No Solicitation Provisions. The Merger Agreement provides that the Company shall, and shall cause its subsidiaries to, cease immediately and cause to be terminated, and shall not authorize or knowingly permit any of its or their directors, officers, employees, advisors and investment bankers (the "Representatives") to continue, any and all existing activities, discussions or negotiations, if any, with any third party conducted prior to the date of the Merger Agreement with respect to any Takeover Proposal until such time, if any, as the Merger Agreement is terminated in accordance with its terms. The Merger Agreement further provides that the Company shall not, and shall cause its subsidiaries not to, and shall not authorize or permit its and its subsidiaries' Representatives to, directly or indirectly, solicit, initiate, or knowingly encourage the submission of any inquiries, or the making of any proposal or offer, that constitutes a Takeover Proposal or that could reasonably be expected to lead to any Takeover Proposal or (i) conduct, engage in, or otherwise participate in any discussions or negotiations regarding a Takeover Proposal or otherwise cooperate with or knowingly assist, facilitate or encourage any such discussions or negotiations, or provide any non-public information or data to any person relating to the Company or any of its subsidiaries, or afford to any person access to the business, properties, assets, books or records or personnel of the Company or any of its subsidiaries, (ii) approve or recommend, or publicly propose to approve or recommend, any Takeover Proposal, (iii) grant any waiver, amendment or release under any standstill or confidentiality agreement, or (iv) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or similar definitive agreement relating to any Takeover Proposal (each, a "Company Acquisition Agreement"). The Company shall notify Parent promptly (but in no event later than 48 hours) after it obtains knowledge of the receipt by the Company (or any of its Representatives) of any Takeover Proposal any inquiry that would reasonably be expected to lead to a Takeover Proposal, 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. In such notice, the Company shall identify the third party making, and details of the material terms and conditions of, any such Takeover Proposal, indication or request. The Company shall keep Parent reasonably apprised of any material developments, discussions and negotiations with respect to any such Takeover Proposal, indication or request, including any material amendments or proposed amendments as to price and other material terms thereof. The Company shall promptly provide Parent with copies of any non-public information concerning the Company's business, present or future performance, financial condition or results of operations, provided to any third party to the extent such information has not been previously provided to Parent. As used in the Merger Agreement, a "Takeover Proposal" means any written proposal or offer from any person (other than Parent and its subsidiaries, including Purchaser) relating to any (a) direct or indirect acquisition of assets of the Company or its subsidiaries (including any voting equity interests of subsidiaries, but excluding sales of assets in the ordinary course of business) equal to twenty percent (20%) or more of the Company's consolidated assets or to which twenty percent (20%) or more of the Company's net revenues or net income on a consolidated basis are attributable, (b) direct or indirect acquisition of twenty percent (20%) or more of the equity interests of the Company (by vote or value), (c) tender offer or exchange offer that if consummated would result in any person beneficially owning (within the meaning of Section 13(d) of the Exchange Act) twenty percent (20%) or more of the equity interests of the Company (by vote or value), (d) merger, consolidation, other business combination or similar transaction involving the Company or any of its subsidiaries, pursuant to which such person would own twenty percent (20%) or more of the equity interests (by vote or value), consolidated assets, net revenues or net income of the Company, taken as a whole, (e) liquidation or dissolution (or the adoption of a plan of liquidation or dissolution) of the Company, or (f) any combination of the foregoing. As used in the Merger Agreement, a "Superior Proposal" means a bona fide written Takeover Proposal not resulting from any violation or breach of the Merger Agreement (with all references to "20%" in the definition of Takeover Proposal deemed to be "a majority" for purposes of the definition of Superior Proposal) made by any person that the Company's board of directors determines in good faith (after consultation with outside legal counsel and the Company's financial advisor) is more favorable from a financial point of view to the holders of Company's stockholders than the transactions contemplated by the Merger Agreement, taking into account (a) all financial considerations, (b) the identity of the third party making such Takeover Proposal, (c) the anticipated timing, conditions (including any financing condition or the reliability of any debt or equity funding commitments) and prospects for completion of such Takeover Proposal, (d) the other terms and conditions of such Takeover Proposal and the implications thereof on the Company, including relevant legal, regulatory approvals, equityholder litigation, termination fee and expense reimbursement provisions and other aspects of such Takeover Proposal deemed relevant by the Company's board of directors and (e) any revisions to the terms of the Merger Agreement and the Merger proposed by Parent during the Notice Period (as defined below). The Company's Recommendation. The Company's Board of Directors, among other things, has unanimously (i) determined that the terms of the Offer, the Merger and the other transactions contemplated by the Merger Agreement are fair to and in the best interests of the Company and its stockholders and declared the Merger Agreement advisable, (ii) approved the execution, delivery and performance of the Merger Agreement and the consummation of the transactions contemplated thereby, including the Offer and the Merger; and (iii) recommended that the stockholders of the Company accept the Offer, tender their Shares to the Purchaser pursuant to the Offer and, if applicable, adopt the Merger Agreement and the Merger (the "Company Board Recommendation"). Pursuant to the Merger Agreement, neither the Company's board of directors nor any committee thereof shall fail to recommend that the stockholders of the Company accept the Offer, tender their Shares to Purchaser pursuant to the Offer and, if applicable, adopt the Merger Agreement or withdraw, amend, modify or materially qualify the Company Board Recommendation in a manner adverse to Parent or Purchaser, or recommend a Takeover Proposal, or make any public statement inconsistent with the Company Board Recommendation, or resolve or agree to take any of the foregoing actions (any of the foregoing, a "Company Adverse Recommendation Change"). However, at any time prior to the closing of the Offer (but in no event after such time): • Subject to compliance with Section 6.04 of the Merger Agreement, prior to the closing of the Offer the Company's board of directors may, directly or indirectly through their Representatives, (i) participate in negotiations or discussions with any third party that has made (and not withdrawn) an unsolicited Takeover Proposal that the Company's board of directors believes in good faith, after consultation with outside legal counsel and the Company financial advisor, constitutes or is reasonably expected to result in 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 that constitutes an Acceptable Confidentiality Agreement (as defined in the Merger Agreement), (iii) following receipt of and on account of a Superior Proposal, make a Company Adverse Recommendation Change, (iv) terminate the Merger Agreement in accordance with the terms of Section 8.04(a) thereof, and/or (v) take any action that any court of competent jurisdiction orders the Company to take (which order remains unstayed), but in each case referred to in the foregoing clauses (i) through (v), only if the Company's board of directors determines in good faith, after consultation with outside legal counsel, that the failure to take such action would reasonably be expected to cause the Company's board of directors to be in breach of its fiduciary duties under applicable law. In addition, the Company's board of directors may, at any time, so long as it is not in breach of Section 6.04 of the Merger Agreement, withdraw, modify or amend the Company Board Recommendation and terminate the Merger Agreement if the Company's board of directors determines, after consultation with outside legal counsel, that the failure to effect any such withdrawal, modification or amendment would reasonably be expected to cause the Company's board of directors to be in breach of its fiduciary duties under applicable law. Nothing contained in the Merger Agreement shall prevent the Company's board of directors from disclosing to the Company's stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act with regard to a Takeover Proposal, if the Company determines, after consultation with outside legal counsel, that failure to disclose such position would constitute a violation of applicable law. • The Company's board of directors may make a Company Adverse Recommendation Change or enter into (or permit any subsidiary to enter into) an agreement with respect to a Takeover Proposal only if: (i) the Company promptly notifies Parent, in writing, at least 4 business days (the "Notice Period") before making a Company Adverse Recommendation Change or entering into (or causing a subsidiary to enter into) an agreement with respect to an agreement with respect to a Takeover Proposal, of its intention to take such action with respect to a Superior Proposal, which notice shall state that the Company has received a Takeover Proposal that the Company's board of directors intends to declare a Superior Proposal and that the Company's board of directors intends to make a Company Adverse Recommendation Change and/or the Company intends to enter into an agreement with respect to a Takeover Proposal; (ii) the Company attaches to such notice the material terms and conditions of such Superior Proposal and the identity of the third party making such Superior Proposal; (iii) the Company shall, during the Notice Period, negotiate with Parent in good faith to make such adjustments in the terms and conditions of the Merger Agreement so that such Takeover Proposal ceases to constitute a Superior Proposal (it being agreed that in the event that, after commencement of the Notice Period, there is any material revision to the terms of a Superior Proposal, including, any revision in price, the Notice Period shall be extended, if applicable, to ensure that at least 3 business days remains in the Notice Period subsequent to the time the Company notifies Parent of any such material revision); and (iv) the Company's board of directors determines in good faith, after consulting with outside legal counsel and the Company's financial advisor, that such Takeover Proposal continues to constitute a Superior Proposal after taking into account any adjustments made to the Merger Agreement by Parent during the Notice Period.
Appears in 1 contract
No Solicitation Provisions. The Except as expressly permitted by the non-solicitation provisions in the Merger Agreement provides that the Company and except as may relate to any Excluded Party (as defined below) only for so long as they are Excluded Parties, O’Charley’s and its subsidiaries and their respective officers and directors shall, and O’Charley’s shall cause its subsidiaries and its subsidiaries’ other Representatives to: • at 12:00 a.m. (New York City time) on March 7, 2012 (the “No-Shop Period Start Date”) immediately cease immediately and cause terminate any solicitation, encouragement (including by way of providing access to be terminatednon-public information or the business, and shall not authorize properties, assets or knowingly permit personnel of O’Charley’s or any of its or their directorssubsidiaries to any party and its Representatives, officers, employees, advisors its affiliates and investment bankers (the "Representatives") to continue, any its prospective equity and all existing activitiesdebt financing sources), discussions or negotiations, if any, negotiations (or any other actions described under the heading “Go Shop Provisions” above) with any third party conducted prior to the date of the Merger Agreement parties that may be ongoing with respect to any Takeover Proposal until such timeinquiry, if any, as the Merger Agreement is terminated in accordance with its terms. The Merger Agreement further provides that the Company shall notproposal or Acquisition Proposal, and as promptly as practicable thereafter deliver a written notice to each such party to the effect that O’Charley’s is ending all discussions and negotiations with that party with respect to any inquiry, proposal or Acquisition Proposal, effective immediately, which notice shall cause its subsidiaries not to, and shall not authorize also request that party to return or permit its destroy promptly all confidential information concerning O’Charley’s and its subsidiaries' Representatives to, and • from the No-Shop Period Start Date until the earlier of the Effective Time or the termination of the Merger Agreement, not directly or indirectly: • initiate, solicit, initiate, knowingly facilitate or knowingly encourage (publicly or otherwise) (including by way of providing access to non-public information or the submission business, properties, assets or personnel of O’Charley’s or any inquiriesof its subsidiaries to any party and its Representatives, its affiliates and its Table of Contents prospective equity and debt financing sources) any inquiries regarding, or the making making, submission or announcement of any proposal or offeroffer that constitutes, that constitutes a Takeover Proposal or that could would reasonably be expected to lead to any Takeover Proposal to, an Acquisition Proposal; • engage or (i) conductenter into, engage in, continue or otherwise participate in any discussions or negotiations regarding a Takeover Proposal or otherwise cooperate with or knowingly assist, facilitate or encourage any such discussions or negotiationsrespect to, or provide any non-public information or data to any person relating to the Company concerning O’Charley’s or any of its subsidiaries, subsidiaries or afford to any person access to the business, properties, assets, books or records assets or personnel of the Company O’Charley’s or any of its subsidiaries, (ii) approve or recommendsubsidiaries to any party relating to, or publicly propose that would reasonably be expected to approve or recommendlead to, any Takeover ProposalAcquisition Proposal or otherwise cooperate with or assist or participate in, (iii) grant or knowingly facilitate such inquiries, proposals, discussions or negotiations; • xxxxx to any party any waiver, amendment or release under any standstill or confidentiality agreement, or (iv) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or similar definitive any takeover statute, other than (if the Company’s Board of Directors determines that the failure to take such action would be inconsistent with the Company’s directors’ fiduciary duties under applicable law) a limited waiver, amendment or release under any standstill agreement relating for the sole purpose of allowing any party or parties to any Takeover make an Acquisition Proposal (each, a "Company Acquisition Agreement"). The Company shall notify Parent promptly (but in no event later than 48 hours) after it obtains knowledge of the receipt by the Company (or any of its Representatives) of any Takeover Proposal any inquiry an offer that would reasonably be expected to lead to an Acquisition Proposal; or • otherwise knowingly facilitate any such inquiries, proposals, discussion or negotiations or any effort or attempt by any party to make an Acquisition Proposal. Not later than 24 hours after the expiration of the Go-Shop Period, O’Charley’s shall certify to Parent and the Purchaser the number and identity of any Excluded Parties and, subject to the ability of O’Charley’s to make a Takeover Proposal, any request for Recommendation Withdrawal pursuant to and in accordance with the 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. In such notice, the Company shall identify the third party making, and details of the material terms and conditions of, any such Takeover Proposal, indication or request. The Company shall keep Parent reasonably apprised of any material developments, discussions and negotiations with respect to any such Takeover Proposal, indication or request, including any material amendments or proposed amendments as to price and other material terms thereof. The Company shall promptly provide Parent with copies of any non-public information concerning the Company's business, present or future performance, financial condition or results of operations, provided to any third party to the extent such information has not been previously provided to Parent. As used in solicitation provisions under the Merger Agreement, a "Takeover Proposal" means any written proposal or offer from any person (other than Parent and its subsidiaries, including Purchaser) relating to any (a) direct or indirect acquisition of assets of the Company or its subsidiaries (including any voting equity interests of subsidiaries, but excluding sales of assets in the ordinary course of business) equal to twenty percent (20%) or more of the Company's consolidated assets or to which twenty percent (20%) or more of the Company's net revenues or net income on a consolidated basis are attributable, (b) direct or indirect acquisition of twenty percent (20%) or more of the equity interests of the Company (by vote or value), (c) tender offer or exchange offer that if consummated would result in any person beneficially owning (within the meaning of Section 13(d) of the Exchange Act) twenty percent (20%) or more of the equity interests of the Company (by vote or value), (d) merger, consolidation, other business combination or similar transaction involving the Company or any of its subsidiaries, pursuant to which such person would own twenty percent (20%) or more of the equity interests (by vote or value), consolidated assets, net revenues or net income of the Company, taken as a whole, (e) liquidation or dissolution (or the adoption of a plan of liquidation or dissolution) of the Company, or (f) any combination of the foregoing. As used in the Merger Agreement, a "Superior Proposal" means a bona fide written Takeover Proposal not resulting from any violation or breach of the Merger Agreement (with all references to "20%" in the definition of Takeover Proposal deemed to be "a majority" for purposes of the definition of Superior Proposal) made by any person that the Company's board of directors determines in good faith (after consultation with outside legal counsel and the Company's financial advisor) is more favorable from a financial point of view to the holders of Company's stockholders than the transactions contemplated by the Merger Agreement, taking into account (a) all financial considerations, (b) the identity of the third party making such Takeover Proposal, (c) the anticipated timing, conditions (including any financing condition or the reliability of any debt or equity funding commitments) and prospects for completion of such Takeover Proposal, (d) the other terms and conditions of such Takeover Proposal and the implications thereof on the Company, including relevant legal, regulatory approvals, equityholder litigation, termination fee and expense reimbursement provisions and other aspects of such Takeover Proposal deemed relevant by the Company's board of directors and (e) any revisions to the terms of the Merger Agreement and the Merger proposed by Parent during the Notice Period (as defined below). The Company's Recommendation. The Company's ’s Board of Directors, among other things, has unanimously (i) determined that the terms of the Offer, the Merger Directors shall publicly and the other transactions contemplated by the Merger Agreement are fair to and in the best interests of the Company and its stockholders and declared the Merger Agreement advisable, (ii) approved the execution, delivery and performance of the Merger Agreement and the consummation of the transactions contemplated thereby, including the Offer and the Merger; and (iii) recommended that the stockholders of the Company accept the Offer, tender their Shares to the Purchaser pursuant to the Offer and, if applicable, adopt the Merger Agreement and the Merger (the "Company Board Recommendation"). Pursuant to the Merger Agreement, neither the Company's board of directors nor any committee thereof shall fail to recommend that the stockholders of the Company accept the Offer, tender their Shares to Purchaser pursuant to the Offer and, if applicable, adopt the Merger Agreement or withdraw, amend, modify or materially qualify the Company Board Recommendation in a manner adverse to Parent or Purchaser, or recommend a Takeover Proposal, or make any public statement inconsistent with expressly reaffirm the Company Board Recommendation, or resolve or agree to take any of the foregoing actions (any of the foregoing, a "Company Adverse Recommendation Change"). However, at any time prior to the closing of the Offer (but in no event after such time): • Subject to compliance with Section 6.04 of the Merger Agreement, prior to the closing of the Offer the Company's board of directors may, directly or indirectly through their Representatives, (i) participate in negotiations or discussions with any third party that has made (and not withdrawn) an unsolicited Takeover Proposal that the Company's board of directors believes in good faith, after consultation with outside legal counsel and the Company financial advisor, constitutes or is reasonably expected to result in 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 that constitutes an Acceptable Confidentiality Agreement (as defined in the Merger Agreement), (iii) following receipt of and on account of a Superior Proposal, make a Company Adverse Recommendation Change, (iv) terminate the Merger Agreement in accordance with the terms of Section 8.04(a) thereof, and/or (v) take any action that any court of competent jurisdiction orders the Company to take (which order remains unstayed), but in each case referred to in the foregoing clauses (i) through (v), only if the Company's board of directors determines in good faith, after consultation with outside legal counsel, that the failure to take such action would reasonably be expected to cause the Company's board of directors to be in breach of its fiduciary duties under applicable law. In addition, the Company's board of directors may, at any time, so long as it is not in breach of Section 6.04 of the Merger Agreement, withdraw, modify or amend the Company Board Recommendation and terminate the Merger Agreement if the Company's board of directors determines, after consultation with outside legal counsel, that the failure to effect any such withdrawal, modification or amendment would reasonably be expected to cause the Company's board of directors to be in breach of its fiduciary duties under applicable law. Nothing contained in the Merger Agreement shall prevent the Company's board of directors from disclosing to the Company's stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act with regard to a Takeover Proposal, if the Company determines, after consultation with outside legal counsel, that failure to disclose such position would constitute a violation of applicable law. • The Company's board of directors may make a Company Adverse Recommendation Change or enter into (or permit any subsidiary to enter into) an agreement with respect to a Takeover Proposal only if: (i) the Company promptly notifies Parent, in writing, at least 4 business days (the "Notice Period") before making a Company Adverse Recommendation Change or entering into (or causing a subsidiary to enter into) an agreement with respect to an agreement with respect to a Takeover Proposal, of its intention to take such action with respect to a Superior Proposal, which notice shall state that the Company has received a Takeover Proposal that the Company's board of directors intends to declare a Superior Proposal and that the Company's board of directors intends to make a Company Adverse Recommendation Change and/or the Company intends to enter into an agreement with respect to a Takeover Proposal; (ii) the Company attaches to such notice the material terms and conditions of such Superior Proposal and the identity of the third party making such Superior Proposal; (iii) the Company shall, during the Notice Period, negotiate with Parent in good faith to make such adjustments in the terms and conditions of the Merger Agreement so that such Takeover Proposal ceases to constitute a Superior Proposal (it being agreed that in the event that, after commencement of the Notice Period, there is any material revision to the terms of a Superior Proposal, including, any revision in price, the Notice Period shall be extended, if applicable, to ensure that at least 3 business days remains in the Notice Period subsequent to the time the Company notifies Parent of any such material revision); and (iv) the Company's board of directors determines in good faith, after consulting with outside legal counsel and the Company's financial advisor, that such Takeover Proposal continues to constitute a Superior Proposal after taking into account any adjustments made to the Merger Agreement by Parent during the Notice Period.
Appears in 1 contract
Samples: Offer to Purchase (Fidelity National Financial, Inc.)
No Solicitation Provisions. The HP Merger Agreement provides that at all times during the Company shallperiod commencing with the execution and delivery of the HP Merger Agreement and continuing until the earlier to occur of the termination of the HP Merger Agreement and the Effective Time, 3PAR and shall cause its subsidiaries towould not, cease immediately and cause to be terminated, and shall not nor would they authorize or knowingly permit any of its or their respective directors, officers, officers or other employees, advisors and controlled affiliates, or any investment bankers banker, attorney or other agent or representative (the collectively, "Representatives") to continue, any and all existing activities, discussions or negotiations, if any, with any third party conducted prior to the date of the Merger Agreement with respect to any Takeover Proposal until such time, if any, as the Merger Agreement is terminated in accordance with its terms. The Merger Agreement further provides that the Company shall not, and shall cause its subsidiaries not to, and shall not authorize or permit its and its subsidiaries' Representatives to, directly or indirectly, (i) solicit, initiateinitiate or induce the making, submission or announcement of, or knowingly encourage the submission of any inquiries, or the making of any proposal or offer, that constitutes a Takeover Proposal or that could reasonably be expected to lead to any Takeover Proposal or (i) conduct, engage in, or otherwise participate in any discussions or negotiations regarding a Takeover Proposal or otherwise cooperate with or knowingly assistencourage, facilitate or encourage assist, an Acquisition Proposal (as defined below), (ii) furnish to any such discussions person or negotiationsentity (other than HP, Purchaser or provide any designees of HP or Purchaser) any non-public information or data to any person relating to the Company 3PAR or any of its subsidiaries, or afford to any person or entity (other than HP, Purchaser or any designees of HP or Purchaser) access to the business, properties, assets, books or books, records or personnel other information, or to any personnel, of the Company 3PAR or any of its subsidiaries, (ii) approve in any such case that would reasonably be expected to induce the making, submission or recommendannouncement of, or publicly propose to approve encourage, facilitate or recommendassist, any Takeover Proposal, (iii) grant any waiver, amendment or release under any standstill or confidentiality agreement, or (iv) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or similar definitive agreement relating to any Takeover an Acquisition Proposal (each, a "Company Acquisition Agreement"). The Company shall notify Parent promptly (but in no event later than 48 hours) after it obtains knowledge of the receipt by the Company (or any of its Representatives) inquiries or the making of any Takeover Proposal any inquiry proposal that would reasonably be expected to lead to a Takeover an Acquisition Proposal, (iii) participate or engage in discussions or negotiations with any request for person or entity with respect to an Acquisition Proposal, (iv) approve, endorse or recommend an Acquisition Proposal, (v) enter into any letter of intent, memorandum of understanding or other contract contemplating or otherwise relating to an Acquisition Transaction or (vi) resolve or agree to do any of the foregoing. However, the HP Merger Agreement also provides that, prior to the Appointment Time, the 3PAR board of directors would be permitted to, directly or indirectly through 3PAR's Representatives, (i) participate or engage in discussions or negotiations with any person or entity that has made a bona fide, written and unsolicited Acquisition Proposal that the 3PAR Board of Directors determines in good faith (after consultation with its financial advisor and outside legal counsel) either constitutes or is reasonably likely to lead to a Superior Proposal (as defined below) and/or (ii) furnish to any person or entity that has made a bona fide, written and unsolicited Acquisition Proposal that the 3PAR Board of Directors determines in good faith (after consultation with its financial advisor and outside legal counsel) either constitutes or is reasonably likely to lead to a Superior Proposal any non-public information relating to the Company or any of its subsidiaries or for 3PAR and access to the business, properties, assets, books books, records or records of the Company or any of its subsidiaries by any third party. In such notice, the Company shall identify the third party making, and details of the material terms and conditions of, any such Takeover Proposal, indication or request. The Company shall keep Parent reasonably apprised of any material developments, discussions and negotiations with respect to any such Takeover Proposal, indication or request, including any material amendments or proposed amendments as to price and other material terms thereof. The Company shall promptly provide Parent with copies of any non-public information concerning the Company's businessinformation, present or future performance, financial condition or results of operations, provided to any third party to the extent such information has not been previously provided to Parent. As used in the Merger Agreementpersonnel, a "Takeover Proposal" means any written proposal or offer from any person (other than Parent and its subsidiaries, including Purchaser) relating to any (a) direct or indirect acquisition of assets of the Company or its subsidiaries (including any voting equity interests of subsidiaries, but excluding sales of assets in the ordinary course of business) equal to twenty percent (20%) or more of the Company's consolidated assets or to which twenty percent (20%) or more of the Company's net revenues or net income on a consolidated basis are attributable, (b) direct or indirect acquisition of twenty percent (20%) or more of the equity interests of the Company (by vote or value), (c) tender offer or exchange offer that if consummated would result in any person beneficially owning (within the meaning of Section 13(d) of the Exchange Act) twenty percent (20%) or more of the equity interests of the Company (by vote or value), (d) merger, consolidation, other business combination or similar transaction involving the Company 3PAR or any of its subsidiaries, in each case under this clause (ii) pursuant to a confidentiality agreement, the terms of which are no less favorable to 3PAR than those contained in the confidentiality agreement with HP (such person would own twenty percent confidentiality agreement need not contain a "standstill" or other similar provision that prohibits such third party from making any proposal to acquire 3PAR, acquire securities of 3PAR, nominate for election members of the 3PAR Board of Directors or take any other action), provided that in the case of any action taken pursuant to the preceding clauses (20%i) or more of the equity interests (by vote or valueii), consolidated assets, net revenues or net income of (A) the Company, taken as a whole, (e) liquidation or dissolution (or the adoption of a plan of liquidation or dissolution) of the Company, or (f) any combination of the foregoing. As used in the Merger Agreement, a "Superior Proposal" means a bona fide written Takeover Proposal not resulting from any violation or breach of the Merger Agreement (with all references to "20%" in the definition of Takeover Proposal deemed to be "a majority" for purposes of the definition of Superior Proposal) made by any person that the Company's 3PAR board of directors determines in good faith (after consultation with outside legal counsel and the Company's financial advisorcounsel) is more favorable from a financial point of view to the holders of Company's stockholders than the transactions contemplated by the Merger Agreement, taking into account (a) all financial considerations, (b) the identity of the third party making such Takeover Proposal, (c) the anticipated timing, conditions (including any financing condition or the reliability of any debt or equity funding commitments) and prospects for completion of such Takeover Proposal, (d) the other terms and conditions of such Takeover Proposal and the implications thereof on the Company, including relevant legal, regulatory approvals, equityholder litigation, termination fee and expense reimbursement provisions and other aspects of such Takeover Proposal deemed relevant by the Company's board of directors and (e) any revisions to the terms of the Merger Agreement and the Merger proposed by Parent during the Notice Period (as defined below). The Company's Recommendation. The Company's Board of Directors, among other things, has unanimously (i) determined that the terms of the Offer, the Merger and the other transactions contemplated by the Merger Agreement are fair to and in the best interests of the Company and its stockholders and declared the Merger Agreement advisable, (ii) approved the execution, delivery and performance of the Merger Agreement and the consummation of the transactions contemplated thereby, including the Offer and the Merger; and (iii) recommended that the stockholders of the Company accept the Offer, tender their Shares to the Purchaser pursuant to the Offer and, if applicable, adopt the Merger Agreement and the Merger (the "Company Board Recommendation"). Pursuant to the Merger Agreement, neither the Company's board of directors nor any committee thereof shall fail to recommend that the stockholders of the Company accept the Offer, tender their Shares to Purchaser pursuant to the Offer and, if applicable, adopt the Merger Agreement or withdraw, amend, modify or materially qualify the Company Board Recommendation in a manner adverse to Parent or Purchaser, or recommend a Takeover Proposal, or make any public statement inconsistent with the Company Board Recommendation, or resolve or agree to take any of the foregoing actions (any of the foregoing, a "Company Adverse Recommendation Change"). However, at any time prior to the closing of the Offer (but in no event after such time): • Subject to compliance with Section 6.04 of the Merger Agreement, prior to the closing of the Offer the Company's board of directors may, directly or indirectly through their Representatives, (i) participate in negotiations or discussions with any third party that has made (and not withdrawn) an unsolicited Takeover Proposal that the Company's board of directors believes in good faith, after consultation with outside legal counsel and the Company financial advisor, constitutes or is reasonably expected to result in 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 that constitutes an Acceptable Confidentiality Agreement (as defined in the Merger Agreement), (iii) following receipt of and on account of a Superior Proposal, make a Company Adverse Recommendation Change, (iv) terminate the Merger Agreement in accordance with the terms of Section 8.04(a) thereof, and/or (v) take any action that any court of competent jurisdiction orders the Company to take (which order remains unstayed), but in each case referred to in the foregoing clauses (i) through (v), only if the Company's board of directors determines in good faith, after consultation with outside legal counsel, that the failure to take such action would reasonably be expected to cause the Company's board of directors to be in a breach of its fiduciary duties to its stockholders under applicable Delaware law. In addition, the Company's board of directors may, at any time, so long as it is (B) 3PAR gives HP not in breach of Section 6.04 less than 24 hours prior written notice of the Merger Agreementidentity of such person or entity and the material terms of such Acquisition Proposal (unless such Acquisition Proposal is in written form, withdrawin which case 3PAR will give HP a copy thereof) and of the 3PAR's intention to participate or engage in discussions or negotiations with, or furnish non-public information to, such person or entity and (C) contemporaneously with furnishing any non-public information to such person or entity, 3PAR furnishes such non-public information to HP to the extent such information has not been previously furnished by 3PAR to HP. 3PAR will provide HP with a correct and complete copy of any confidentiality agreement entered into within 24 hours of the execution thereof. 3PAR will not terminate, waive, amend, release or modify any material provision of any confidentiality agreement to which it or amend any of its subsidiaries is a party with respect to any Acquisition Proposal, and will enforce the Company Board Recommendation material provisions of any such agreement and terminate the will provide HP with copies of any additional written documentation delivered to 3PAR or any of its subsidiaries or its or its subsidiaries' Representatives in connection therewith. The HP Merger Agreement also would require 3PAR to promptly (and in any event within 24 hours following receipt) notify HP orally and in writing if the Company's board 3PAR or any of directors determinesits subsidiaries or any of its or its subsidiaries' Representatives receives (i) any Acquisition Proposal, after consultation with outside legal counsel, (ii) any request for information that the failure to effect any such withdrawal, modification or amendment would reasonably be expected to cause lead to an Acquisition Proposal or (iii) any inquiry with respect to, or which would reasonably be expected to lead to, any Acquisition Proposal, such notice to include the Company's terms and conditions of such Acquisition Proposal, request or inquiry (including a copy, if made in writing, or a written summary, if made orally), and the identity of the person or entity or group making any such Acquisition Proposal, request or inquiry. The HP Merger Agreement would require 3PAR to keep HP informed on a current basis of the status and terms of any such Acquisition Proposal, request or inquiry, and any material developments related thereto. The HP Merger Agreement further contains a provision that the 3PAR board of directors would be permitted to be in breach of (i) take and disclose to its fiduciary duties under applicable law. Nothing contained in the Merger Agreement shall prevent the Company's board of directors from disclosing to the Company's stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) under the Exchange Act or complying with the provisions of Rule 14d-9 promulgated under the Exchange Act with regard and (ii) make any disclosure to a Takeover Proposal, if the Company determines, 3PAR stockholders that the 3PAR board of directors determines in good faith (after consultation with its outside legal counsel, ) that the failure to disclose make such position disclosure would constitute reasonably be expected to be a violation breach of its fiduciary duties to its stockholders under applicable Delaware law. • The Company's , provided that, in either such case, any such statement(s) or disclosures made by the 3PAR board of directors may make a Company Adverse Recommendation Change or enter into (or permit any subsidiary will be subject to enter into) an agreement with respect to a Takeover Proposal only if: (i) the Company promptly notifies Parent, in writing, at least 4 business days (the "Notice Period") before making a Company Adverse Recommendation Change or entering into (or causing a subsidiary to enter into) an agreement with respect to an agreement with respect to a Takeover Proposal, of its intention to take such action with respect to a Superior Proposal, which notice shall state that the Company has received a Takeover Proposal that the Company's board of directors intends to declare a Superior Proposal and that the Company's board of directors intends to make a Company Adverse Recommendation Change and/or the Company intends to enter into an agreement with respect to a Takeover Proposal; (ii) the Company attaches to such notice the material terms and conditions of such Superior Proposal and the identity of the third party making such Superior Proposal; (iii) the Company shall, during the Notice Period, negotiate with Parent in good faith to make such adjustments in the terms and conditions of the HP Merger Agreement so that such Takeover Proposal ceases to constitute a Superior Proposal (it being agreed that Agreement, including the termination provisions. As used in the event HP Merger Agreement, an "Acquisition Proposal" means any inquiry, offer or proposal (other than an inquiry, offer or proposal by HP or Purchaser) to engage in an Acquisition Transaction. As used in the HP Merger Agreement, an "Acquisition Transaction" means any transaction or series of related transactions (other than the transactions contemplated by the HP Merger Agreement) involving: (i) the purchase or other acquisition from 3PAR by any person or entity or "group" (as defined in or under Section 13(d) of the Exchange Act), directly or indirectly, of more than 20% of the Shares outstanding as of the consummation of such purchase or other acquisition, or any tender offer or exchange offer by any person or entity or "group" (as defined in or under Section 13(d) of the Exchange Act) that, after commencement if consummated in accordance with its terms, would result in such person or entity or "group" beneficially owning more than 20% of the Notice PeriodShares outstanding as of the consummation of such tender or exchange offer; (ii) a merger, there is any material revision consolidation, business combination or other similar transaction involving 3PAR pursuant to which the terms stockholders of a Superior Proposal, including, any revision in price, 3PAR immediately preceding such transaction hold less than 80% of the Notice Period shall be extended, if applicable, to ensure that at least 3 business days remains voting equity interests in the Notice Period subsequent to surviving or resulting entity of such transaction; (iii) a sale, transfer, acquisition or disposition of more than 20% of the time consolidated assets of 3PAR and its subsidiaries taken as a whole (measured by the Company notifies Parent of any such material revision); and fair market value thereof) or (iv) a liquidation, dissolution or other winding up of 3PAR and its subsidiaries, taken as a whole. As used in the Company's HP Merger Agreement, a "Superior Proposal" means any bona fide written Acquisition Proposal, not obtained in breach of the applicable provisions of the HP Merger Agreement, for an Acquisition Transaction on terms that the 3PAR board of directors determines have determined in good faith, faith (after consulting consultation with its financial advisor and outside legal counsel and the Company's financial advisorcounsel), that such Takeover Proposal continues to constitute a Superior Proposal after taking into account any adjustments made all relevant legal, financial and regulatory aspects of such Acquisition Proposal and the timing and likelihood of consummation of such Acquisition Transaction, would be more favorable to 3PAR stockholders (in their capacity as such) than the Merger Agreement by Parent during Offer and the Notice PeriodMerger. For purposes of the reference to an "Acquisition Proposal" in this definition of a "Superior Proposal," all references to "more than 20%" in the definition of "Acquisition Transaction" will be deemed to be references to "more than 85%," and the reference to "80%" in the definition of "Acquisition Transaction" will be deemed to be a reference to "15%."
Appears in 1 contract
No Solicitation Provisions. The Merger Agreement provides that until the Acceptance Date, or if earlier, the termination date of the Merger Agreement, the Company shall, and shall cause its subsidiaries to, cease immediately and cause to be terminatednot, and shall not authorize or knowingly permit any of its subsidiaries or any of its or their directors, officers, employees, investment bankers, attorneys, accountants or other advisors and investment bankers or representatives (the "collectively, “Representatives") ”), directly or indirectly, to continuesolicit, initiate, or knowingly or intentionally encourage or facilitate, any and all existing activitiesinquiries, discussions offers or negotiationsproposals that constitute, if anyor would reasonably be expected to lead to, with any third party conducted Acquisition Proposal, including amending or granting any waiver or release under any standstill or similar agreement, except that the Company may waive any prohibition contained in any such standstill or similar agreement entered into prior to the date of the Merger Agreement with respect to any Takeover Proposal until such timeAgreement, if anysuch agreement prohibits a party from proposing or disclosing to the Company’s board of directors any Acquisition Proposal to the extent failure to make such a waiver would be inconsistent with the fiduciary duties of the Company’s board of directors under applicable laws, as determined in good faith by the Company’s board of directors after consultation with outstide counsel. From the date of the Merger Agreement is terminated in accordance with its terms. The Merger Agreement further provides that to the Acceptance Date, the Company shall not, and shall cause its subsidiaries not to, and shall not authorize or permit its and its subsidiaries' Representatives toto enter into, directly or indirectly, solicit, initiate, or knowingly encourage the submission of any inquiries, or the making of any proposal or offer, that constitutes a Takeover Proposal or that could reasonably be expected to lead to any Takeover Proposal or (i) conduct, engage in, continue or otherwise participate in any discussions or negotiations regarding a Takeover Proposal or otherwise cooperate with or knowingly assistregarding, facilitate or encourage any such discussions or negotiations, or provide furnish any non-public information with respect to or data to assist or participate in any effort or attempt by any person relating to the with respect to, or otherwise knowingly or intentionally cooperate in any way with, any Acquisition Proposal. The Company or any shall, and shall cause each of its subsidiaries, or afford to any person access to subsidiaries and the business, properties, assets, books or records or personnel Representatives of the Company and its subsidiaries to immediately cease any discussions or negotiations with any of party (other than Intersil and its subsidiariesaffiliates) that may be ongoing with respect to an Acquisition Proposal. However, (ii) approve or recommendthe Merger Agreement also provides that, or publicly propose to approve or recommend, any Takeover Proposal, (iii) grant any waiver, amendment or release under any standstill or confidentiality agreement, or (iv) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or similar definitive agreement relating to any Takeover Proposal (each, a "Company Acquisition Agreement"). The Company shall notify Parent promptly (but in no event later than 48 hours) after it obtains knowledge of the receipt by the Company (or any of its Representatives) of any Takeover Proposal any inquiry that would reasonably be expected to lead to a Takeover Proposal, any request for non-public information relating prior 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. In such noticeAcceptance Date, the Company shall identify the third party makingmay, and details of the material terms and conditions of, any such Takeover Proposal, indication or request. The Company shall keep Parent reasonably apprised of any material developments, discussions and negotiations with respect to any such Takeover Proposal, indication or request, including any material amendments or proposed amendments as to price and other material terms thereof. The Company shall promptly provide Parent with copies of any non-public information concerning the Company's business, present or future performance, financial condition or results of operations, provided to any third party to the extent the failure to take such information has not been previously provided to Parent. As used in action would be inconsistent with the Merger Agreement, a "Takeover Proposal" means any written proposal or offer from any person (other than Parent and its subsidiaries, including Purchaser) relating to any (a) direct or indirect acquisition of assets of the Company or its subsidiaries (including any voting equity interests of subsidiaries, but excluding sales of assets in the ordinary course of business) equal to twenty percent (20%) or more fiduciary duties of the Company's consolidated assets or to which twenty percent (20%) or more ’s board of directors under applicable law, as determined in good faith by the Company's net revenues or net income on a consolidated basis are attributable’s board of directors after consultation with outside counsel, (b) direct or indirect acquisition of twenty percent (20%) or more of the equity interests of the Company (by vote or value)in response to an unsolicited, (c) tender offer or exchange offer that if consummated would result in any person beneficially owning (within the meaning of Section 13(d) of the Exchange Act) twenty percent (20%) or more of the equity interests of the Company (by vote or value), (d) merger, consolidation, other business combination or similar transaction involving the Company or any of its subsidiaries, pursuant to which such person would own twenty percent (20%) or more of the equity interests (by vote or value), consolidated assets, net revenues or net income of the Company, taken as a whole, (e) liquidation or dissolution (or the adoption of a plan of liquidation or dissolution) of the Company, or (f) any combination of the foregoing. As used in the Merger Agreement, a "Superior Proposal" means a bona fide written Takeover Acquisition Proposal not resulting from any violation made or breach received after the date of the Merger Agreement (with all references to "20%" in the definition of Takeover Proposal deemed to be "a majority" for purposes of the definition of Superior Proposal) made by any person that the Company's ’s board of directors determines in good faith (after consultation with outside legal counsel and the Company's its financial advisor) , if any, is more favorable reasonably likely to lead to a Superior Proposal and that did not result from a financial point of view to breach by the holders of Company's stockholders than the transactions contemplated Company of, or actions by its Representatives inconsistent with, the Merger Agreement, taking into account (a) all financial considerationsand subject to compliance therewith, (bx) the identity of the third party making such Takeover Proposal, (c) the anticipated timing, conditions (including any financing condition or the reliability of any debt or equity funding commitments) and prospects for completion of such Takeover Proposal, (d) the other terms and conditions of such Takeover Proposal and the implications thereof on the Company, including relevant legal, regulatory approvals, equityholder litigation, termination fee and expense reimbursement provisions and other aspects of such Takeover Proposal deemed relevant by the Company's board of directors and (e) any revisions furnish non-public information with respect to the terms of the Merger Agreement and the Merger proposed by Parent during the Notice Period (as defined below). The Company's Recommendation. The Company's Board of Directors, among other things, has unanimously (i) determined that the terms of the Offer, the Merger and the other transactions contemplated by the Merger Agreement are fair to and in the best interests of the Company and its stockholders subsidiaries to the person making such Acquisition Proposal and declared the Merger Agreement advisable, (ii) approved the execution, delivery and performance of the Merger Agreement and the consummation of the transactions contemplated thereby, including the Offer and the Merger; its Representatives and (iiiy) recommended that the stockholders of the Company accept the Offer, tender their Shares to the Purchaser pursuant to the Offer and, if applicable, adopt the Merger Agreement participate in discussions or negotiations with such person and the Merger (the "Company Board Recommendation"). Pursuant to the Merger Agreement, neither the Company's board of directors nor any committee thereof shall fail to recommend that the stockholders of the Company accept the Offer, tender their Shares to Purchaser pursuant to the Offer and, if applicable, adopt the Merger Agreement or withdraw, amend, modify or materially qualify the Company Board Recommendation in a manner adverse to Parent or Purchaser, or recommend a Takeover its Representatives regarding such Acquisition Proposal, if, in the case of either clause (x) or make any public statement inconsistent with the Company Board Recommendation, or resolve or agree to take any of the foregoing actions (any of the foregoing, a "Company Adverse Recommendation Change"y). However, at any time prior to the closing of the Offer (but in no event after such time): • Subject to compliance with Section 6.04 of the Merger Agreement, prior to the closing of the Offer the Company's board of directors may, directly or indirectly through their Representatives, (i) participate in negotiations or discussions with any third party that has made (and not withdrawn) an unsolicited Takeover Proposal that the Company's board of directors believes in good faith, after consultation with outside legal counsel and taking such action the Company financial advisor, constitutes or is reasonably expected to result in 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 that constitutes enters into an Acceptable Confidentiality Agreement (as defined in the Merger Agreement), (iii) following receipt of and on account of a Superior Proposal, make a Company Adverse Recommendation Change, (iv) terminate the Merger Agreement in accordance with the terms of Section 8.04(a) thereof, and/or (v) take any action that any court of competent jurisdiction orders the Company to take (which order remains unstayed), but in each case referred to in the foregoing clauses (i) through (v), only if the Company's board of directors determines in good faith, after consultation with outside legal counsel, that the failure to take such action would reasonably be expected to cause the Company's board of directors to be in breach of its fiduciary duties under applicable law. In addition, the Company's board of directors may, at any time, so long as it is not in breach of Section 6.04 of the Merger Agreement, withdraw, modify or amend the Company Board Recommendation and terminate the Merger Agreement if the Company's board of directors determines, after consultation with outside legal counsel, that the failure to effect any such withdrawal, modification or amendment would reasonably be expected to cause the Company's board of directors to be in breach of its fiduciary duties under applicable law. Nothing contained in the Merger Agreement shall prevent the Company's board of directors from disclosing to the Company's stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act with regard to a Takeover Proposal, if the Company determines, after consultation with outside legal counsel, that failure to disclose such position would constitute a violation of applicable law. • The Company's board of directors may make a Company Adverse Recommendation Change or enter into (or permit any subsidiary to enter into) an agreement with respect to a Takeover Proposal only if: (i) the Company promptly notifies Parent, in writing, at least 4 business days (the "Notice Period") before making a Company Adverse Recommendation Change or entering into (or causing a subsidiary to enter into) an agreement with respect to an agreement with respect to a Takeover Proposal, of its intention to take such action with respect to a Superior Proposal, which notice shall state that the Company has received a Takeover Proposal that the Company's board of directors intends to declare a Superior Proposal and that the Company's board of directors intends to make a Company Adverse Recommendation Change and/or the Company intends to enter into an agreement with respect to a Takeover Proposal; (ii) the Company attaches to such notice the material terms and conditions of such Superior Proposal and the identity of the third party making such Superior Proposal; (iii) the Company shall, during the Notice Period, negotiate with Parent in good faith to make such adjustments in the terms and conditions of the Merger Agreement so that such Takeover Proposal ceases to constitute a Superior Proposal (it being agreed that in the event that, after commencement of the Notice Period, there is any material revision to the terms of a Superior Proposal, including, any revision in price, the Notice Period shall be extended, if applicable, to ensure that at least 3 business days remains in the Notice Period subsequent to the time the Company notifies Parent of any such material revision); and (iv) the Company's board of directors determines in good faith, after consulting with outside legal counsel and the Company's financial advisor, that such Takeover Proposal continues to constitute a Superior Proposal after taking into account any adjustments made to the Merger Agreement by Parent during the Notice Period.
Appears in 1 contract
Samples: Offer to Purchase (Intersil Corp/De)
No Solicitation Provisions. The Merger Agreement provides that the Company shallEncysive and its subsidiaries, as well as their respective officers, directors, agents and shall cause its subsidiaries torepresentatives, cease immediately and cause to be terminated, and shall not authorize directly or knowingly permit indirectly, (i) solicit, initiate, or take any action to facilitate or encourage (including by way of its or their directors, officers, employees, advisors and investment bankers (furnishing non-public information) the "Representatives") to continuesubmission of, any and all existing activitiesTakeover Proposal, discussions (ii) approve or negotiationsrecommend any Takeover Proposal, if anyenter into any agreement, with any third party conducted prior to the date agreement-in- principle or letter of the Merger Agreement intent with respect to any Takeover Proposal until such time(or resolve to or publicly propose to do any of the foregoing), if anyor (iii) participate or engage in any discussions or negotiations regarding, as the Merger Agreement is terminated in accordance or furnish to any person any non-public information with its terms. The Merger Agreement further provides that the Company shall not, and shall cause its subsidiaries not respect to, and shall not authorize or permit its and its subsidiaries' Representatives to, directly or indirectly, solicit, initiate, or knowingly encourage the submission of take any inquiries, action to facilitate any inquiries or the making of any proposal that constitutes, or offer, that constitutes a Takeover Proposal or that could would reasonably be expected to lead to any Takeover Proposal. However, the Merger Agreement also provides that Encysive may refer any third party to Section 6.8 of the Merger Agreement and if in response to an unsolicited, bona fide written Takeover Proposal made after the 19 Table of Contents date of the Merger Agreement, the Encysive Board reasonably determines in good faith (after receiving advice from its financial advisor) that such Takeover Proposal constitutes or is reasonably likely to lead to, a Superior Proposal and with respect to which the Encysive Board determines in good faith, after consultation with and receiving advice from outside counsel, that the taking of such action is necessary in order for the Encysive Board to comply with its fiduciary duties to its stockholders under Delaware law, (i) conduct, engage in, or otherwise participate in any discussions or negotiations regarding a furnish information with respect to Encysive and its subsidiaries to the person making such Takeover Proposal or otherwise cooperate (and its representatives) that makes such Takeover Proposal but only pursuant to a confidentiality agreement in customary form that is no less favorable to Encysive than the confidentiality agreement with or knowingly assistPfizer (except that such confidentiality agreement shall contain additional provisions that expressly permit Encysive to comply with certain provisions of the Merger Agreement), facilitate or encourage provided that (A) it may not include any provision calling for an exclusive right to negotiate with Encysive, (2) Encysive provides Pfizer with not less than 24 hours notice of its intention to enter into such discussions or negotiations, or provide any confidentiality agreement and (3) Encysive advises Pfizer of all such non-public information or data delivered to any such person relating concurrently with its delivery to the Company or any of such person and concurrently with its subsidiaries, or afford delivery to any such person access Encysive delivers to the business, properties, assets, books or records or personnel of the Company or any of its subsidiariesPfizer all such information not previously provided to Pfizer, (ii) approve conduct discussions or recommend, or publicly propose to approve or recommend, any negotiations with such person regarding such Takeover Proposal, Proposal and (iii) grant any waiverto the extent permitted under the terms of the Merger Agreement, amendment or release under any standstill or confidentiality agreement, or (iv) enter into any a binding written agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or similar definitive agreement relating to any Takeover Proposal (each, concerning a "Company Acquisition Agreement")transaction that constitutes a Superior Proposal. The Company Merger Agreement contains a provision that Encysive shall notify Parent promptly (but provide Pfizer with oral and written notice, in no event later than 48 hours) 24 hours after it obtains knowledge of the receipt by the Company (receipt, if any proposal, offer, inquiry or other contact is received by, any information is requested from, or any of its Representatives) discussions or negotiations are sought to be initiated or continued with, Encysive with respect of any Takeover Proposal any inquiry that would reasonably be expected to lead to a Takeover Proposal, any request for non-public information relating to that indicates the Company or any of its subsidiaries or for access to the business, properties, assets, books or records identity of the Company person making such proposal, offer, inquiry or any of its subsidiaries by any third party. In such notice, other contact and the Company shall identify the third party making, and details of the material terms and conditions ofthereof (and shall include with such notice copies of any written materials received from or on behalf of such person relating thereto), any such Takeover Proposal, indication or request. The Company and thereafter shall keep Parent Pfizer reasonably apprised informed of any all material developmentsdevelopments affecting the status and terms of such proposals, discussions offers, inquiries or requests (and negotiations with respect to any such Takeover Proposal, indication or request, including any material amendments or proposed amendments as to price and other material terms thereof. The Company Encysive shall promptly provide Parent Pfizer with copies of any nonadditional written materials received therewith) and of the status of such discussions or negotiations. The Merger Agreement further contains a provision that the Encysive Board may comply with Rule 14d-9 or 14e-2(a) of the Exchange Act or Item 1012(a) of Regulation M-public information concerning A promulgated under the Company's businessExchange Act with regard to an Takeover Proposal if in their good faith judgment (after consultation with outside legal counsel), present if the taking of such position or future performancethe making of such disclosure is necessary for the Encysive Board to comply with its fiduciary duties under Delaware law. However, financial condition the Encysive Board shall not make an Company Adverse Recommendation Change (as described above) unless they determine in their good faith judgment, after consultation with and advice from outside legal counsel, that such withdrawal, modification, recommendation or results of operations, provided agreement is necessary to any third party comply with its fiduciary duties to the extent such information has not been previously provided to Parentits stockholders under Delaware law. As used in the Merger Agreement, a "“Takeover Proposal" ” means any written inquiry, proposal or offer from any person (other than Parent and its subsidiariesPfizer, including PurchaserPurchaser or any of their affiliates) or “group” (as defined in Section 13(d) of the Exchange Act) relating to any (aA) the direct or indirect acquisition (whether in a single transaction or a series of related transactions) of assets of the Company or its Encysive and Encysive’s subsidiaries (including any voting equity interests securities of Encysive’s subsidiaries, but excluding sales of assets in the ordinary course of business) equal to twenty percent (20%) % or more of the Company's Encysive’s consolidated assets or to which twenty percent (20%) % or more of the Company's net Encysive’s revenues or net income earnings on a consolidated basis are attributable, (bB) the direct or indirect acquisition (whether in a single transaction or a series of twenty percent (related transactions) of 20%) % or more of the any class of equity interests securities of the Company (by vote or value)Encysive, (cC) a tender offer or exchange offer that if consummated would result in any person beneficially owning or “group” (within the meaning of as defined in Section 13(d) of the Exchange Act) twenty percent (20%) beneficially owning 15% or more of the any class of equity interests securities of the Company Encysive or (by vote or value), (dD) a merger, consolidation, other share exchange, business combination combination, recapitalization, liquidation, dissolution or similar transaction involving the Company Encysive or any of its Encysive’s subsidiaries, pursuant to which such person would own twenty percent (20%) or more of in each case, other than the equity interests (transactions contemplated by vote or value)the Offer, consolidated assets, net revenues or net income of the Company, taken as a whole, (e) liquidation or dissolution (or Merger and the adoption of a plan of liquidation or dissolution) of other transactions contemplated by the Company, or (f) any combination of the foregoingMerger Agreement. As used in the Merger Agreement, a "“Superior Proposal" ” means a any bona fide written Takeover Proposal offer obtained after the date of the Merger Agreement and not resulting from any violation or in breach of the Merger Agreement (with all references to "20%" in the definition acquire, directly or indirectly, for consideration consisting of Takeover Proposal deemed to be "a majority" for purposes cash and/or securities, more than 50% of the definition outstanding voting equity 20 Table of Superior Proposal) made by any person Contents securities of the Encysive or all or substantially all of the assets of the Encysive and the Encysive’s subsidiaries on a consolidated basis, and is on terms that the Company's board of directors Encysive Board determines in its good faith judgment (after consultation with receipt of the advice of its financial advisor of nationally recognized reputation and outside legal counsel and the Company's financial advisorcounsel), taking into account all relevant factors, (A) would, if consummated, result in a transaction that is more favorable to the holders of Encysive common stock from a financial point of view to the holders of Company's stockholders than the transactions contemplated by the Merger Agreement, taking into account (a) all financial considerations, (b) the identity of the third party making such Takeover Proposal, (c) the anticipated timing, conditions (including any financing condition or the reliability of any debt or equity funding commitments) and prospects for completion of such Takeover Proposal, (d) the other terms and conditions of such Takeover Proposal and the implications thereof on the Company, including relevant legal, regulatory approvals, equityholder litigation, termination fee and expense reimbursement provisions and other aspects of such Takeover Proposal deemed relevant by the Company's board of directors and (e) any revisions to the terms of the Merger Agreement and the Merger proposed by Parent during the Notice Period (as defined below). The Company's Recommendation. The Company's Board of Directors, among other things, has unanimously (i) determined that the terms of the Offer, the Merger and the other transactions contemplated by the Merger Agreement are fair to and in the best interests of the Company and its stockholders and declared the Merger Agreement advisable, (ii) approved the execution, delivery and performance of the Merger Agreement and the consummation of the transactions contemplated thereby, including the Offer and the Merger; and (iii) recommended that the stockholders of the Company accept the Offer, tender their Shares to the Purchaser pursuant to the Offer and, if applicable, adopt the Merger Agreement and the Merger (the "Company Board Recommendation"). Pursuant to the Merger Agreement, neither the Company's board of directors nor any committee thereof shall fail to recommend that the stockholders of the Company accept the Offer, tender their Shares to Purchaser pursuant to the Offer and, if applicable, adopt the Merger Agreement or withdraw, amend, modify or materially qualify the Company Board Recommendation in a manner adverse to Parent or Purchaser, or recommend a Takeover Proposal, or make any public statement inconsistent with the Company Board Recommendation, or resolve or agree to take any of the foregoing actions (any of the foregoing, a "Company Adverse Recommendation Change"). However, at any time prior to the closing of the Offer (but in no event after such time): • Subject to compliance with Section 6.04 of the Merger Agreement, prior to the closing of the Offer the Company's board of directors may, directly or indirectly through their Representatives, (i) participate in negotiations or discussions with any third party that has made (and not withdrawn) an unsolicited Takeover Proposal that the Company's board of directors believes in good faith, after consultation with outside legal counsel and the Company financial advisor, constitutes or is reasonably expected to result in 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 that constitutes an Acceptable Confidentiality Agreement (as defined in the Merger Agreement), (iii) following receipt of and on account of a Superior Proposal, make a Company Adverse Recommendation Change, (iv) terminate the Merger Agreement in accordance with the terms of Section 8.04(a) thereof, and/or (v) take any action that any court of competent jurisdiction orders the Company proposal by Pfizer to take (which order remains unstayed), but in each case referred to in the foregoing clauses (i) through (v), only if the Company's board of directors determines in good faith, after consultation with outside legal counsel, that the failure to take such action would reasonably be expected to cause the Company's board of directors to be in breach of its fiduciary duties under applicable law. In addition, the Company's board of directors may, at any time, so long as it is not in breach of Section 6.04 of the Merger Agreement, withdraw, modify or amend the Company Board Recommendation and terminate the Merger Agreement if the Company's board of directors determines, after consultation with outside legal counsel, that the failure to effect any such withdrawal, modification or amendment would reasonably be expected to cause the Company's board of directors to be in breach of its fiduciary duties under applicable law. Nothing contained in the Merger Agreement shall prevent the Company's board of directors from disclosing to the Company's stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act with regard to a Takeover Proposal, if the Company determines, after consultation with outside legal counsel, that failure to disclose such position would constitute a violation of applicable law. • The Company's board of directors may make a Company Adverse Recommendation Change or enter into (or permit any subsidiary to enter into) an agreement with respect to a Takeover Proposal only if: (i) the Company promptly notifies Parent, in writing, at least 4 business days (the "Notice Period") before making a Company Adverse Recommendation Change or entering into (or causing a subsidiary to enter into) an agreement with respect to an agreement with respect to a Takeover Proposal, of its intention to take such action with respect to a Superior Proposal, which notice shall state that the Company has received a Takeover Proposal that the Company's board of directors intends to declare a Superior Proposal and that the Company's board of directors intends to make a Company Adverse Recommendation Change and/or the Company intends to enter into an agreement with respect to a Takeover Proposal; (ii) the Company attaches to such notice the material terms and conditions of such Superior Proposal and the identity of the third party making such Superior Proposal; (iii) the Company shall, during the Notice Period, negotiate with Parent in good faith to make such adjustments in the terms and conditions of the Merger Agreement so that such Takeover Proposal ceases to constitute a Superior Proposal (it being agreed that in the event that, after commencement of the Notice Period, there is any material revision to the terms of a Superior Proposal, including, any revision in price, the Notice Period shall be extended, if applicable, to ensure that at least 3 business days remains in the Notice Period subsequent to the time the Company notifies Parent of any such material revision); transactions) and (ivB) is reasonably capable of being completed on the Company's board of directors determines in good faith, after consulting with outside legal counsel and the Company's financial advisor, that such Takeover Proposal continues to constitute a Superior Proposal after taking into account any adjustments made to the Merger Agreement by Parent during the Notice Periodterms proposed.
Appears in 1 contract
Samples: Offer to Purchase (Pfizer Inc)
No Solicitation Provisions. The Merger Agreement provides that the Company shallArcSight will, and shall will cause its subsidiaries and the respective Representatives (as defined below) to, immediately cease immediately and cause to be terminated, and shall not authorize or knowingly permit any of its or their directors, officers, employees, advisors and investment bankers (the "Representatives") to continue, any and all existing activities, discussions or negotiations, if any, negotiations with any third party persons conducted prior to the date of the Merger Agreement heretofore with respect to any Takeover Acquisition Proposal until such time, if any, (as the Merger Agreement is terminated in accordance with its termsdefined below). The Merger Agreement further provides that at all times during the Company shall period commencing with the execution and delivery of the Merger Agreement and continuing until the earlier to occur of the termination of the Merger Agreement and the Appointment Time, ArcSight and its subsidiaries will not, and shall cause its subsidiaries not to, and shall not nor will they authorize or knowingly permit its and its subsidiaries' Representatives any of their respective directors, officers or other employees, controlled affiliates, or any investment banker, attorney or other advisor or representative retained by any of them (collectively, "Representatives") to, directly or indirectly, (i) solicit, initiate, knowingly encourage or knowingly encourage the submission of facilitate any inquiriesinquiry, proposal or offer with respect to, or the making of or completion of, any Acquisition Proposal, or any inquiry, proposal or offer, offer that constitutes a Takeover Proposal or that could is reasonably be expected likely to lead to any Takeover Proposal Acquisition Proposal, (ii) furnish to any person (other than HP, Purchaser or (iany of their designees) conduct, engage in, or otherwise participate in any discussions or negotiations regarding a Takeover Proposal or otherwise cooperate with or knowingly assist, facilitate or encourage any such discussions or negotiations, or provide any non-public information or data to any person relating to the Company ArcSight or any of its subsidiaries, or afford to any person access to the business, properties, assets, books or records or personnel of the Company or any of its subsidiaries, (ii) approve or recommend, or publicly propose to approve or recommend, any Takeover Proposal, (iii) grant any waiver, amendment or release under any standstill or confidentiality agreement, or (iv) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or similar definitive agreement relating to any Takeover Proposal (each, a "Company Acquisition Agreement"). The Company shall notify Parent promptly (but in no event later than 48 hours) after it obtains knowledge of the receipt by the Company (or any of its Representatives) of any Takeover Proposal any inquiry that would reasonably be expected to lead to a Takeover Proposal, 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 ArcSight or any of its subsidiaries by to any third party. In such noticeperson (other than HP, Purchaser or any of their designees), or take any other action with the Company shall identify the third party makingintention to induce or facilitate any Acquisition Proposal or any inquiry, and details of the material terms and conditions of, any such Takeover proposal or offer that is reasonably likely to lead to an Acquisition Proposal, indication (iii) participate or request. The Company shall keep Parent reasonably apprised of engage in discussions or negotiations with any material developments, discussions and negotiations person with respect to an Acquisition Proposal, (iv) approve, endorse or recommend an Acquisition Proposal, (v) enter into any letter of intent, memorandum of understanding or contract contemplating or otherwise relating to an Acquisition Transaction other than a confidentiality agreement permitted by clause (B) in the next paragraph or (vi) terminate, amend or waive any rights under any "standstill" or other similar agreement between ArcSight or any of its subsidiaries and any person (other than HP). However, prior to the Appointment Time, the ArcSight's board of directors may, directly or indirectly through its Representatives, subject to ArcSight's compliance with the provisions of Section 7.1 of the Merger Agreement, (A) engage or participate in discussions or negotiations with any person that has made (and not withdrawn) a bona fide Acquisition Proposal in writing that the ArcSight board of directors concludes in good faith (after consultation with a financial advisor of nationally recognized standing and ArcSight's outside legal counsel) constitutes or is reasonably likely to lead to a Superior Proposal (as defined below) and/or (B) furnish to any person that has made (and not withdrawn) a bona fide Acquisition Proposal in writing any information relating to ArcSight or any of its subsidiaries pursuant to a confidentiality agreement the terms of which are no less favorable to ArcSight than those contained in the Confidentiality Agreement (as defined below), provided that in the case of any action taken pursuant to the foregoing clauses (A) or (B), (1) none of ArcSight, any of its subsidiaries or any Representative of ArcSight or its subsidiaries shall have breached the terms of Section 7.1 of the Merger Agreement (other than breaches that are unintentional and not material in effect), (2) the ArcSight board of directors determines in good faith (after consultation with outside legal counsel) that the failure to take such action would reasonably be expected to result in a breach of its fiduciary duties to ArcSight stockholders under the DGCL, (3) at least one business day prior to engaging or participating in any such Takeover Proposaldiscussions or negotiations with, indication or requestfurnishing any information to, including any material amendments such person, ArcSight gives HP written notice of the identity of such person and a copy of such Acquisition Proposal and of ArcSight's intention to engage or proposed amendments as to price participate in discussions or negotiations with, or furnish information to, such person and other material terms thereof. The Company shall promptly provide Parent (4) contemporaneously with copies of furnishing any non-public information concerning the Company's businessto such person, present or future performance, financial condition or results of operations, provided ArcSight furnishes such non-public information to any third party HP (to the extent such information has not been previously furnished by ArcSight to HP). The Merger Agreement further provides that any violation of the restrictions set forth in the preceding paragraphs by any Representative (other than employees that are not officers of ArcSight or any of its subsidiaries, unless such employees are acting at the direction of ArcSight or with the actual knowledge of certain ArcSight officers) will be deemed to be a breach of the foregoing provisions by ArcSight. The Merger Agreement further provides that ArcSight will not enter into any letter of intent, memorandum of understanding or other similar document or any agreement (other than a confidentiality agreement as permitted by clause (B) in the preceding paragraph) contemplating or otherwise relating to an Acquisition Proposal unless and until the Merger Agreement is terminated and ArcSight has paid all amounts due to HP pursuant to the terms of the Merger Agreement, if any. The Merger Agreement also requires ArcSight to promptly (and in any event within one business day following receipt) advise HP in writing of (i) any Acquisition Proposal, (ii) any request for information that would reasonably be expected to lead to an Acquisition Proposal or (iii) any inquiry with respect to, or which would reasonably be expected to lead to, any Acquisition Proposal, such notice to include the terms and conditions of such Acquisition Proposal, request or inquiry (including a copy, if made in writing, or a written summary, if made orally), and the identity of the person or entity or group making any such Acquisition Proposal, request or inquiry. The Merger Agreement provides that ArcSight will keep HP informed on a reasonably current basis of the status and material details, terms and conditions (including all amendments or proposed amendments) of any such Acquisition Proposal, request or inquiry. In addition to the foregoing, ArcSight will provide HP with prior written notice of a meeting of the ArcSight board of directors at which the ArcSight board of directors is reasonably expected to consider an Acquisition Proposal, with HP receiving a similar amount of notice of such meeting as is provided to Parentthe members of the ArcSight board of directors. As used in the Merger Agreement, a an "Takeover Acquisition Proposal" means any written offer or proposal, or indication of interest in making an offer or proposal or offer from any person (other than Parent and its subsidiariesan offer, including proposal or indication of interest in making an offer or proposal by HP or Purchaser) relating to any Acquisition Transaction. As used in the Merger Agreement, an "Acquisition Transaction" means any transaction or series of related transactions (aother than the transactions contemplated by the Merger Agreement) direct involving: (i) any acquisition or indirect acquisition purchase from ArcSight or any of assets its subsidiaries by any person or "group" (as defined in or under Section 13(d) of the Company Exchange Act), directly or indirectly, of more than a fifteen percent (15%) interest in the total outstanding voting securities of ArcSight or any of its subsidiaries subsidiaries, (ii) any tender offer (including any voting equity interests of subsidiaries, but excluding sales of assets in the ordinary course of businessself-tender) equal to twenty percent (20%) or more of the Company's consolidated assets or to which twenty percent (20%) or more of the Company's net revenues or net income on a consolidated basis are attributable, (b) direct or indirect acquisition of twenty percent (20%) or more of the equity interests of the Company (by vote or value), (c) tender offer or exchange offer that if consummated would result in any person beneficially owning or "group" (within the meaning of as defined in or under Section 13(d) of the Exchange Act) twenty beneficially owning fifteen percent (2015%) or more of the equity interests total outstanding voting securities of the Company ArcSight or any of its subsidiaries (by vote or valuean "Acquisition Transaction Tender Offer"), ; (diii) any merger, consolidation, other recapitalization, business combination or other similar transaction involving the Company ArcSight or any of its subsidiaries, pursuant to which such person would own twenty percent (20%the business(es) of which, individually or in the aggregate, constitute more than 15% of the equity interests (by vote or value), consolidated assets, net revenues or net income assets of the CompanyArcSight and its subsidiaries, taken as a whole, pursuant to which the stockholders of ArcSight or such subsidiary immediately preceding such transaction hold less than eighty-five percent (e) liquidation or dissolution (or the adoption of a plan of liquidation or dissolution85%) of the Companyvoting equity interests in the surviving or resulting entity of such transaction; (iv) any sale, lease, exchange, transfer, license or disposition (other than (1) any lease in the ordinary course of business and (2) any sale, transfer, license or disposition of ArcSight products or inventory in the ordinary course of business) of more than fifteen percent (15%) of the assets of ArcSight and its subsidiaries, taken as a whole (measured by the lesser of book or fair market value thereof); or (fv) any combination of the foregoing. foregoing As used in the Merger Agreement, a "Superior Proposal" means a any bona fide written Takeover Acquisition Proposal not resulting from any violation or breach involving the acquisition of at least eighty percent (80%) of the Merger Agreement (outstanding voting securities of ArcSight with all references respect to "20%" in which the definition of Takeover Proposal deemed to be "a majority" for purposes of the definition of Superior Proposal) made by any person that the Company's ArcSight board of directors determines shall have determined in good faith (after consultation with a financial advisor of nationally recognized standing and its outside legal counsel counsel, and after taking into account, among other things, (i) the Company's financial advisorfinancial, legal and regulatory aspects of the Acquisition Transaction proposed in such Acquisition Proposal, including any financing contingencies, the timing and likelihood of consummation of such Acquisition Transaction and, to the extent the ArcSight board of directors deems it relevant, the payment of the Termination Fee (as defined below), and (ii) is any binding (on HP) counter-offer or binding (on HP) offer made by HP pursuant hereto), that the proposed Acquisition Transaction would be more favorable to the holders of Shares (in their capacity as such), from a financial point of view to the holders of Company's stockholders view, than the transactions contemplated by the Merger this Agreement, taking into account (a) all financial considerations, (b) the identity of the third party making such Takeover Proposal, (c) the anticipated timing, conditions (including any financing condition or the reliability of any debt or equity funding commitments) and prospects for completion of such Takeover Proposal, (d) the other terms and conditions of such Takeover Proposal and the implications thereof on the Company, including relevant legal, regulatory approvals, equityholder litigation, termination fee and expense reimbursement provisions and other aspects of such Takeover Proposal deemed relevant by the Company's board of directors and (e) any revisions to the terms of the Merger Agreement and the Merger proposed by Parent during the Notice Period (as defined below). The Company's Recommendation. The Company's Board of Directors, among other things, has unanimously (i) determined that the terms of the Offer, the Merger and the other transactions contemplated by the Merger Agreement are fair to and in the best interests of the Company and its stockholders and declared the Merger Agreement advisable, (ii) approved the execution, delivery and performance of the Merger Agreement and the consummation of the transactions contemplated thereby, including the Offer and the Merger; and (iii) recommended that the stockholders of the Company accept the Offer, tender their Shares to the Purchaser pursuant to the Offer and, if applicable, adopt the Merger Agreement and the Merger (the "Company Board Recommendation"). Pursuant to the Merger Agreement, neither the Company's board of directors nor any committee thereof shall fail to recommend that the stockholders of the Company accept the Offer, tender their Shares to Purchaser pursuant to the Offer and, if applicable, adopt the Merger Agreement or withdraw, amend, modify or materially qualify the Company Board Recommendation in a manner adverse to Parent or Purchaser, or recommend a Takeover Proposal, or make any public statement inconsistent with the Company Board Recommendation, or resolve or agree to take any of the foregoing actions (any of the foregoing, a "Company Adverse Recommendation Change"). However, at any time prior to the closing of the Offer (but in no event after such time): • Subject to compliance with Section 6.04 of the Merger Agreement, prior to the closing of the Offer the Company's board of directors may, directly or indirectly through their Representatives, (i) participate in negotiations or discussions with any third party that has made (and not withdrawn) an unsolicited Takeover Proposal that the Company's board of directors believes in good faith, after consultation with outside legal counsel and the Company financial advisor, constitutes or is reasonably expected to result in a Superior Proposal, (ii) thereafter furnish to such third party non-public information relating to the Company or any of its subsidiaries binding (on HP) counter-offer or binding (on HP) offer made by HP pursuant to an executed confidentiality agreement that constitutes an Acceptable Confidentiality Agreement (as defined in the Merger Agreementhereto), (iii) following receipt of and on account of a Superior Proposal, make a Company Adverse Recommendation Change, (iv) terminate the Merger Agreement in accordance with the terms of Section 8.04(a) thereof, and/or (v) take any action that any court of competent jurisdiction orders the Company to take (which order remains unstayed), but in each case referred to in the foregoing clauses (i) through (v), only if the Company's board of directors determines in good faith, after consultation with outside legal counsel, that the failure to take such action would reasonably be expected to cause the Company's board of directors to be in breach of its fiduciary duties under applicable law. In addition, the Company's board of directors may, at any time, so long as it is not in breach of Section 6.04 of the Merger Agreement, withdraw, modify or amend the Company Board Recommendation and terminate the Merger Agreement if the Company's board of directors determines, after consultation with outside legal counsel, that the failure to effect any such withdrawal, modification or amendment would reasonably be expected to cause the Company's board of directors to be in breach of its fiduciary duties under applicable law. Nothing contained in the Merger Agreement shall prevent the Company's board of directors from disclosing to the Company's stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act with regard to a Takeover Proposal, if the Company determines, after consultation with outside legal counsel, that failure to disclose such position would constitute a violation of applicable law. • The Company's board of directors may make a Company Adverse Recommendation Change or enter into (or permit any subsidiary to enter into) an agreement with respect to a Takeover Proposal only if: (i) the Company promptly notifies Parent, in writing, at least 4 business days (the "Notice Period") before making a Company Adverse Recommendation Change or entering into (or causing a subsidiary to enter into) an agreement with respect to an agreement with respect to a Takeover Proposal, of its intention to take such action with respect to a Superior Proposal, which notice shall state that the Company has received a Takeover Proposal that the Company's board of directors intends to declare a Superior Proposal and that the Company's board of directors intends to make a Company Adverse Recommendation Change and/or the Company intends to enter into an agreement with respect to a Takeover Proposal; (ii) the Company attaches to such notice the material terms and conditions of such Superior Proposal and the identity of the third party making such Superior Proposal; (iii) the Company shall, during the Notice Period, negotiate with Parent in good faith to make such adjustments in the terms and conditions of the Merger Agreement so that such Takeover Proposal ceases to constitute a Superior Proposal (it being agreed that in the event that, after commencement of the Notice Period, there is any material revision to the terms of a Superior Proposal, including, any revision in price, the Notice Period shall be extended, if applicable, to ensure that at least 3 business days remains in the Notice Period subsequent to the time the Company notifies Parent of any such material revision); and (iv) the Company's board of directors determines in good faith, after consulting with outside legal counsel and the Company's financial advisor, that such Takeover Proposal continues to constitute a Superior Proposal after taking into account any adjustments made to the Merger Agreement by Parent during the Notice Period.
Appears in 1 contract
No Solicitation Provisions. The Merger Agreement contains provisions prohibiting each of the Company and its subsidiaries, as well as their respective directors, officers, employees, accountants, consultants, legal counsel, advisors, agents and other representatives, from directly or indirectly: • soliciting, initiating, seeking or knowingly encouraging or facilitating any Acquisition Proposal or taking any action to solicit, initiate, seek or knowingly encourage or facilitate any inquiry, expression of interest, proposal or offer that constitutes or could reasonably be expected to lead to an Acquisition Proposal; • entering into, participating or engaging in, maintaining or continuing any discussions or negotiations relating to, any Acquisition Proposal with any Person other than Parent or the Purchaser; • furnishing to any Person other than Parent or the Purchaser any non-public information that the Company believes or should reasonably know could be used for the purposes of formulating or furthering any Acquisition Proposal; Table of Contents • approving, endorsing, recommending, executing or entering into any agreement, letter of intent or contract with respect to an Acquisition Proposal or otherwise relating to or that is intended to or would reasonably be expected to lead to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement as defined in the Merger Agreement) or entering into any agreement, arrangement, or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transactions contemplated by the Merger Agreement; • submitting any Acquisition Proposal or any matter related thereto to the vote of the stockholders of the Company; • waiving, terminating, modifying, failing to enforce or releasing any person other than Parent or the Purchaser from any provision of or granting any permission, waiver or request under any “standstill,” confidentiality or similar agreement or obligation; or • proposing, resolving or agreeing to do any of the foregoing. The Merger Agreement provides that the Company shallis required to, and shall is required to cause its subsidiaries and instruct its representatives to, immediately cease immediately and cause to be terminated, and shall not authorize or knowingly permit any of its or their directors, officers, employees, advisors and investment bankers (the "Representatives") to continue, terminated any and all existing activities, activities discussions or negotiations, if any, negotiations with any third party person conducted on or prior to the date of the Merger Agreement with respect to any Takeover Acquisition Proposal until such time, if anyand, as promptly as practicable after the date of the Merger Agreement, request the prompt return or destruction of all confidential information previously furnished to such person within the last 12 months for the purpose of evaluating a possible Acquisition Proposal. Notwithstanding anything in the Merger Agreement is terminated to the contrary, at any time prior to the Purchaser accepting for payment, and paying for, all Shares validly tendered prior to the Expiration Date (the “Acceptance Time”), the Company may, and may permit and authorize its subsidiaries and its and its subsidiaries’ representatives to, in accordance response to a bona fide written unsolicited Acquisition Proposal that the Company Board reasonably determines in good faith, after consultation with an independent financial advisor and outside counsel, constitutes or could reasonably be expected to result in a Superior Proposal (as defined in this Section 11 below), and after consultation with its termsoutside legal counsel, the Company Board reasonably determines in good faith that the failure to take such actions would reasonably be expected to breach its fiduciary duties to the stockholders of the Company under Delaware law, then the Company may take the following actions: (A) furnish information with respect to the Company and any of its subsidiaries to the person making such Acquisition Proposal and (B) participate in discussions or negotiations with the person making such Acquisition Proposal regarding such Acquisition Proposal, and which Acquisition Proposal did not otherwise result from a breach of the no solicitation provisions of the Merger Agreement, (1) furnish information with respect to the Company and its subsidiaries to the person making such Acquisition Proposal (and its advisors and representatives) pursuant to a confidentiality agreement that is not materially less restrictive than the confidentiality agreement and the standstill agreement between Parent and the Company and so long as all such information had been provided, or is concurrently provided, to Parent and (2) participate in discussions or negotiations with the person making such Acquisition Proposal (and its advisors and representatives) regarding such Acquisition Proposal. The Merger Agreement further also provides that the Company shall notwill, promptly and shall cause its subsidiaries not toin any event within 24 hours of learning or receiving the relevant information, and shall not authorize or permit its and its subsidiaries' Representatives to, directly or indirectly, solicit, initiate, or knowingly encourage the submission provide Parent with: • a reasonably detailed written description of any inquiriesinquiry, or the making expression of any interest, proposal or offer, that constitutes a Takeover offer relating to an Acquisition Proposal (including any modification thereto) or any request for information that could reasonably be expected to lead to any Takeover Proposal or (i) conduct, engage in, or otherwise participate in any discussions or negotiations regarding a Takeover Proposal or otherwise cooperate with or knowingly assist, facilitate or encourage any such discussions or negotiations, or provide any non-public information or data to any person relating to the Company or any of its subsidiaries, or afford to any person access to the business, properties, assets, books or records or personnel of the Company or any of its subsidiaries, (ii) approve or recommend, or publicly propose to approve or recommend, any Takeover an Acquisition Proposal, (iii) grant any waiver, amendment or release under any standstill or confidentiality agreement, or (iv) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or similar definitive agreement relating to any Takeover Proposal (each, a "Company Acquisition Agreement"). The Company shall notify Parent promptly (but in no event later than 48 hours) after it obtains knowledge of the receipt by the Company (or any of its Representatives) of any Takeover Proposal any inquiry that would reasonably be expected to lead to a Takeover Proposal, 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. In such notice, the Company shall identify the third party making, and details of the material terms and conditions of, any such Takeover Proposal, indication or request. The Company shall keep Parent reasonably apprised of any material developments, discussions and negotiations with respect to any such Takeover Proposal, indication or request, including any material amendments or proposed amendments as to price and other material terms thereof. The Company shall promptly provide Parent with copies of any non-public information concerning the Company's business, present or future performance, financial condition or results of operations, provided to any third party to the extent such information has not been previously provided to Parent. As used in the Merger Agreement, a "Takeover Proposal" means any written proposal or offer from any person (other than Parent and its subsidiaries, including Purchaser) relating to any (a) direct or indirect acquisition of assets of the Company or its subsidiaries (including any voting equity interests of subsidiaries, but excluding sales of assets in the ordinary course of business) equal to twenty percent (20%) or more of the Company's consolidated assets or to which twenty percent (20%) or more of the Company's net revenues or net income on a consolidated basis are attributable, (b) direct or indirect acquisition of twenty percent (20%) or more of the equity interests of the Company (by vote or value), (c) tender offer or exchange offer that if consummated would result in any person beneficially owning (within the meaning of Section 13(d) of the Exchange Act) twenty percent (20%) or more of the equity interests of the Company (by vote or value), (d) merger, consolidation, other business combination or similar transaction involving the Company or any of its subsidiaries, pursuant to which such person would own twenty percent (20%) or more of the equity interests (by vote or value), consolidated assets, net revenues or net income of the Company, taken as a whole, (e) liquidation or dissolution (or the adoption of a plan of liquidation or dissolution) of the Company, or (f) any combination of the foregoing. As used in the Merger Agreement, a "Superior Proposal" means a bona fide written Takeover Proposal not resulting from any violation or breach of the Merger Agreement (with all references to "20%" in the definition of Takeover Proposal deemed to be "a majority" for purposes of the definition of Superior Proposal) made by any person that the Company's board of directors determines in good faith (after consultation with outside legal counsel and the Company's financial advisor) is more favorable from a financial point of view to the holders of Company's stockholders than the transactions contemplated by the Merger Agreement, taking into account (a) all financial considerations, (b) the identity of the third party making person from which such Takeover Proposalinquiry, (c) the anticipated timingexpression of interest, conditions proposal, offer or request for information was received; and • a complete, unredacted copy of each proposed or final written agreement or written document (including financing commitments and any financing condition related letters or the reliability documents) or material written communication and a reasonably detailed summary of any debt or equity funding commitments) and prospects for completion of such Takeover Proposal, (d) the other terms and conditions of such Takeover Proposal and the implications thereof on the Company, including relevant legal, regulatory approvals, equityholder litigation, termination fee and expense reimbursement provisions and other aspects of such Takeover Proposal deemed relevant by the Company's board of directors and (e) any revisions to the terms of the Merger Agreement and the Merger proposed by Parent during the Notice Period (as defined below). The Company's Recommendation. The Company's Board of Directors, among other things, has unanimously (i) determined that the terms of the Offer, the Merger and the other transactions contemplated by the Merger Agreement are fair to and in the best interests of the Company and its stockholders and declared the Merger Agreement advisable, (ii) approved the execution, delivery and performance of the Merger Agreement and the consummation of the transactions contemplated thereby, including the Offer and the Merger; and (iii) recommended that the stockholders of the Company accept the Offer, tender their Shares to the Purchaser pursuant to the Offer and, if applicable, adopt the Merger Agreement and the Merger (the "Company Board Recommendation"). Pursuant to the Merger Agreement, neither the Company's board of directors nor any committee thereof shall fail to recommend that the stockholders of the Company accept the Offer, tender their Shares to Purchaser pursuant to the Offer and, if applicable, adopt the Merger Agreement or withdraw, amend, modify or materially qualify the Company Board Recommendation in a manner adverse to Parent or Purchaser, or recommend a Takeover Proposal, or make any public statement inconsistent with the Company Board Recommendation, or resolve or agree to take any of the foregoing actions (any of the foregoing, a "Company Adverse Recommendation Change"). However, at any time prior to the closing of the Offer (but in no event after such time): • Subject to compliance with Section 6.04 of the Merger Agreement, prior to the closing of the Offer the Company's board of directors may, directly or indirectly through their Representatives, (i) participate in negotiations or discussions with any third party that has made (and not withdrawn) an unsolicited Takeover Proposal that the Company's board of directors believes in good faith, after consultation with outside legal counsel and the Company financial advisor, constitutes or is reasonably expected to result in a Superior Proposal, (ii) thereafter furnish each material oral communication relating to such third party non-public information relating to the Company or any of its subsidiaries pursuant to an executed confidentiality agreement that constitutes an Acceptable Confidentiality Agreement (as defined in the Merger Agreement), (iii) following receipt of and on account of a Superior Acquisition Proposal, make a Company Adverse Recommendation Change, (iv) terminate the Merger Agreement in accordance with the terms of Section 8.04(a) thereof, and/or (v) take any action that any court of competent jurisdiction orders the Company to take (which order remains unstayed), but in each case referred to in the foregoing clauses (i) through (v), only if the Company's board of directors determines in good faith, after consultation with outside legal counsel, that the failure to take such action would reasonably be expected to cause the Company's board of directors to be in breach of its fiduciary duties under applicable law. In addition, the Company's board of directors may, at any time, so long as it is not in breach of Section 6.04 of the Merger Agreement, withdraw, modify or amend the Company Board Recommendation and terminate the Merger Agreement if the Company's board of directors determines, after consultation with outside legal counsel, that the failure to effect any such withdrawal, modification or amendment would reasonably be expected to cause the Company's board of directors to be in breach of its fiduciary duties under applicable law. Nothing contained in the Merger Agreement shall prevent the Company's board of directors from disclosing to the Company's stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act with regard to a Takeover Proposal, if the Company determines, after consultation with outside legal counsel, that failure to disclose such position would constitute a violation of applicable law. • The Company's board of directors may make a Company Adverse Recommendation Change or enter into (or permit any subsidiary to enter into) an agreement with respect to a Takeover Proposal only if: (i) the Company promptly notifies Parent, in writing, at least 4 business days (the "Notice Period") before making a Company Adverse Recommendation Change or entering into (or causing a subsidiary to enter into) an agreement with respect to an agreement with respect to a Takeover Proposal, of its intention to take such action with respect to a Superior Proposal, which notice shall state that the Company has received a Takeover Proposal that the Company's board of directors intends to declare a Superior Proposal and that the Company's board of directors intends to make a Company Adverse Recommendation Change and/or the Company intends to enter into an agreement with respect to a Takeover Proposal; (ii) the Company attaches to such notice the material terms and conditions of such Superior Proposal and the identity of the third party making such Superior Proposal; (iii) the Company shall, during the Notice Period, negotiate with Parent in good faith to make such adjustments in the terms and conditions of the Merger Agreement so that such Takeover Proposal ceases to constitute a Superior Proposal (it being agreed that in the event that, after commencement of the Notice Period, there is any material revision to the terms of a Superior Proposal, including, any revision in price, the Notice Period shall be extended, if applicable, to ensure that at least 3 business days remains in the Notice Period subsequent to the time the Company notifies Parent of any such material revision); and (iv) the Company's board of directors determines in good faith, after consulting with outside legal counsel and the Company's financial advisor, that such Takeover Proposal continues to constitute a Superior Proposal after taking into account any adjustments made to the Merger Agreement by Parent during the Notice Period.
Appears in 1 contract
Samples: Offer to Purchase (Bgi-Shenzhen)
No Solicitation Provisions. The Merger Agreement provides that during the Company period beginning on the date of the Merger Agreement and continuing until 11:59 p.m. (New York time) on the date that is 45 days after the public announcement of the transaction (the “Solicitation Period End Date”), GenTek may (i) solicit, initiate or encourage any Acquisition Proposal (as defined below) or any inquiries, proposals or offers that may lead to an Acquisition Proposal and (ii), subject to compliance with certain restrictions, participate in discussions or negotiations regarding, furnish to any person information with respect to, and take any other action to facilitate any inquiries or the making of any proposal that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal. During this period, prior to providing material non-public information to any third party, XxxXxx must execute a confidentiality agreement with provisions no more favorable to such person than those confidentiality provision contained in the confidentiality agreement with Parent. GenTek also must promptly provide to Parent any material non-public information concerning GenTek or its subsidiaries that was not previously provided to Parent. The Merger Agreement provides that, as of the Solicitation Period End Date, GenTek shall, and shall cause its subsidiaries to, cease immediately and cause to be terminated, and shall not authorize or knowingly permit any of its or direct their respective directors, officers, employees, advisors investment bankers, financial advisors, attorneys, accountants, agents and investment bankers other representatives (the "collectively, “Representatives"”) to continue(i) immediately cease any solicitation, any and all existing activitiesencouragement, 20 Table of Contents discussions or negotiations, if any, negotiations with any third parties that may be ongoing with respect to an Acquisition Proposal, (ii) request the prompt return or destruction of all confidential information previously furnished to any person in respect of an Acquisition Proposal and (iii) not terminate, waive, amend, release or modify any provision of any confidentiality or standstill agreement to which it or any of its affiliates or representatives is a party conducted prior to the date of the Merger Agreement with respect to any Takeover Acquisition Proposal until and shall enforce the provisions of any such time, if any, as the Merger Agreement is terminated in accordance with its termsagreement. The Merger Agreement further also provides that during the Company period beginning on the Solicitation Period End Date and continuing until the Effective Time or, if earlier, the termination of the Merger Agreement, GenTek shall not, and nor shall cause it permit any of its subsidiaries not to, and nor shall not it authorize or permit its and its subsidiaries' Representatives any Representative to, directly or indirectly, (i) solicit, initiateinitiate or knowingly facilitate or knowingly encourage (including by way of furnishing information), or knowingly encourage the submission of take any inquiriesother action designed or reasonably likely to facilitate or encourage, any inquiry with respect to, or the making of making, submission or announcement of, any proposal that constitutes, or offer, that constitutes a Takeover Proposal or that could may reasonably be expected to lead to to, any Takeover Proposal or Acquisition Proposal, (iii) conduct, engage in, or otherwise participate in any discussions or negotiations (including by way of furnishing information) regarding a Takeover Proposal or otherwise cooperate with or knowingly assist, facilitate or encourage any such discussions or negotiationsan Acquisition Proposal, or provide furnish any non-public information or data to any person relating to the Company or any of its subsidiaries, or afford to any person access to the business, its properties, assetsbooks, books or records or personnel of the Company or any of its subsidiaries, (ii) approve or recommend, or publicly propose to approve or recommendto, any Takeover person that has made or, to the Company’s knowledge, is considering making an Acquisition Proposal, (iii) grant any waivermake a Change of Recommendation (as defined below), amendment or release under any standstill or confidentiality agreement, or (iv) enter into any letter of intent or agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership principle or any agreement or similar definitive agreement relating to providing for any Takeover Acquisition Proposal (each, a "Company Acquisition Agreement"). The Company shall notify Parent promptly (but in no event later than 48 hours) after it obtains knowledge of the receipt except for confidentiality agreements otherwise permitted by the Company (or any of its Representatives) of any Takeover Proposal any inquiry that would reasonably be expected to lead to a Takeover Proposal, 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. In such notice, the Company shall identify the third party making, and details of the material terms and conditions of, any such Takeover Proposal, indication or request. The Company shall keep Parent reasonably apprised of any material developments, discussions and negotiations with respect to any such Takeover Proposal, indication or request, including any material amendments or proposed amendments as to price and other material terms thereof. The Company shall promptly provide Parent with copies of any non-public information concerning the Company's business, present or future performance, financial condition or results of operations, provided to any third party to the extent such information has not been previously provided to Parent. As used in the Merger Agreement) or (v) resolve, a "Takeover Proposal" means any written proposal propose or offer from any person (other than Parent and its subsidiaries, including Purchaser) relating agree to any (a) direct or indirect acquisition of assets of the Company or its subsidiaries (including any voting equity interests of subsidiaries, but excluding sales of assets in the ordinary course of business) equal to twenty percent (20%) or more of the Company's consolidated assets or to which twenty percent (20%) or more of the Company's net revenues or net income on a consolidated basis are attributable, (b) direct or indirect acquisition of twenty percent (20%) or more of the equity interests of the Company (by vote or value), (c) tender offer or exchange offer that if consummated would result in any person beneficially owning (within the meaning of Section 13(d) of the Exchange Act) twenty percent (20%) or more of the equity interests of the Company (by vote or value), (d) merger, consolidation, other business combination or similar transaction involving the Company or any of its subsidiaries, pursuant to which such person would own twenty percent (20%) or more of the equity interests (by vote or value), consolidated assets, net revenues or net income of the Company, taken as a whole, (e) liquidation or dissolution (or the adoption of a plan of liquidation or dissolution) of the Company, or (f) any combination of the foregoing. As used in The Merger Agreement provides that any time from the Merger Agreement, a "Superior Proposal" means a bona fide written Takeover Proposal not resulting from any violation or breach Solicitation Period End Date and continuing until the earlier of the Merger Agreement (with all references to "20%" in the definition of Takeover Proposal deemed to be "a majority" for purposes of the definition of Superior Proposal) made by any person that the Company's board of directors determines in good faith (after consultation with outside legal counsel Acceptance Date and the Company's financial advisor) is more favorable from a financial point of view to the holders of Company's stockholders than the transactions contemplated by the Merger Agreement, taking into account (a) all financial considerations, (b) the identity of the third party making such Takeover Proposal, (c) the anticipated timing, conditions (including any financing condition or the reliability of any debt or equity funding commitments) and prospects for completion of such Takeover Proposal, (d) the other terms and conditions of such Takeover Proposal and the implications thereof on the Company, including relevant legal, regulatory approvals, equityholder litigation, termination fee and expense reimbursement provisions and other aspects of such Takeover Proposal deemed relevant by the Company's board of directors and (e) any revisions to the terms of the Merger Agreement and the Merger proposed by Parent during the Notice Period (as defined below). The Company's Recommendation. The Company's Board of Directors, among other things, has unanimously (i) determined that the terms of the Offer, the Merger and the other transactions contemplated by the Merger Agreement are fair to and in the best interests of the Company and its stockholders and declared the Merger Agreement advisable, (ii) approved the execution, delivery and performance of the Merger Agreement and the consummation of the transactions contemplated thereby, including the Offer and the Merger; and (iii) recommended that the stockholders of the Company accept the Offer, tender their Shares to the Purchaser pursuant to the Offer and, if applicable, adopt the Merger Agreement and the Merger (the "Company Board Recommendation"). Pursuant to the Merger Agreement, neither the Company's board of directors nor any committee thereof shall fail to recommend that the stockholders of the Company accept the Offer, tender their Shares to Purchaser pursuant to the Offer and, if applicable, adopt the Merger Agreement or withdraw, amend, modify or materially qualify the Company Board Recommendation in a manner adverse to Parent or Purchaser, or recommend a Takeover Proposal, or make any public statement inconsistent with the Company Board Recommendation, or resolve or agree to take any of the foregoing actions (any of the foregoing, a "Company Adverse Recommendation Change"). However, at any time prior to the closing of the Offer (but in no event after such time): • Subject to compliance with Section 6.04 of the Merger Agreement, prior subject to GenTek’s compliance with the closing of the Offer the Company's board of directors maynon-solicitation provisions, directly or indirectly through their Representatives, if GenTek receives an unsolicited bona fide written Acquisition Proposal (i) participate in negotiations which (a) constitutes a Superior Proposal (as defined below) or discussions with any third party that has made (and not withdrawnb) an unsolicited Takeover Proposal that the Company's board of directors believes which GenTek’s Board determines in good faith, after consultation with outside legal counsel and the Company financial advisor, constitutes or is faith could reasonably be expected to result in a Superior Proposal, Proposal and (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 that constitutes an Acceptable Confidentiality Agreement (as defined in the Merger Agreement), (iii) following receipt of and on account of a Superior Proposal, make a Company Adverse Recommendation Change, (iv) terminate the Merger Agreement in accordance with the terms of Section 8.04(a) thereof, and/or (v) take any action that any court of competent jurisdiction orders the Company to take (which order remains unstayed), but in each case referred to in the foregoing clauses (i) through (v), only if the Company's board of directors GenTek’s Board determines in good faith, after consultation with outside GenTek’s legal counsel, counsel that the failure of GenTek’s Board to take the actions set forth in clauses (x) and (y) below with respect to such action Acquisition Proposal would reasonably be expected inconsistent with the directors’ exercise of their fiduciary obligations to cause the Company's board of directors to be in breach of its fiduciary duties GenTek’s stockholders under applicable law. In addition, the Company's board of directors then GenTek may, at any time, so long as it is not in breach of Section 6.04 of the Merger Agreement, withdraw, modify or amend the Company Board Recommendation and terminate the Merger Agreement if the Company's board of directors determines, after consultation with outside legal counsel, that the failure to effect any such withdrawal, modification or amendment would reasonably be expected to cause the Company's board of directors to be in breach of its fiduciary duties under applicable law. Nothing contained in the Merger Agreement shall prevent the Company's board of directors from disclosing to the Company's stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act with regard to a Takeover Proposal, if the Company determines, after consultation with outside legal counsel, that failure to disclose such position would constitute a violation of applicable law. • The Company's board of directors may make a Company Adverse Recommendation Change or enter into (or permit any subsidiary to enter into) an agreement with respect to a Takeover Proposal only if: (ix) the Company promptly notifies Parent, in writing, at least 4 business days (the "Notice Period") before making a Company Adverse Recommendation Change or entering into (or causing a subsidiary furnish non-public information to enter into) an agreement with respect to an agreement with respect to a Takeover Proposal, of its intention to take such action with respect to a Superior Proposal, which notice shall state that the Company has received a Takeover Proposal that the Company's board of directors intends to declare a Superior Proposal and that the Company's board of directors intends to make a Company Adverse Recommendation Change and/or the Company intends to enter into an agreement with respect to a Takeover Proposal; (ii) the Company attaches to such notice the material terms and conditions of such Superior Proposal and the identity of the third party making such Superior Proposal; Acquisition Proposal (iii) if, and only if, prior to furnishing such information, GenTek receives from the Company shall, during the Notice Period, negotiate third party an executed confidentiality agreement with Parent in good faith confidentiality provisions no more favorable to make such adjustments person than those confidentiality provisions contained in the terms confidentiality agreement between GenTek and conditions Parent) and (y) engage in discussions or negotiations with such third party with respect to such Acquisition Proposal. GenTek shall promptly, and in any event within 24 hours, notify Parent if GenTek, its subsidiaries or its or their Representatives receives (i) any Acquisition Proposal or (ii) any inquiry or request for discussions or negotiations regarding any Acquisition Proposal. GenTek shall notify Parent promptly and in any event within 24 hours, of the Merger Agreement so that identity of such Takeover Proposal ceases to constitute Person and provide a Superior Proposal (it being agreed that in the event that, after commencement written copy of the Notice Period, there is any material revision to the terms of a Superior such Company Acquisition Proposal, including, inquiry or request and keep Parent reasonably informed on a current basis (and in any revision in price, event within 24 hours) after the Notice Period shall be extended, if applicable, to ensure that at least 3 business days remains in the Notice Period subsequent to the time the Company notifies Parent occurrence of any such material revision); and (iv) the Company's board changes or developments of directors determines in good faithany Acquisition Proposal, after consulting with outside legal counsel and the Company's financial advisor, that such Takeover Proposal continues to constitute a Superior Proposal after taking into account any adjustments made to the Merger Agreement by Parent during the Notice Periodinquiry or request.
Appears in 1 contract
No Solicitation Provisions. The Merger Agreement provides that during the Company shall, and shall cause its subsidiaries to, cease immediately and cause to be terminated, and shall not authorize or knowingly permit any of its or their directors, officers, employees, advisors and investment bankers (the "Representatives") to continue, any and all existing activities, discussions or negotiations, if any, with any third party conducted prior to period beginning on the date of the Merger Agreement and continuing until 11:59 p.m., Pacific Time, on November 7, 2009 (the “Go-Shop Termination Date”), MGF may (i) initiate, solicit or encourage the submission of Acquisition Proposals (as defined below) from one or more persons, and (ii) participate in discussions or negotiations regarding, and take any other action to facilitate any inquiries or the making of any proposal that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal. During this period, prior to providing material non-public information, MGF must execute a confidentiality agreement with respect each such person. MGF also must promptly provide to Parent any material non-public information concerning MGF or its subsidiaries that is provided to any Takeover Proposal until such time, if any, as the Merger Agreement is terminated in accordance with its termsperson which was not previously provided to Parent. The Merger Agreement further also provides that that, from the Company Go-Shop Termination Date until the earlier of the Effective Time or the termination of the Merger Agreement, MGF shall not, and shall cause its subsidiaries not to, and shall direct their respective directors, officers, employees, agents or advisors (including attorneys, accountants, consultants, bankers and financial advisors) (collectively, “MGF Representatives”) not authorize or permit its and its subsidiaries' Representatives to, directly or indirectly, solicit, to (i) initiate, solicit or knowingly take any action to facilitate or encourage (including by way of providing information) the submission of any inquiries, proposals or the making of offers or any proposal other efforts or offerattempts that constitute, that constitutes a Takeover Proposal or that could may reasonably be expected to lead to any Takeover Proposal or (i) conductto, engage inan Acquisition Proposal, or otherwise participate engage in any discussions or negotiations regarding a Takeover Proposal or otherwise cooperate with or knowingly assist, facilitate or encourage any such discussions or negotiations, or provide any non-public information or data to any person relating to the Company or any of its subsidiaries, or afford to any person access to the business, properties, assets, books or records or personnel of the Company or any of its subsidiariesrespect thereto, (ii) approve or recommend, or publicly propose to approve or recommend, any Takeover an Acquisition Proposal, (iii) grant withdraw (or change, amend, modify or qualify in a manner adverse to Parent or Purchaser), or propose publicly to withdraw (or change, amend, modify or qualify, in a manner adverse to Parent or Purchaser), or otherwise make any waiverstatement or proposal inconsistent with, amendment the MGF Board Recommendation (as defined below) (any action or release under any standstill failure to act set forth in the foregoing clauses (ii) or confidentiality agreement(iii), a “Change of Board Recommendation”), or (iv) enter into any agreement in principlemerger agreement, letter of intent, term sheetagreement in principle, acquisition share purchase agreement, merger asset purchase agreement, share exchange agreement, option agreement, joint venture agreement, partnership agreement or other similar definitive agreement contract relating to an Acquisition Proposal or enter into any Takeover Proposal (each, a "Company Acquisition Agreement"). The Company shall notify Parent promptly (but contract or agreement in no event later than 48 hours) after it obtains knowledge of the receipt by the Company (principle that is intended or any of its Representatives) of any Takeover Proposal any inquiry that would reasonably be expected to lead to an Acquisition Proposal or that would reasonably be expected to cause MGF to abandon, terminate or breach its obligations under the Merger Agreement or fail to consummate the transactions contemplated the Merger Agreement. However, following the Go-Shop Termination Date, MGF and the MGF Representatives may continue discussions and negotiations with, and provide information to, any person (i) with whom MGF was having ongoing discussions or negotiations with prior to the Go-Shop termination Date regarding a Takeover possible Acquisition Proposal and (ii) that has been identified in writing to Parent (a “Go-Shop Party”), if the MGF Board determines in good faith that such person could reasonably be expected to make an Acquisition Proposal that after further discussions or negotiations could reasonably result in a Superior Proposal (as defined below). Pursuant to the Merger Agreement, if at anytime following the Go-Shop Termination Date and prior to obtaining MGF stockholder approval of the Merger, (i) MGF receives a bona fide written Acquisition Proposal Table of Contents from any third party that is not a Go-Shop Party, and (ii) the MGF Board determines in good faith that (A) such Acquisition Proposal constitutes a Superior Proposal, and (B) the MGF Board determines in good faith, after consultation with its financial advisors and outside counsel, that the failure of the MGF Board to take the actions set forth in clauses (x) and (y) below with respect to such Acquisition Proposal would be inconsistent with the directors’ exercise of their fiduciary obligations to MGF’s stockholders under applicable law, then MGF may (x) furnish non-public information to such third party making such Acquisition Proposal (provided, that, prior to furnishing such information, (1) MGF shall have received from the third party an executed confidentiality agreement and (2) all such non-public information shall previously have been provided to Parent and Purchaser or is provided to Parent and Purchaser prior to or substantially contemporaneously with the time that it is provided to the third party making the Acquisition Proposal) and (y) engage or participate in discussions or negotiations with such third party with respect to such Acquisition Proposal. MGF shall promptly, and in any event within 48 hours, notify Parent of the receipt of (1) any proposal that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal and the material terms of such proposal and (2) any request for non-public information relating to the Company MGF or any of its subsidiaries or for access to the business, MGF’s properties, assets, books or records records. MGF must disclose the name of the Company person or any of its subsidiaries by any third party. In entity making such notice, the Company shall identify the third party making, Acquisition Proposal and details of the material terms and conditions of, any such Takeover Proposal, indication or request. The Company shall keep Parent reasonably apprised of any material developments, discussions and negotiations with respect to any such Takeover Proposal, indication or request, including any material amendments or proposed amendments as to price and other material terms thereof. The Company shall promptly provide Parent with copies of any non-public information concerning the Company's business, present documents or future performance, financial condition or results of operations, provided to any third party to the extent correspondence evidencing such information has not been previously provided to Parent. As used in the Merger Agreement, a "Takeover Proposal" means any written proposal or offer from any person (other than inquiry. MGF must keep Parent and its subsidiaries, including Purchaser) relating to any (a) direct or indirect acquisition of assets reasonably informed on a current basis of the Company or its subsidiaries (including any voting equity interests of subsidiaries, but excluding sales of assets in the ordinary course of business) equal to twenty percent (20%) or more of the Company's consolidated assets or to which twenty percent (20%) or more of the Company's net revenues or net income on a consolidated basis are attributable, (b) direct or indirect acquisition of twenty percent (20%) or more of the equity interests of the Company (by vote or value), (c) tender offer or exchange offer that if consummated would result in any person beneficially owning (within the meaning of Section 13(d) of the Exchange Act) twenty percent (20%) or more of the equity interests of the Company (by vote or value), (d) merger, consolidation, other business combination or similar transaction involving the Company or any of its subsidiaries, pursuant to which such person would own twenty percent (20%) or more of the equity interests (by vote or value), consolidated assets, net revenues or net income of the Company, taken as a whole, (e) liquidation or dissolution (or the adoption of a plan of liquidation or dissolution) of the Company, or (f) any combination of the foregoing. As used in the Merger Agreement, a "Superior Proposal" means a bona fide written Takeover Proposal not resulting from any violation or breach of the Merger Agreement (with all references to "20%" in the definition of Takeover Proposal deemed to be "a majority" for purposes of the definition of Superior Proposal) made by any person that the Company's board of directors determines in good faith (after consultation with outside legal counsel status and the Company's financial advisor) is more favorable from a financial point of view to the holders of Company's stockholders than the transactions contemplated by the Merger Agreement, taking into account (a) all financial considerations, (b) the identity of the third party making such Takeover Proposal, (c) the anticipated timing, conditions (including any financing condition or the reliability of any debt or equity funding commitments) and prospects for completion of such Takeover Proposal, (d) the other terms and conditions of such Takeover Proposal and the implications thereof on the Company, including relevant legal, regulatory approvals, equityholder litigation, termination fee and expense reimbursement provisions and other aspects of such Takeover Proposal deemed relevant by the Company's board of directors and (e) any revisions to the terms of the Merger Agreement and the Merger proposed by Parent during the Notice Period (as defined below). The Company's Recommendation. The Company's Board of Directors, among other things, has unanimously (i) determined that the terms of the Offer, the Merger and the other transactions contemplated by the Merger Agreement are fair to and in the best interests of the Company and its stockholders and declared the Merger Agreement advisable, (ii) approved the execution, delivery and performance of the Merger Agreement and the consummation of the transactions contemplated thereby, including the Offer and the Merger; and (iii) recommended that the stockholders of the Company accept the Offer, tender their Shares to the Purchaser pursuant to the Offer and, if applicable, adopt the Merger Agreement and the Merger (the "Company Board Recommendation"). Pursuant to the Merger Agreement, neither the Company's board of directors nor any committee thereof shall fail to recommend that the stockholders of the Company accept the Offer, tender their Shares to Purchaser pursuant to the Offer and, if applicable, adopt the Merger Agreement or withdraw, amend, modify or materially qualify the Company Board Recommendation in a manner adverse to Parent or Purchaser, or recommend a Takeover Proposal, or make any public statement inconsistent with the Company Board Recommendation, or resolve or agree to take any of the foregoing actions (any of the foregoing, a "Company Adverse Recommendation Change"). However, at any time prior to the closing of the Offer (but in no event after such time): • Subject to compliance with Section 6.04 of the Merger Agreement, prior to the closing of the Offer the Company's board of directors may, directly or indirectly through their Representatives, (i) participate in negotiations or discussions with any third party that has made (and not withdrawn) an unsolicited Takeover Proposal that the Company's board of directors believes in good faith, after consultation with outside legal counsel and the Company financial advisor, constitutes or is reasonably expected to result in 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 that constitutes an Acceptable Confidentiality Agreement (as defined in the Merger Agreement), (iii) following receipt of and on account of a Superior Proposal, make a Company Adverse Recommendation Change, (iv) terminate the Merger Agreement in accordance with the terms of Section 8.04(a) thereof, and/or (v) take any action that any court of competent jurisdiction orders the Company to take (which order remains unstayed), but in each case referred to in the foregoing clauses (i) through (v), only if the Company's board of directors determines in good faith, after consultation with outside legal counsel, that the failure to take such action would reasonably be expected to cause the Company's board of directors to be in breach of its fiduciary duties under applicable law. In addition, the Company's board of directors may, at any time, so long as it is not in breach of Section 6.04 of the Merger Agreement, withdraw, modify or amend the Company Board Recommendation and terminate the Merger Agreement if the Company's board of directors determines, after consultation with outside legal counsel, that the failure to effect any such withdrawal, modification or amendment would reasonably be expected to cause the Company's board of directors to be in breach of its fiduciary duties under applicable law. Nothing contained in the Merger Agreement shall prevent the Company's board of directors from disclosing to the Company's stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act with regard to a Takeover Proposal, if the Company determines, after consultation with outside legal counsel, that failure to disclose such position would constitute a violation of applicable law. • The Company's board of directors may make a Company Adverse Recommendation Change or enter into (or permit any subsidiary to enter into) an agreement with respect to a Takeover Proposal only if: (i) the Company promptly notifies Parent, in writing, at least 4 business days (the "Notice Period") before making a Company Adverse Recommendation Change or entering into (or causing a subsidiary to enter into) an agreement with respect to an agreement with respect to a Takeover Proposal, of its intention to take such action with respect to a Superior Proposal, which notice shall state that the Company has received a Takeover Proposal that the Company's board of directors intends to declare a Superior Proposal and that the Company's board of directors intends to make a Company Adverse Recommendation Change and/or the Company intends to enter into an agreement with respect to a Takeover Proposal; (ii) the Company attaches to such notice the material terms and conditions of such Superior Proposal and the identity of the third party making such Superior Proposal; (iii) the Company shall, during the Notice Period, negotiate with Parent in good faith to make such adjustments in the terms and conditions of the Merger Agreement so that such Takeover Proposal ceases to constitute a Superior Proposal (it being agreed that in the event that, after commencement of the Notice Period, there is any material revision to the terms of a Superior developments concerning such Acquisition Proposal, including, any revision in price, the Notice Period shall be extended, if applicable, to ensure that at least 3 business days remains in the Notice Period subsequent to the time the Company notifies Parent of any such material revision); and (iv) the Company's board of directors determines in good faith, after consulting with outside legal counsel and the Company's financial advisor, that such Takeover Proposal continues to constitute a Superior Proposal after taking into account any adjustments made to the Merger Agreement by Parent during the Notice Period.
Appears in 1 contract
