vodavi or any of its Subsidiaries to any Third Party that has made, or has informed Siebel Vodavi that it is seeking to make, an Acquisition Proposal, (iii) grant any Third Party waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel Vodavi or any of its Subsidiaries or amend or terminate the Siebel Rights Plan or redeem the Siebel Rights or (iv) enter into any agreement (except for confidentiality agreements, referred to in Section 6.04(b)) with any Third Party with respect to an Acquisition Proposal made by such Third Party, or any other agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Mergers Merger or any of the other transactions contemplated by this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, Siebel Vodavi (through one or more of the Siebel Vodavi Representatives) or its Board of Directors may, prior to the Siebel Vodavi Stockholder Approval, (i) engage in negotiations or discussions with any Third Party (or with the representatives of any Third Party) that has made an Acquisition Proposal not solicited in violation of Section 6.03(a) if such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal (such Third Party, a “Qualified Third Party”), (ii) furnish to such Qualified Third Party or its representatives non-public information relating to Siebel Vodavi or any of its Subsidiaries pursuant to an executed confidentiality agreement containing customary nondisclosure provisions (which need not include “standstill standstill” or similar provisions) (and a copy of which shall be promptly (in all events within 24 hours) provided for informational purposes only to Oracle), (iii) grant a waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel Vodavi or any of its Subsidiaries, (iv) amend or terminate the Siebel Rights Plan or redeem the Siebel Rights, (v) withdraw the Siebel Vodavi Board Recommendation or modify the Siebel Vodavi Board Recommendation in a manner adverse to Oracle Vertical (any such action, a “Change in Recommendation”), (viv) terminate this Agreement pursuant to and subject to the terms of Section 9.01(d) and/or (viivi) take any action that any court of competent jurisdiction orders SiebelVodavi, one or more of the Siebel Vodavi Representatives or the Board of Directors of Siebel Vodavi to take, but in each case referred to in the foregoing clauses (iii), (iv) and (v) only if the Board of Directors of Siebel Vodavi determines in good faith by a majority vote, after consultation with its outside legal counsel, that failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Law. Nothing contained herein shall prevent the Board of Directors of Siebel Vodavi from complying with Rule 14e-2(a), Rule 14d-9 and Item 1012(a) of Regulation M-A under the 1934 Act with regard to an Acquisition Proposal; provided that the Board of Directors of Siebel Vodavi shall not recommend that SiebelVodavi’s stockholders tender shares of capital stock in connection with any tender or exchange offer unless such Board of Directors shall have determined in good faith by a majority vote, after consultation with its outside legal counsel, that failure to make such recommendation would be reasonably likely to result in a breach of its fiduciary duties under applicable Law.
(c) The Board of Directors of Siebel Vodavi shall not take any of the actions referred to in clauses (i) through (viivi) of the preceding subsection unless Siebel Vodavi shall have delivered to Oracle Vertical a prior written notice advising Oracle Vertical that it intends to take such action. In addition, Siebel Vodavi shall notify Oracle Vertical promptly (but in no event later than 24 hours) after an officer or director first obtains Knowledge of the receipt by Siebel Vodavi (or any of the Siebel Vodavi Representatives) of any Acquisition Proposal, any inquiry that would reasonably be expected to lead to an Acquisition Proposal, or any request for confidential information relating to Siebel Vodavi or any of its Subsidiaries or for access to the business, properties, assets, books or records of Siebel Vodavi or any of its Subsidiaries by any Third Party that has informed Siebel Vodavi that it is considering making, or has made, an Acquisition Proposal. Siebel Vodavi shall provide such notice orally and in writing and shall shall, to the extent known, identify the Third Party making, and the material terms and conditions of, any such Acquisition Proposal, inquiry or request. Siebel Vodavi shall promptly provide Oracle Vertical with any non-public information concerning SiebelVodavi’s business, present or future performance, financial condition or results of operations, provided to any Qualified Third Party after the date of this Agreement in connection with an Acquisition Proposal made by such Third Party that was not previously provided to OracleVertical. Siebel Vodavi shall keep Oracle Vertical promptly and reasonably informed, on a reasonably current basis, of the status and material details of any such Acquisition Proposal, inquiry or request. Siebel Vodavi shall, and shall cause its Subsidiaries and the Siebel Vodavi Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party with respect to any Acquisition Proposal and shall instruct any such Third Party (or its agents or advisors) in possession of confidential information about Siebel Vodavi that was furnished by or on behalf of Siebel Vodavi with respect to any Acquisition Proposal within the six months prior to the date hereof to return or destroy all such information.
Appears in 1 contract
No Solicitation; Other Offers. (a) Neither Siebel the Company nor any of its Subsidiaries shall, nor shall Siebel the Company or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants accountants, consultants or other agents, representatives agents or advisors (the “Siebel Representatives”) to, directly or indirectly, (i) solicit, initiate, knowingly initiate or take any action to facilitate or knowingly encourage the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any non-public information relating to Siebel the Company or any of its Subsidiaries to or afford access to the business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries to to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that has made, or has informed Siebel that it is seeking to make, or has made, an Acquisition Proposal, (iii) grant any Third Party waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel the Company or any of its Subsidiaries or Subsidiaries, (iv) amend or terminate the Siebel Rights Plan grant any waiver or release or approve any transactions or redeem Rights under the Siebel Rights Agreement (except as contemplated herein with respect to the Merger) or (ivv) enter into any agreement (except for confidentiality agreements, referred to in Section 6.04(b)) with any Third Party with respect to an Acquisition Proposal made other than a confidentiality agreement as permitted by such Third Party, or any other agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Mergers or any of the other transactions contemplated by this AgreementSection 6.04(b).
(b) Notwithstanding anything the foregoing, but subject to the contrary contained in this Agreementprovisions of Section 6.04(c), Siebel (through one or more of the Siebel Representatives) or its Board of Directors mayDirectors, directly or indirectly through advisors, agents or other intermediaries, at any time prior to the Siebel Stockholder Approvaladoption and approval of the Merger by the Company's stockholders, may (i) engage in negotiations or discussions with any Third Party (or that, subject to the Company's compliance with the representatives of any Third Party) that Section 6.04(a), has made an a bona fide written Acquisition Proposal not solicited that the Board of Directors determines in violation of Section 6.03(a) if such Acquisition Proposal good faith by a majority vote constitutes or could is reasonably be expected to lead to result in a Superior Proposal (such Third Party, a “Qualified Third Party”)Proposal, (ii) furnish to such Qualified Third Party or and its representatives non-public auditors, advisors and lenders nonpublic information relating to Siebel to, and afford such Third Party access to, the business properties, assets, books and records of, the Company or any of its Subsidiaries pursuant to an executed a confidentiality agreement containing customary nondisclosure with terms no less favorable to the Company than those contained in the Confidentiality Agreement including the standstill and no hire provisions in the Confidentiality Agreement (which need not include “standstill ” or similar provisions) (and a copy of which shall be promptly (in all events within 24 hours) provided for informational purposes only to OracleParent), (iii) grant a waiver or release under any standstill or similar agreement with respect following receipt of such Superior Proposal, fail to any class of equity securities of Siebel or any of its Subsidiariesmake, (iv) amend or terminate the Siebel Rights Plan or redeem the Siebel Rightswithdraw, (v) withdraw the Siebel Board Recommendation or modify the Siebel Board Recommendation in a manner adverse to Oracle (any such action, a “Change Parent its recommendation to its stockholders referred to in Recommendation”), (vi) terminate this Agreement pursuant to and subject to the terms of Section 9.01(d) 6.02 hereof and/or (viiiv) take any action that any court of competent jurisdiction orders Siebel, one or more of the Siebel Representatives or the Board of Directors of Siebel Company to take, but in each case referred to in the foregoing clauses (i) through (iii), (iv) and (v) only if the Board of Directors of Siebel determines in good faith by a majority vote, after consultation with its considering the advice from the outside legal counselcounsel to the Company, that failure to it should take such action would be reasonably likely to result in a breach of comply with its fiduciary duties under applicable Lawlaw. Nothing contained herein shall prevent the Board of Directors of Siebel from complying with Rule 14e-2(a), Rule 14d-9 and Item 1012(a) of Regulation M-A under the 1934 Act with regard to an Acquisition Proposal; provided that if such disclosure has the effect of withdrawing, modifying or qualifying the recommendation to the Company's stockholders referred to in Section 6.02 hereof in a manner adverse to Parent, Merger Subsidiary or the approval of this Agreement by the Board of Directors of Siebel the Company, Parent shall not recommend that Siebel’s stockholders tender shares have the right to terminate this Agreement to the extent set forth in Section 10.01(c) of capital stock in connection with this Agreement. For the avoidance of doubt, for all purposes under this Agreement, including Article 10, any tender or exchange offer unless such disclosure by the Board of Directors of the status of any Acquisition Proposal (without comment on the merits thereof) shall have determined in good faith by not be considered a majority vote, after consultation with its outside legal counsel, that failure to make such recommendation would be reasonably likely make, withdrawal or modification adverse to result in a breach Parent or Merger Subsidiary of its fiduciary duties under applicable Lawrecommendation of approval of this Agreement and the Merger by the Company's stockholders.
(c) The Board of Directors of Siebel shall not take any of the actions referred to in clauses (i) through (viiiii) of the preceding subsection unless Siebel the Company shall have delivered to Oracle Parent a prior written notice advising Oracle Parent that it intends to take such action. In addition, Siebel the Company shall notify Oracle Parent promptly (but in no event later than 24 hours) after an officer or director first obtains Knowledge of the receipt by Siebel the Company (or any of the Siebel Representativesits advisors) of any Acquisition Proposal, any inquiry that would reasonably be expected to lead to an Acquisition Proposal, Proposal or any request for confidential information relating to Siebel the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of Siebel the Company or any of its Subsidiaries by any Third Party that has informed Siebel that it is may be considering making, or has made, making an Acquisition Proposal. Siebel The Company shall provide such notice orally and in writing and shall identify the provide Parent with copies of any written Acquisition Proposal. The Company shall provide to Parent any information provided to such Third Party making, and the Party. The Company shall promptly inform Parent of any material terms and conditions of, developments with respect to any such Acquisition Proposal, inquiry indication or request. Siebel shall promptly provide Oracle with any non-public information concerning Siebel’s business, present or future performance, financial condition or results of operations, provided to any Qualified Third Party after the date of this Agreement in connection with an Acquisition Proposal made by such Third Party that was not previously provided to Oracle. Siebel shall keep Oracle promptly and reasonably informed, on a reasonably current basis, of the status and material details of any such Acquisition Proposal, inquiry or request. Siebel The Company shall, and shall cause its Subsidiaries and the Siebel Representatives advisors, employees and other agents of the Company and any of its Subsidiaries to, cease immediately and cause to be terminated any and all existing activities, discussions or and negotiations, if any, with any Third Party conducted prior to the date hereof with respect to any Acquisition Proposal and shall instruct use its commercially reasonable efforts to cause any such Third Party (or its agents or advisors) in possession of confidential information about Siebel the Company that was furnished by or on behalf of Siebel with respect to any Acquisition Proposal within the six months prior to the date hereof Company to return or destroy all such information.
Appears in 1 contract
No Solicitation; Other Offers. (a) Neither Siebel Vodavi nor any of its Subsidiaries shall, nor shall Siebel Vodavi or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants or other agents, representatives or advisors (the “Siebel Vodavi Representatives”) to, directly or indirectly, (i) solicit, initiate, knowingly facilitate or knowingly encourage the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any non-public information relating to Siebel Vodavi or any of its Subsidiaries to or afford access to the business, properties, assets, books or records of Siebel Vodavi or any of its Subsidiaries to any Third Party that has made, or has informed Siebel Vodavi that it is seeking to make, an Acquisition Proposal, (iii) grant any Third Party waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel Vodavi or any of its Subsidiaries or amend or terminate the Siebel Rights Plan or redeem the Siebel Rights or (iv) enter into any agreement (except for confidentiality agreements, referred to in Section 6.04(b)) with any Third Party with respect to an Acquisition Proposal made by such Third Party, or any other agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Mergers Merger or any of the other transactions contemplated by this Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, Siebel Vodavi (through one or more of the Siebel Vodavi Representatives) or its Board of Directors may, prior to the Siebel Vodavi Stockholder Approval, (i) engage in negotiations or discussions with any Third Party (or with the representatives of any Third Party) that has made an Acquisition Proposal not solicited in violation of Section 6.03(a) if such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal (such Third Party, a “Qualified Third Party”), (ii) furnish to such Qualified Third Party or its representatives non-public information relating to Siebel Vodavi or any of its Subsidiaries pursuant to an executed confidentiality agreement containing customary nondisclosure provisions (which need not include “standstill ” “ or similar provisions) (and a copy of which shall be promptly (in all events within 24 hours) provided for informational purposes only to Oracle), (iii) grant a waiver or release under any standstill or similar agreement with respect to any class of equity securities of Siebel Vodavi or any of its Subsidiaries, (iv) amend or terminate the Siebel Rights Plan or redeem the Siebel Rights, (v) withdraw the Siebel Vodavi Board Recommendation or modify the Siebel Vodavi Board Recommendation in a manner adverse to Oracle Vertical (any such action, a “Change in Recommendation”), (viv) terminate this Agreement pursuant to and subject to the terms of Section 9.01(d) and/or (viivi) take any action that any court of competent jurisdiction orders SiebelVodavi, one or more of the Siebel Vodavi Representatives or the Board of Directors of Siebel Vodavi to take, but in each case referred to in the foregoing clauses (iii), (iv) and (v) only if the Board of Directors of Siebel Vodavi determines in good faith by a majority vote, after consultation with its outside legal counsel, that failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Law. Nothing contained herein shall prevent the Board of Directors of Siebel Vodavi from complying with Rule 14e-2(a), Rule 14d-9 and Item 1012(a) of Regulation M-A under the 1934 Act with regard to an Acquisition Proposal; provided that the Board of Directors of Siebel Vodavi shall not recommend that SiebelVodavi’s stockholders tender shares of capital stock in connection with any tender or exchange offer unless such Board of Directors shall have determined in good faith by a majority vote, after consultation with its outside legal counsel, that failure to make such recommendation would be reasonably likely to result in a breach of its fiduciary duties under applicable Law.
(c) The Board of Directors of Siebel Vodavi shall not take any of the actions referred to in clauses (i) through (viivi) of the preceding subsection unless Siebel Vodavi shall have delivered to Oracle Vertical a prior written notice advising Oracle Vertical that it intends to take such action. In addition, Siebel Vodavi shall notify Oracle Vertical promptly (but in no event later than 24 hours) after an officer or director first obtains Knowledge of the receipt by Siebel Vodavi (or any of the Siebel Vodavi Representatives) of any Acquisition Proposal, any inquiry that would reasonably be expected to lead to an Acquisition Proposal, or any request for confidential information relating to Siebel Vodavi or any of its Subsidiaries or for access to the business, properties, assets, books or records of Siebel Vodavi or any of its Subsidiaries by any Third Party that has informed Siebel Vodavi that it is considering making, or has made, an Acquisition Proposal. Siebel Vodavi shall provide such notice orally and in writing and shall shall, to the extent known, identify the Third Party making, and the material terms and conditions of, any such Acquisition Proposal, inquiry or request. Siebel Vodavi shall promptly provide Oracle Vertical with any non-public information concerning SiebelVodavi’s business, present or future performance, financial condition or results of operations, provided to any Qualified Third Party after the date of this Agreement in connection with an Acquisition Proposal made by such Third Party that was not previously provided to OracleVertical. Siebel Vodavi shall keep Oracle Vertical promptly and reasonably informed, on a reasonably current basis, of the status and material details of any such Acquisition Proposal, inquiry or request. Siebel Vodavi shall, and shall cause its Subsidiaries and the Siebel Vodavi Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party with respect to any Acquisition Proposal and shall instruct any such Third Party (or its agents or advisors) in possession of confidential information about Siebel Vodavi that was furnished by or on behalf of Siebel Vodavi with respect to any Acquisition Proposal within the six months prior to the date hereof to return or destroy all such information.
Appears in 1 contract
