Non-Solicitation by Parent. (a) Parent agrees that neither it nor any Subsidiary of Parent, nor any of their respective officers, directors or employees, shall, and that it shall use its reasonable best efforts to cause its and their respective Representatives not to (and shall not authorize or give permission to its and their respective Representatives to), directly or indirectly: (i) solicit, initiate, seek or knowingly encourage the making, submission or announcement of any Parent Acquisition Proposal, (ii) furnish any nonpublic information regarding Parent or any of its Subsidiaries to any Person (other than the Company) in connection with or in response to a Parent Acquisition Proposal, (iii) continue or otherwise engage or participate in any discussions or negotiations with any Person (other than the Company) with respect to any Parent Acquisition Proposal, (iv) except in connection with a Parent Change of Recommendation pursuant to Section 6.5(e), approve, endorse or recommend any Parent Acquisition Proposal or (v) except in connection with a Parent Change of Recommendation pursuant to Section 6.5(e), enter into any letter of intent, arrangement or understanding relating to any Parent Acquisition Transaction (other than a confidentiality agreement as contemplated by this Section 6.5(a)); provided, however, that this Section 6.5 shall not prohibit (A) the Board of Directors of Parent, directly or indirectly through any officer, employee or Representative of Parent or any of its Subsidiaries, prior to obtaining the Parent Stockholder Approval, from furnishing nonpublic information regarding Parent or any of its Subsidiaries to, or entering into or participating in discussions or negotiations with, any Person in response to an unsolicited, bona fide written Parent Acquisition Proposal that the Board of Directors of Parent concludes in good faith, after consultation with its financial advisors, constitutes or could reasonably be expected to result in a Parent Superior Offer if (1) such Parent Acquisition Proposal did not result from a material breach of this Section 6.5, (2) prior thereto Parent has given the Company the notice required by Section 6.5(b) and (3) Parent furnishes any nonpublic information provided to the maker of the Parent Acquisition Proposal only pursuant to a confidentiality agreement between Parent and such Person containing customary terms and conditions substantially similar to those contained in the Confidentiality Agreement; or (B) Parent from complying with Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to any Parent Acquisition Proposal (it being understood that any such disclosure that constitutes a Parent Change of Recommendation shall be subject to the provisions of this Section 6.5 with respect thereto). (b) Parent shall promptly, and in no event later than twenty-four (24) hours, after its receipt of any Parent Acquisition Proposal, or any request for nonpublic information relating to Parent or any of its Subsidiaries in connection with a Parent Acquisition Proposal, advise the Company orally and in writing of such Parent Acquisition Proposal or request (including providing the identity of the Person making or submitting such Parent Acquisition Proposal or request, and, (i) if it is in writing, a copy of such Parent Acquisition Proposal and any related draft agreements or (ii) if it is oral, a reasonably detailed summary thereof that is made or submitted by any Person during the period between the date hereof and the Closing). Parent shall keep the Company informed on a prompt basis with respect to any change to the material terms of any such Parent Acquisition Proposal (and, in the case of a change of the amount of consideration being offered, in no event later than twenty-four (24) hours following any such change), including providing the Company with a copy of any draft agreements and modifications thereof. (c) Upon the execution of this Agreement, Parent shall, and shall cause its Subsidiaries and its and their respective officers, directors and employees, and shall use its reasonable best efforts to cause its and their respective Representatives to, immediately cease and terminate any existing activities, discussions or negotiations between Parent or any of its Subsidiaries or any of their respective officers, directors, employees or Representatives and any Person (other than the Company) that relate to any Parent Acquisition Proposal and shall use reasonable best efforts to obtain the prompt return or destruction of any confidential information previously furnished to such Persons within twelve (12) months of the date hereof. (d) Except as otherwise provided in Section 6.5(e) or Section 6.5(f), none of the Parent, the Board of Directors of Parent nor any committee thereof may (i) withhold, withdraw, qualify or modify, or publicly propose to withhold, withdraw, qualify or modify, the Parent Recommendation in a manner adverse to the Company or make any other statement inconsistent with the Parent Recommendation (any of the foregoing, a “Parent Change of Recommendation”); or (ii) enter into a written definitive agreement providing for a Parent Acquisition Transaction. (e) The Board of Directors of Parent may at any time prior to receipt of the Parent Stockholder Approval, (A) effect a Parent Change of Recommendation in respect of a Parent Acquisition Proposal; and (B) terminate this Agreement pursuant to Section 8.1(d)(iii) in order to enter into a written definitive agreement providing for a Parent Acquisition Transaction, if (and only if): (i) a Parent Acquisition Proposal is made to Parent by a third party, and such offer is not withdrawn; (ii) Parent’s Board of Directors determines in good faith after consultation with its financial advisors that such offer constitutes a Parent Superior Offer; (iii) following consultation with outside legal counsel, Parent’s Board of Directors determines that the failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws; (iv) Parent provides the Company five (5) Business Days’ prior written notice of its intention to take such action, which notice shall include the information with respect to such Parent Superior Offer that is specified in Section 6.5(b) (it being understood that any material revision or amendment to the terms of such Parent Superior Offer shall require a new notice and, in such case, all references to five (5) Business Days in this Section 6.5(e) shall be deemed to be three (3) Business Days); and (v) at the end of the five (5) Business Day period described in clause (iv), the Board of Directors of Parent again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (after negotiating in good faith with the Company and its Representatives, if requested by the Company, during such five (5) Business Day period regarding any adjustments or modifications to the terms of this Agreement proposed by the Company and taking into account any such adjustments or modifications) that Parent Acquisition Proposal continues to be a Parent Superior Offer and that the failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws. (f) The Board of Directors of the Company may, at any time prior to receipt of the Parent Stockholder Approval, effect a Parent Change of Recommendation in response to an event, change, effect, development, condition or occurrence that affects or would be reasonably likely to affect (x) the business, financial condition or continuing results of operations of Parent and its Subsidiaries, taken as a whole, or (y) the benefits of the Merger to Parent or the stockholders of Parent, in either case that is (1) material, individually or in the aggregate with any other such events, changes, effects, developments, conditions or occurrences, (2) does not involve or relate to a Parent Acquisition Proposal and (3) is not known (or the material consequences of which are not known or understood) as of the date hereof if (and only if): (i) following consultation with outside legal counsel, Parent’s Board of Directors determines that the failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws; (ii) Parent provides the Company five (5) Business Days’ prior written notice of its intention to take such action, which notice shall include the information with respect to any such events, changes, effects, developments, conditions or occurrences; and (iii) at the end of the five (5) Business Day period described in clause (ii), the Board of Directors of Parent again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (after negotiating in good faith with the Company and its Representatives, if requested by the Company, during such five (5) Business Day period regarding any adjustments or modifications to the terms of this Agreement proposed by the Company and taking into account any such adjustments or modifications) that the failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws. (g) Notwithstanding a Parent Change of Recommendation pursuant to Section 6.5(f), Parent shall nevertheless submit this Agreement to the stockholders of Parent for the purpose of obtaining the Parent Stockholder Approval at the Parent Stockholders’ Meeting and nothing contained herein shall be deemed to relieve Parent of such obligation, unless this Agreement shall have been terminated in accordance with its terms prior to the Parent Stockholders’ Meeting. (h) The parties agree that a Parent Change of Recommendation effected in accordance with Section 6.5(e) or Section 6.5(f) shall not in and of itself violate any other provision of this Agreement. (i) During the period from the date of this Agreement through the Effective Time, neither Parent nor any of its Subsidiaries shall terminate, amend, modify or waive any provision of any confidentiality agreement to which it is a party relating to a proposed business combination involving Parent or any standstill agreement to which it is a party unless the Board of Directors of Parent determines in good faith, after consultation with outside legal counsel, that failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws. During such period, Parent or its Subsidiaries, as the case may be, shall enforce, to the fullest extent permitted under applicable Law, the provisions of any such agreement, including by obtaining injunctions to prevent any breaches of such agreements and to enforce specifically the terms and provisions thereof in each case except to the extent that the Board of Directors of Parent determines in good faith, after consultation with outside legal counsel, that taking such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws.
Appears in 2 contracts
Samples: Merger Agreement (Exelon Corp), Merger Agreement (Constellation Energy Group Inc)
Non-Solicitation by Parent. (a) During the Pre-Closing Period, Parent agrees that neither it nor any Subsidiary of Parent, nor any of their respective officers, directors or employees, shall, will not and that it shall use its reasonable best efforts to cause its and their respective Representatives not to (and shall will not authorize or give permission to permit any of its and their respective Representatives to)Subsidiaries or any Representative of Parent or its Subsidiaries, directly or indirectly: , to, (i) solicit, initiate, seek knowingly encourage, induce or knowingly encourage facilitate the making, submission or announcement of any Parent Acquisition Proposal or take any action that would reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any nonpublic information regarding Parent or any of its Subsidiaries to any Person (other than the Company) in connection with or in response to a Parent an Acquisition Proposal or an inquiry or indication of interest that could lead to an Acquisition Proposal, (iii) continue or otherwise engage or participate in any discussions or negotiations with any Person (other than the Company) with respect to any Parent Acquisition Proposal, (iv) except in connection with a Parent Change of Recommendation pursuant to Section 6.5(e), approve, endorse or recommend any Parent Acquisition Proposal or (v) except in connection with a Parent Change of Recommendation pursuant to Section 6.5(e), enter into any letter of intent, arrangement intent or understanding similar document or any agreement contemplating or otherwise relating to any Parent Acquisition Transaction (other than a confidentiality agreement as contemplated by this Section 6.5(a)an Acceptable Parent Confidentiality Agreement); provided, however, that this Section 6.5 shall not prohibit (A) the Board of Directors of Parent, directly or indirectly through any officer, employee or Representative of Parent or any of its Subsidiaries, prior to obtaining the adoption of this Agreement by the Parent Stockholder Approval, this Section 5.13(a) will not prohibit Parent from furnishing nonpublic information regarding Parent or any of and its Subsidiaries to, or entering into or participating in discussions or negotiations with, any Person in response to an unsolicited, bona fide written Parent Acquisition Proposal that that, after consultation with a financial advisor of nationally recognized reputation and outside legal counsel and financial advisor, Parent’s board of directors determines in good faith is, or would reasonably be expected to result in, a Superior Offer (and is not withdrawn) if (1) neither Parent nor any Representative of Parent (or its Subsidiaries) will have breached this Section 5.13(a), (2) the Board board of Directors directors of Parent concludes in good faith, after consultation having taken into account the advice of its outside legal counsel, that such action is required in order for the board of directors of Parent to comply with its financial advisorsfiduciary obligations to the Parent’s stockholders under applicable Legal Requirements, constitutes or could reasonably be expected to result in a Parent Superior Offer if (13) such Parent Acquisition Proposal did not result from a material breach of this Section 6.5, at least two (2) business days prior thereto to furnishing any such information to, or entering into discussions with, such Person, Parent has given the gives Company the written notice required by Section 6.5(b) and (3) Parent furnishes any nonpublic information provided to the maker of the identity of such Person and of Parent’s intention to furnish information to, or enter into discussions with, such Person, and Parent Acquisition Proposal only pursuant receives from such Person an executed confidentiality agreement on terms no more favorable to a Parent than the confidentiality agreement between Parent and Company and containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person containing by or on behalf of Parent as well as customary terms “standstill” provisions (an, “Acceptable Parent Confidentiality Agreement”) (4) at least two (2) business days prior to furnishing any such information to such Person, Parent furnishes such nonpublic information to Company (to the extent such nonpublic information has not been previously furnished by Parent to Company). Without limiting the generality of the foregoing, Parent acknowledges and conditions substantially similar to those contained agrees that in the Confidentiality Agreement; event any Representative of Parent (or its Subsidiaries), whether or not such Representative is purporting to act on behalf of Parent (B) or its Subsidiaries), takes any action that, if taken by Parent from complying with Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to any Parent Acquisition Proposal (it being understood that any such disclosure that constitutes or its Subsidiaries), would constitute a Parent Change of Recommendation shall be subject to the provisions breach of this Section 6.5 with respect thereto)5.13, the taking of such action by such Representative will be deemed to constitute a breach of this Section 5.13 by Parent for purposes of this Agreement.
(b) Parent shall promptly, will promptly (and in no event later than twenty-four (24) hours, 24 hours after its receipt of any Parent Acquisition Proposal, any inquiry or indication of interest that could lead to an Acquisition Proposal or any request for nonpublic information) advise Company orally and in writing of any Acquisition Proposal, any inquiry or indication of interest that could lead to an Acquisition Proposal or any request for nonpublic information relating to Parent or any of its Subsidiaries in connection with a Parent Acquisition Proposal, advise the Company orally and in writing of such Parent Acquisition Proposal or request (including providing the identity of the Person making or submitting such Parent Acquisition Proposal Proposal, inquiry, indication of interest or request, and, (iand the material terms thereof) if it is in writing, a copy of such Parent Acquisition Proposal and any related draft agreements or (ii) if it is oral, a reasonably detailed summary thereof that is made or submitted by any Person during the period between the date hereof and the Closing)Pre-Closing Period. Parent shall will keep the Company informed on a prompt basis in all material respects with respect to any change to the material terms status of any such Parent Acquisition Proposal (andProposal, in the case inquiry, indication of a change of the amount of consideration being offered, in no event later than twenty-four (24) hours following interest or request and any such change), including providing the Company with a copy of any draft agreements and modifications thereofmodification or proposed modification thereto.
(c) Upon the execution of this Agreement, Parent shall, and shall cause its Subsidiaries and its and their respective officers, directors and employees, and shall use its reasonable best efforts to cause its and their respective Representatives to, will immediately cease and terminate cause to be terminated any existing activities, discussions or negotiations between Parent or any of its Subsidiaries or any of their respective officers, directors, employees or Representatives and with any Person (other than the Company) that relate to any Parent Acquisition Proposal and shall use reasonable best efforts to obtain the prompt return or destruction of any confidential information previously furnished to such Persons within twelve (12) months of the date hereof.
(d) Except as otherwise provided in Section 6.5(e) or Section 6.5(f), none of the Parent, the Board of Directors of Parent nor any committee thereof may (i) withhold, withdraw, qualify or modify, or publicly propose to withhold, withdraw, qualify or modify, the Parent Recommendation in a manner adverse to the Company or make any other statement inconsistent with the Parent Recommendation (any of the foregoing, a “Parent Change of Recommendation”); or (ii) enter into a written definitive agreement providing for a Parent Acquisition Transaction.
(e) The Board of Directors of Parent may at any time prior to receipt of the Parent Stockholder Approval, (A) effect a Parent Change of Recommendation in respect of a Parent Acquisition Proposal; and (B) terminate this Agreement pursuant to Section 8.1(d)(iii) in order to enter into a written definitive agreement providing for a Parent Acquisition Transaction, if (and only if): (i) a Parent Acquisition Proposal is made to Parent by a third party, and such offer is not withdrawn; (ii) Parent’s Board of Directors determines in good faith after consultation with its financial advisors that such offer constitutes a Parent Superior Offer; (iii) following consultation with outside legal counsel, Parent’s Board of Directors determines that the failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws; (iv) Parent provides the Company five (5) Business Days’ prior written notice of its intention to take such action, which notice shall include the information with respect to such Parent Superior Offer that is specified in Section 6.5(b) (it being understood that any material revision or amendment to the terms of such Parent Superior Offer shall require a new notice and, in such case, all references to five (5) Business Days in this Section 6.5(e) shall be deemed to be three (3) Business Days); and (v) at the end of the five (5) Business Day period described in clause (iv), the Board of Directors of Parent again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (after negotiating in good faith with the Company and its Representatives, if requested by the Company, during such five (5) Business Day period regarding any adjustments or modifications to the terms of this Agreement proposed by the Company and taking into account any such adjustments or modifications) that Parent Acquisition Proposal continues to be a Parent Superior Offer and that the failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws.
(f) The Board of Directors of the Company may, at any time prior to receipt of the Parent Stockholder Approval, effect a Parent Change of Recommendation in response to an event, change, effect, development, condition or occurrence that affects or would be reasonably likely to affect (x) the business, financial condition or continuing results of operations of Parent and its Subsidiaries, taken as a whole, or (y) the benefits of the Merger to Parent or the stockholders of Parent, in either case that is (1) material, individually or in the aggregate with any other such events, changes, effects, developments, conditions or occurrences, (2) does not involve or relate to a Parent Acquisition Proposal and (3) is not known (or the material consequences of which are not known or understood) as of the date hereof if (and only if): (i) following consultation with outside legal counsel, Parent’s Board of Directors determines that the failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws; (ii) Parent provides the Company five (5) Business Days’ prior written notice of its intention to take such action, which notice shall include the information with respect to any such events, changes, effects, developments, conditions or occurrences; and (iii) at the end of the five (5) Business Day period described in clause (ii), the Board of Directors of Parent again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (after negotiating in good faith with the Company and its Representatives, if requested by the Company, during such five (5) Business Day period regarding any adjustments or modifications to the terms of this Agreement proposed by the Company and taking into account any such adjustments or modifications) that the failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws.
(g) Notwithstanding a Parent Change of Recommendation pursuant to Section 6.5(f), Parent shall nevertheless submit this Agreement to the stockholders of Parent for the purpose of obtaining the Parent Stockholder Approval at the Parent Stockholders’ Meeting and nothing contained herein shall be deemed to relieve Parent of such obligation, unless this Agreement shall have been terminated in accordance with its terms prior to the Parent Stockholders’ Meeting.
(h) The parties agree that a Parent Change of Recommendation effected in accordance with Section 6.5(e) or Section 6.5(f) shall not in and of itself violate any other provision of this Agreement.
(i) During the period from the date of this Agreement through the Effective Time, neither Parent nor any of its Subsidiaries shall terminate, amend, modify or waive any provision of any confidentiality agreement to which it is a party relating to a proposed business combination involving Parent or any standstill agreement to which it is a party unless the Board of Directors of Parent determines in good faith, after consultation with outside legal counsel, that failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws. During such period, Parent or its Subsidiaries, as the case may be, shall enforce, to the fullest extent permitted under applicable Law, the provisions of any such agreement, including by obtaining injunctions to prevent any breaches of such agreements and to enforce specifically the terms and provisions thereof in each case except to the extent that the Board of Directors of Parent determines in good faith, after consultation with outside legal counsel, that taking such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws.
Appears in 2 contracts
Samples: Agreement and Plan of Merger and Reorganization (Neothetics, Inc.), Merger Agreement (Regado Biosciences Inc)
Non-Solicitation by Parent. (a) Parent agrees that neither it nor any Subsidiary of Parent, nor any of their respective officers, directors or employees, shall, and that it shall use its reasonable best efforts to cause its and their respective Representatives not to (and shall not authorize or give permission to permit its and their respective Representatives to), directly or indirectly: (i) solicit, initiate, seek or knowingly encourage (including by way of furnishing information) or knowingly take any other action designed to facilitate any inquiries or the making, submission or announcement of any Parent Acquisition Proposal, (ii) furnish any nonpublic information regarding Parent or any of its Subsidiaries to any Person person (other than the Company) in connection with or in response to a Parent Acquisition Proposal, (iii) continue or otherwise engage or participate in any discussions or negotiations with any Person person (other than the Company) with respect to any Parent Acquisition Proposal, (iv) except in connection with a Parent Change of Recommendation pursuant to Section 6.5(e), approve, endorse or recommend any Parent Acquisition Proposal or (v) except in connection with a Parent Change of Recommendation pursuant to Section 6.5(e), enter into any letter of intent, arrangement agreement in principle or understanding relating to other agreement providing for any Parent Acquisition Transaction (other than a confidentiality agreement except as contemplated by this Section 6.5(a7.1(k)); provided, however, that this Section 6.5 5.5 shall not prohibit (A) Parent, or the Board of Directors of Parent, directly or indirectly through any officer, employee or Representative of Parent or any of its SubsidiariesRepresentative, prior to obtaining the receipt of the Parent Stockholder Shareholder Approval, from furnishing nonpublic information regarding Parent or any of its Subsidiaries to, or entering into or participating in discussions or negotiations with, any Person person in response to an unsolicited, bona fide written Parent Acquisition Proposal that the Board of Directors of Parent concludes in good faith, after consultation with its financial advisors, constitutes or could is reasonably be expected likely to result in lead to a Parent Superior Offer if (1) the Board of Directors of Parent concludes in good faith, after consultation with its outside legal counsel, that the failure to take such action with respect to such Parent Acquisition Proposal would be reasonably likely to be inconsistent with the exercise by the Board of Directors of their fiduciary duties under applicable Laws, (2) such Parent Acquisition Proposal did not result from a material breach of this Section 6.55.5(a) (other than any such breach that is unintentional and immaterial in effect), (23) prior thereto Parent has given gives to the Company the notice required by Section 6.5(b) 5.5(b), and (34) Parent furnishes any nonpublic information provided to the maker of the Parent Acquisition Proposal only pursuant to a confidentiality agreement between Parent and such Person containing customary person on terms and conditions substantially similar no less favorable to those contained in Parent than the Confidentiality Agreement (provided that such confidentiality agreement shall not in any way restrict Parent from complying with its disclosure obligations under this Agreement, including with respect to such proposal), and such furnished information is delivered to the Company at substantially the same time (to the extent such information has not been previously furnished or made available by Parent to the Company); or (B) Parent from complying with Rules taking and disclosing to its shareholders a position contemplated by Rule 14d-9 and 14e-2 Rule 14e-2(a) promulgated under the Exchange Act with regard to any Parent Acquisition Proposal (it being understood Proposal, provided, however, that compliance with such rules shall not in any way limit or modify the effect that any action taken pursuant to such disclosure rules has under any other provision of this Agreement and in no event shall Parent or the Parent Board of Directors or a committee thereof take any action that constitutes would constitute a Parent Change in Recommendation in respect of Recommendation shall be subject to the provisions of this a Parent Acquisition Proposal other than in compliance with Section 6.5 with respect thereto5.5(d).
(b) Parent shall promptly, and in no event later than twenty-four (24) hours, 24 hours after its receipt of any Parent Acquisition Proposal, or any request for nonpublic information relating to Parent or any of its Subsidiaries in connection with a Parent Acquisition Proposal, advise the Company orally and in writing of such Parent Acquisition Proposal or request (request, including providing the identity of the Person person making or submitting such Parent Acquisition Proposal or request, and, (ix) if it is in writing, a copy of such Parent Acquisition Proposal and any related draft agreements or and (iiy) if it is oral, a reasonably detailed summary thereof of any such Parent Acquisition Proposal or request that is made or submitted by any Person person during the period between the date hereof and the Closing). Parent shall (i) keep the Company informed in all material respects on a prompt basis with respect to any change to the status or material terms of any such Parent Acquisition Proposal (and, in the case of a change of the amount of consideration being offered, and in no event later than twenty-four (24) 24 hours following any such change), including providing (ii) provide to the Company as soon as practicable after receipt or delivery thereof with copies of all correspondence and other written material sent or provided to Parent from any third party in connection with any Parent Acquisition Proposal or sent or provided by Parent to any third party in connection with any Parent Acquisition Proposal and (iii) provide the Company with a copy advance written notice of any draft agreements and modifications thereofscheduled meeting of the Parent Board of Directors to discuss a Parent Acquisition Proposal.
(c) Upon the execution of this Agreement, Parent shall, and shall cause its Subsidiaries and its and their respective officers, directors and employees, and shall use its reasonable best efforts to cause its and their respective Representatives to, immediately cease and terminate any discussions existing activities, discussions or negotiations as of the date of this Agreement between Parent or any of its Subsidiaries or any of their respective officers, directors, employees or Representatives and any Person person (other than the Company) that relate to any Parent Acquisition Proposal and, to the extent provided by the applicable confidentiality agreement or similar agreement governing such discussions, require any third party to such discussions to return to Parent or to destroy all confidential information of Parent and shall its Subsidiaries. Parent agrees not to, and to cause its Subsidiaries not to, waive, or otherwise release any third party from, the confidentiality and standstill provisions of any agreement to which Parent or any of its Subsidiaries is or may become a party and agrees to use commercially reasonable best efforts to obtain enforce the prompt return or destruction provisions of any confidential information previously furnished to such Persons within twelve (12) months of the date hereofagreements.
(d) Except as otherwise provided in contemplated by this Section 6.5(e) or Section 6.5(f5.5(d), none of the Parent, neither the Board of Directors of Parent nor any committee thereof may shall (i) (A) withhold, withdraw, qualify or modify, or resolve to or publicly propose to withhold, withdraw, qualify or modify, modify the Parent Recommendation in a manner adverse to the Company or Company, (B) make any other public statement in connection with the Parent Shareholders’ Meeting or this Agreement or the Transactions inconsistent with the Parent Recommendation, (C) approve, adopt or recommend any Parent Acquisition Proposal or (D) fail to reaffirm or re-publish the Parent Recommendation within five days of being requested by the Company to do so (any of the foregoing, each such action set forth in clauses (A) through (D) above being a “Parent Change of Recommendation”); ) or (ii) enter into approve, adopt or recommend, or publicly propose to approve, adopt or recommend, a written definitive merger agreement, letter of intent, agreement in principle, share purchase agreement, asset purchase agreement, share exchange agreement, option agreement or other similar contract (other than the confidentiality agreement referred to in Section 5.5(a)) or any tender offer providing for a for, with respect to, or in connection with any Parent Acquisition Transaction.
(e) The Proposal. Notwithstanding the foregoing, the Board of Directors of Parent may at any time prior to receipt of the Parent Stockholder Shareholder Approval, (A) effect a Parent Change of Recommendation in respect of a Parent Acquisition Proposal; , make a Parent Change of Recommendation and (Bii) terminate this Agreement pursuant to Section 8.1(d)(iii7.1(k) in order to enter into a written definitive agreement providing for a Parent Acquisition Transactionof this Agreement, if (and only if): (iA) a Parent Acquisition Proposal is made to Parent by a third party, and such offer is not withdrawn; (iiB) Parent’s Board of Directors determines in good faith after consultation with its financial advisors that such offer constitutes a Parent Superior Offer; (iiiC) following consultation with outside legal counsel, Parent’s Board of Directors determines that the failure to take such action make a Parent Change of Recommendation, or to terminate this Agreement pursuant to Section 7.1(k) of this Agreement, would be reasonably likely to result in a breach be inconsistent with the exercise of its fiduciary duties under applicable Laws; , (ivD) the Parent provides Board of Directors has provided to the Company five (5) Business Days’ business days prior written notice of its intention intent to take such action, effect a Parent Change of Recommendation (which notice shall include the information with respect to such Parent Superior Offer that is specified in Section 6.5(b) (it being understood that any material revision or amendment to reasonable details regarding the terms of such Parent Superior Offer shall require a new notice andcause for, in such case, all references to five (5) Business Days in this Section 6.5(e) shall be deemed to be three (3) Business Days); and (v) at the end of the five (5) Business Day period described in clause (iv)nature of, the Board Parent Change of Directors of Parent again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (after negotiating in good faith with the Company and its RepresentativesRecommendation and, if requested by the Company, negotiated in good faith with the Company during such five (5) Business Day business day period regarding any adjustments or modifications revisions to this Agreement which would avoid such Parent Change of Recommendation and (E) the Parent Board of Directors has provided to the terms Company advance written notice of this Agreement proposed by the Company and taking into account any such adjustments or modifications) that Parent Acquisition Proposal continues to be a Parent Superior Offer and that the failure to take such action would be reasonably likely to result in a breach Change of its fiduciary duties under applicable Laws.
(f) Recommendation at least two hours prior thereto. The Board of Directors of Parent may not, in respect of Parent Acquisition Proposal, make a Parent Change of Recommendation in a manner adverse to the Company mayexcept in compliance in all respects with this Section 5.5(d). For the avoidance of doubt, a change of the Parent Recommendation to “neutral” is a Parent Change of Recommendation.
(e) Nothing in this Agreement shall prohibit or restrict the Board of Directors of Parent, at any time prior to receipt of the Parent Stockholder Shareholder Approval, effect in circumstances not involving or relating to a Parent Acquisition Proposal, from effecting a Parent Change of Recommendation in response to an event, change, effect, development, condition or occurrence that affects or would be reasonably likely to affect (x) the business, financial condition or continuing results of operations of Parent and its Subsidiaries, taken as a whole, or (y) the benefits of the Merger to Parent or the stockholders of Parent, in either case that is (1) material, individually or in the aggregate with any other such events, changes, effects, developments, conditions or occurrences, (2) does not involve or relate to a Parent Acquisition Proposal and (3) is not known (or the material consequences of which are not known or understood) as of the date hereof if (and only if): (i) following consultation with outside legal counsel, Parent’s Board of Directors determines that the failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws; (ii) Parent provides the Company five (5) Business Days’ prior written notice of its intention to take such action, which notice shall include the information with respect to any such events, changes, effects, developments, conditions or occurrences; and (iii) at the end of the five (5) Business Day period described in clause (ii), the Board of Directors of Parent again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (after negotiating in good faith with the Company and its Representatives, if requested by the Company, during such five (5) Business Day period regarding any adjustments or modifications to the terms of this Agreement proposed by the Company and taking into account any such adjustments or modifications) that the failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws.
(g) Notwithstanding a Parent Change of Recommendation pursuant to Section 6.5(f), Parent shall nevertheless submit this Agreement to the stockholders of Parent for the purpose of obtaining the Parent Stockholder Approval at the Parent Stockholders’ Meeting and nothing contained herein shall be deemed to relieve Parent of such obligation, unless this Agreement shall have been terminated in accordance with its terms prior to the Parent Stockholders’ Meeting.
(h) The parties agree that a Parent Change of Recommendation effected in accordance with Section 6.5(e) or Section 6.5(f) shall not in and of itself violate any other provision of this Agreement.
(i) During the period from the date of this Agreement through the Effective Time, neither Parent nor any of its Subsidiaries shall terminate, amend, modify or waive any provision of any confidentiality agreement to which it is a party relating to a proposed business combination involving Parent or any standstill agreement to which it is a party unless the Board of Directors of Parent determines in good faith, faith (after consultation with outside legal counsel, ) that failure to take such action would be reasonably likely to result in a breach be inconsistent with the exercise by the Board of Directors of its fiduciary duties under applicable Laws. During such period, Laws if (and only if): (A) the Parent or its Subsidiaries, as the case may be, shall enforce, to the fullest extent permitted under applicable Law, the provisions of any such agreement, including by obtaining injunctions to prevent any breaches of such agreements and to enforce specifically the terms and provisions thereof in each case except to the extent that the Board of Directors has provided to the Company five business days prior written notice of its intent to effect a Parent determines Change of Recommendation (which notice shall include the reasonable details regarding the cause for, and nature of, the Parent Change of Recommendation and, if requested by the Company, negotiated in good faith, after consultation faith with outside legal counsel, the Company during such five business day period regarding revisions to this Agreement that taking would avoid such action would be reasonably likely Parent Change of Recommendation and (B) the Parent Board of Directors has provided to result the Company advance written notice of such Parent Change of Recommendation at least two hours prior thereto.
(f) As used in a breach of its fiduciary duties under applicable Laws.this Agreement:
Appears in 2 contracts
Samples: Merger Agreement (Allegheny Energy, Inc), Merger Agreement (Firstenergy Corp)
Non-Solicitation by Parent. (a) Parent agrees that neither it nor any Subsidiary of Parent, nor any of their respective officers, directors or employees, shall, and that it shall use its reasonable best efforts to cause its and their respective Representatives not to (and shall not authorize or give permission to its and their respective Representatives to), directly or indirectly: (i) solicit, initiate, seek or knowingly encourage or facilitate the making, submission or announcement of any proposal that constitutes, or would reasonably be expected to lead to, a Parent Acquisition Proposal, (ii) furnish any nonpublic non-public information regarding Parent or any of its Subsidiaries to, or afford access to the properties, books and records of Parent to, any Person person (other than the Company) ), in connection with or in response to a Parent Acquisition Proposal, (iii) continue or otherwise engage or participate in any discussions or negotiations with any Person person (other than the Company) with respect to any Parent Acquisition Proposal, (iv) except in connection with a Parent Change of Recommendation pursuant to Section 6.5(e), approve, endorse or recommend any Parent Acquisition Proposal or (v) except in connection with a Parent Change of Recommendation pursuant to Section 6.5(e), enter into any letter of intent, arrangement memorandum of understanding, merger agreement, acquisition agreement or understanding relating to any other agreement providing for any Parent Acquisition Transaction (other than a confidentiality agreement except as contemplated by this Section 6.5(a7.1(k)); provided, however, that this Section 6.5 5.5 shall not prohibit (A) Parent, or the Board of Directors of Parent, directly or indirectly through any officer, employee or Representative of Parent or any of its SubsidiariesRepresentative, prior to obtaining the Parent Stockholder Approval, from furnishing nonpublic information regarding Parent or taking any of its Subsidiaries to, the actions described in clauses (ii) or entering into or participating in discussions or negotiations with, any Person (iii) above in response to an unsolicited, bona fide written Parent Acquisition Proposal that the Board of Directors of Parent concludes in good faith, after consultation with its financial advisors, constitutes or could is reasonably be expected to result in a Parent Superior Offer if (1) the Board of Directors of Parent concludes in good faith, after consultation with its outside legal counsel, that the failure to take such action with respect to such Parent Acquisition Proposal would be reasonably likely to be inconsistent with the exercise by the Board of Directors of its fiduciary duties under applicable Laws, (2) such Parent Acquisition Proposal did not result from a material breach of this Section 6.55.5(a), (23) prior thereto Parent has given gives to the Company the notice required by Section 6.5(b) 5.5(b), and (34) Parent furnishes any nonpublic information provided to the maker of the Parent Acquisition Proposal only pursuant to a confidentiality agreement between Parent and such Person containing customary person on substantially the same terms and conditions substantially similar with respect to those contained in confidentiality as the Confidentiality Agreement; or (B) Parent from complying with Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to any Parent Acquisition Proposal (it being understood Proposal; provided, however, that compliance with such rules shall not in any way limit or modify the effect that any action taken pursuant to such disclosure that constitutes a Parent Change of Recommendation shall be subject to the provisions rules has under any other provision of this Section 6.5 with respect thereto)Agreement.
(b) Parent shall promptly, and in no event later than twenty-four (24) hours, hours after its receipt of any Parent Acquisition Proposal, or any request for nonpublic information relating to Parent or any of its Subsidiaries in connection with a Parent Acquisition Proposal, advise the Company orally and in writing of such Parent Acquisition Proposal or request (including providing the identity of the Person person making or submitting such Parent Acquisition Proposal or request, and, (ix) if it is in writing, a copy of such Parent Acquisition Proposal and any related draft agreements or and (iiy) if it is oral, a reasonably detailed summary thereof that is made or submitted by any Person person during the period between the date hereof and the Closing). Parent shall keep the Company informed in all material respects on a prompt basis with respect to any change to the material terms of of, any such Parent Acquisition Proposal (and, in the case of a change of the amount of consideration being offered, and in no event later than twenty-four (24) hours following any such change), including providing . Parent agrees that it shall promptly provide to the Company any non-public information concerning itself or its Subsidiaries provided to any other person in connection with a copy of any draft agreements and modifications thereofParent Acquisition Proposal which was not previously provided to the Company.
(c) Upon Immediately following the execution of this Agreement, Parent shall, and shall cause its Subsidiaries and its and their respective officers, directors and employees, and shall use its reasonable best efforts to cause its and their respective Representatives to, immediately cease and terminate any discussions existing activities, discussions or negotiations as of the date of this Agreement between Parent or any of its Subsidiaries or any of their respective officers, directors, employees or Representatives and any Person person (other than the Company) that relate to any Parent Acquisition Proposal and shall use reasonable best efforts to obtain the prompt return or destruction of any confidential information previously furnished to such Persons within twelve (12) months of the date hereofProposal.
(d) Except as otherwise provided in Section 6.5(e5.5(e) or Section 6.5(f5.5(f), none of the Parent, neither the Board of Directors of Parent nor any committee thereof may (i) withhold, withdraw, qualify withdraw or modify, or publicly propose to withhold, withdraw, qualify withdraw or modify, the Parent Recommendation in a manner adverse to the Company or make (ii) recommend, adopt or approve, or propose publicly to recommend, adopt or approve, any other statement inconsistent with the Parent Recommendation Acquisition Proposal (any of the foregoingaction described in this Section 5.5(d), a “Parent Change of Recommendation”); or (ii) enter into a written definitive agreement providing for a Parent Acquisition Transaction.
(e) The Notwithstanding anything in this Agreement to the contrary, with respect to a Parent Acquisition Proposal, the Board of Directors of Parent may at any time prior to receipt of the Parent Stockholder Approval, (A) effect make a Parent Change of Recommendation in respect of a Parent Acquisition Proposal; and (B) terminate this Agreement pursuant to Section 8.1(d)(iii) in order to enter into a written definitive agreement providing for a Parent Acquisition Transaction7.1(k), if (and only if): (i) a written Parent Acquisition Proposal (that did not result from a breach of Section 5.4(a)) is made to Parent by a third party, and such offer Parent Acquisition Proposal is not withdrawn; (ii) Parent’s Board of Directors determines in good faith after consultation with its financial advisors that such offer Parent Acquisition Proposal constitutes a Parent Superior Offer; (iii) following consultation with outside legal counsel, Parent’s Board of Directors determines that the failure to take such action make a Parent Change of Recommendation, or to terminate this Agreement pursuant to Section 7.1(k), would be reasonably likely to result in a breach be inconsistent with the exercise of its fiduciary duties under applicable Laws; (iv) Parent provides the Company five (5) Business Daysbusiness days’ prior written notice of its intention to take such action, which notice shall include the information with respect to such Parent Superior Offer that is specified in Section 6.5(b) (it being understood that any material revision or amendment to the terms of such Parent Superior Offer shall require a new notice and, in such case, all references to five (5) Business Days in this Section 6.5(e) shall be deemed to be three (3) Business Days5.5(b); and (v) at the end of the five (5) Business Day business day period described in clause (iv), the Board of Directors of Parent again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (after negotiating in good faith with the Company and its Representatives, if requested by the Company, during such five (5) Business Day period regarding taking into account any adjustments adjustment or modifications to modification of the terms of this Agreement proposed by the Company and taking into account any such adjustments or modificationsCompany) that the Parent Acquisition Proposal continues to be a Parent Superior Offer and that the failure Parent Change of Recommendation is required to take such action would be reasonably likely to result in a breach of its comply with the fiduciary duties of the Board of Directors of Parent to the stockholders of Parent under applicable Laws.
(f) The Nothing in this Agreement shall prohibit or restrict the Board of Directors of the Company mayParent, at any time prior in circumstances not involving or relating to receipt of the a Parent Stockholder ApprovalAcquisition Proposal, effect from effecting a Parent Change of Recommendation if (i) in response to an event, change, effect, development, condition a material development or occurrence that affects change in circumstances occurring or would be reasonably likely to affect (x) the business, financial condition or continuing results of operations of Parent and its Subsidiaries, taken as a whole, or (y) the benefits of the Merger to Parent or the stockholders of Parent, in either case that is (1) material, individually or in the aggregate with any other such events, changes, effects, developments, conditions or occurrences, (2) does not involve or relate to a Parent Acquisition Proposal and (3) is not known (or the material consequences of which are not known or understood) as of arising after the date hereof if (and only if): (i) following consultation with outside legal counsel, Parent’s Board of Directors determines that the failure was neither known to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws; (ii) Parent provides the Company five (5) Business Days’ prior written notice of its intention to take such action, which notice shall include the information with respect to any such events, changes, effects, developments, conditions or occurrences; and (iii) at the end of the five (5) Business Day period described in clause (ii), the Board of Directors of Parent again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (after negotiating in good faith with the Company and its Representatives, if requested by the Company, during such five (5) Business Day period regarding any adjustments or modifications to the terms of this Agreement proposed by the Company and taking into account any such adjustments or modifications) that the failure to take such action would be nor reasonably likely to result in a breach of its fiduciary duties under applicable Laws.
(g) Notwithstanding a Parent Change of Recommendation pursuant to Section 6.5(f), Parent shall nevertheless submit this Agreement to the stockholders of Parent for the purpose of obtaining the Parent Stockholder Approval foreseeable at the Parent Stockholders’ Meeting and nothing contained herein shall be deemed to relieve Parent of such obligation, unless this Agreement shall have been terminated in accordance with its terms prior to the Parent Stockholders’ Meeting.
(h) The parties agree that a Parent Change of Recommendation effected in accordance with Section 6.5(e) or Section 6.5(f) shall not in and of itself violate any other provision of this Agreement.
(i) During the period from the date of this Agreement through the Effective Time, neither Parent nor any of its Subsidiaries shall terminate, amend, modify (and which change or waive any provision of any confidentiality agreement to which it is a party relating development does not relate to a proposed business combination involving Parent or any standstill agreement to which it is a party unless Acquisition Proposal), the Board of Directors of Parent determines in good faith, faith (after consultation with outside legal counsel, ) that failure to take such action would be reasonably likely to result in a breach be inconsistent with the exercise by the Board of Directors of its fiduciary duties under applicable Laws. During such period, (ii) Parent or its Subsidiarieshas notified the Company in writing, as the case may be, shall enforce, to the fullest extent permitted under applicable Law, the provisions of any such agreement, including by obtaining injunctions to prevent any breaches at least five (5) business days in advance of such agreements Parent Change of Recommendation, that it is considering taking such action and to enforce specifically specifying in reasonable detail the reasons therefor and (iii) during such five (5) business day period Parent has considered, and, at the reasonable request of the Company, engaged in discussions with the Company regarding, any adjustments in writing by the Company in the terms and provisions thereof conditions of this Agreement, should the Company propose any such adjustments.
(g) As used in each case except to the extent that the Board of Directors of Parent determines in good faith, after consultation with outside legal counsel, that taking such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws.this Agreement:
Appears in 2 contracts
Samples: Merger Agreement (Mirant Corp), Merger Agreement (Rri Energy Inc)
Non-Solicitation by Parent. (a) Until the earlier of the Effective Time and the termination of this Agreement in accordance with Article VIII, Parent agrees that neither it nor any Subsidiary of Parentand its Subsidiaries shall not, nor any of and Parent shall cause its and their respective officers, directors or employees, shalland employees not to, and that it Parent shall use its reasonable best efforts to cause its and their respective Representatives not to (and shall not authorize or give permission to its and their respective Representatives to), directly or indirectly: (i) solicit, initiate, seek or knowingly encourage or facilitate the making, submission or announcement of any inquiry, discussion, request, offer or proposal that constitutes, or would reasonably be expected to lead to, a Parent Acquisition Proposal, (ii) furnish any nonpublic non-public information regarding Parent or any of its Subsidiaries to, or afford access to the properties, books and records of Parent or any Person (other than the Company) of its Subsidiaries to, any Third Party, in connection with or in response to, or that would be reasonably likely to lead to, a Parent Acquisition Proposal, (iii) continue or otherwise engage or participate in any discussions or negotiations with any Person (other than the Company) Third Party with respect to, or that would be reasonably likely to lead to, any Parent Acquisition Proposal, or (iv) except in connection with a Parent Change of Recommendation pursuant to Section 6.5(e), adopt or approve, endorse or recommend any Parent Acquisition Proposal or (v) except in connection with a Parent Change of Recommendation pursuant to Section 6.5(e), enter into any letter of intent, arrangement agreement in principle, memorandum of understanding, term sheet, merger agreement, acquisition agreement, option agreement or understanding any other agreement (other than an Acceptable Confidentiality Agreement) or instrument providing for or relating to to, any Parent Acquisition Transaction (other than a confidentiality agreement as contemplated by this Section 6.5(a))Proposal; provided, however, that this Section 6.5 6.5(a) shall not prohibit (A) Parent, or the Board of Directors of Parent, directly or indirectly through any officer, employee or Representative of Parent or from taking any of its Subsidiaries, prior to obtaining the Parent Stockholder Approval, from furnishing nonpublic information regarding Parent actions described in clauses (ii) or any of its Subsidiaries to, or entering into or participating in discussions or negotiations with, any Person (iii) above in response to an unsolicited, a bona fide written Parent Acquisition Proposal received by Parent or its directors, officers, employees or Representatives from a Third Party after the execution and delivery of this Agreement which did not result from or arise in connection with a breach of this Section 6.5(a) that is not withdrawn if (but only if): (1) the Board of Directors of Parent concludes determines in good faith, after consultation with its a financial advisorsadvisor of nationally recognized reputation and outside legal counsel, that such Parent Acquisition Proposal constitutes or could is reasonably be expected to result in a Parent Superior Offer if Offer, (12) the Board of Directors of Parent determines in good faith, after consultation with outside legal counsel, that the failure to take such action with respect to such Parent Acquisition Proposal did not result from a material breach would be reasonably likely to be inconsistent with the exercise by the Board of this Section 6.5Directors of its fiduciary duties under applicable Law, (23) prior thereto Parent has given gives to the Company the notice (which notice must state that Parent’s Board of Directors’ has made the determinations contemplated by the foregoing clauses (1) and (2)), required by Section 6.5(b) and ), (34) Parent furnishes any nonpublic non-public information provided and/or provides access to such Third Party (or its directors, officers, employees or Representatives) only after such Third Party enters into an Acceptable Confidentiality Agreement with Parent and only pursuant thereto; (B) Parent from waiving any standstill or similar provisions in any Acceptable Confidentiality Agreement entered into after the maker date of this Agreement in order to permit the counterparty thereto to make a Parent Acquisition Proposal only pursuant to a confidentiality agreement between Parent and such Person containing customary terms and conditions substantially similar to those contained in the Confidentiality Agreement; or (BC) Parent from complying with Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to any Parent Acquisition Proposal (it being understood Proposal; provided, however, that compliance with such rules shall not in any way limit or modify the effect that any action taken pursuant to such disclosure that constitutes a Parent Change of Recommendation shall be subject to the provisions rules may have under any other provision of this Section 6.5 with respect thereto)Agreement.
(b) From and after the date hereof until the earlier of the Effective Time and the termination of this Agreement in accordance with Article VIII, Parent shall promptly, promptly (and in no any event later than within twenty-four (24) hours, after its receipt of any Parent Acquisition Proposal, or any request for nonpublic information relating to Parent or any of its Subsidiaries in connection with a Parent Acquisition Proposal, advise ) notify the Company orally and in writing of such its receipt of (i) any Parent Acquisition Proposal (whether written, oral or otherwise), (ii) any inquiry or request for information regarding Parent or any of its Subsidiaries or for access to the properties, books and records of Parent or any of its Subsidiaries, in each case, in connection with or in response to a Parent Acquisition Proposal, or (including providing iii) any discussions or negotiations sought to be entered into or continued with Parent, any of its Subsidiaries or its or their respective directors, officers, employees or Representatives with any Third Party (or its directors, officers, employees or Representatives) in connection with or in response to, or that would be reasonably likely to lead to, a Parent Acquisition Proposal. Any such notice pursuant to the foregoing sentence shall include (A) the identity of the Person Third Party making or submitting such Parent Acquisition Proposal or request, and, (iB) if it is in writing, a copy of such Parent Acquisition Proposal and any related draft agreements or agreements, and (iiC) if it is oral, a reasonably detailed summary thereof that is made or submitted by of any Person during the period between the date hereof material communications relating to, and the Closing)material terms and conditions of, such Parent Acquisition Proposal or request. Parent shall keep the Company reasonably informed on a prompt basis with respect to any change to the material terms of any such Parent Acquisition Proposal (and, in the case of a change of the amount of consideration being offered, and in no event later than twenty-four (24) hours following any such change)) to any of the financial terms or any other material term or condition of any such Parent Acquisition Proposal, including providing the information and documents set forth in clauses (A) through (C) of the foregoing sentence with respect to any material change thereto. Parent shall promptly provide to the Company any non-public information regarding Parent and its Subsidiaries and promptly provide access to the properties, books and records of Parent and its Subsidiaries provided to any such Third Party which was not previously provided to the Company. Parent shall not enter into any agreement (or amend or modify any existing agreement) with a copy any Third Party which would prevent Parent or any of any draft agreements and modifications thereofits Subsidiaries or their respective Representatives from complying with this Section 6.5(b).
(c) Upon Immediately following the execution of this Agreement, Parent shall, and shall cause its Subsidiaries and its and their respective officers, directors and employees, and shall use its reasonable best efforts to cause its and their respective Representatives to, (i) immediately cease and terminate any existing activitiesand all solicitations, discussions or negotiations existing as of the date of this Agreement between Parent or any of its Subsidiaries or any of their respective officers, directors, employees or Representatives and any Person Third Party (or its Representatives) in connection with or in response to a Parent Acquisition Proposal, and (ii) request that each such Third Party and its Representatives promptly return or destroy all confidential information theretofore furnished thereto by or on behalf of Parent or any of its Subsidiaries (and destroy all analyses and other than the Companymaterials prepared by or on behalf of such Third Party that contain, reflect or analyze such information). If Parent becomes aware of any material breach by a Third Party (or its Representatives) that relate of any standstill provision to which such Third Party is subject pursuant to any agreement with Parent Acquisition Proposal and or any of its Subsidiaries, Parent shall use reasonable best efforts take all necessary actions to obtain the prompt return or destruction of any confidential information previously furnished to enforce such Persons within twelve (12) months of the date hereofstandstill provision.
(d) Except as otherwise provided in Section 6.5(e) or Section 6.5(f), none of the Parent, neither Parent nor the Board of Directors of Parent nor or any committee thereof may shall (i) withhold, withdraw, qualify withdraw or modify, or publicly propose to withhold, withdraw, qualify withdraw or modify, the Parent Recommendation in a manner adverse to the Company or make any other statement inconsistent with Company, including by failing to include the Parent Recommendation in the Proxy Statement and Form S-4, or (ii) recommend, adopt or approve, or propose publicly to recommend, adopt or approve, any Parent Acquisition Proposal (any of the foregoingaction described in this Section 6.5(d), a “Parent Change of Recommendation”); or (ii) enter into a written definitive agreement providing for a Parent Acquisition Transaction.
(e) The Notwithstanding anything in this Agreement to the contrary, the Board of Directors of Parent may at any time prior to receipt of the Parent Stockholder Approval, (A) effect a Parent Change of Recommendation in respect of connection with or relating to a Parent Acquisition Proposal; and Proposal (Bprovided that, for the avoidance of doubt, such actions will nonetheless constitute a Parent Change of Recommendation) or terminate this Agreement pursuant to Section 8.1(d)(iii) in order to enter into a written definitive agreement providing for a Parent Acquisition Transaction8.1(g), if (and but only if): ):
(i) a bona fide written Parent Acquisition Proposal is made to received by Parent by or its directors, officers, employees or Representatives from a third partyThird Party after the execution and delivery of this Agreement which did not result from, arise in connection with a breach of this Section 6.5 and such offer Parent Acquisition Proposal is not withdrawn; ;
(ii) Parent’s Board of Directors determines in good faith after consultation with its financial advisors that such offer constitutes a Parent Superior Offer; (iii) following consultation with outside legal counsel, Parent’s Board of Directors determines that the failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws; (iv) Parent provides the Company five (5) Business Days’ prior written notice of its intention to take such action, which notice shall include the information with respect to such Parent Superior Offer that is specified in Section 6.5(b) (it being understood that any material revision or amendment to the terms of such Parent Superior Offer shall require a new notice and, in such case, all references to five (5) Business Days in this Section 6.5(e) shall be deemed to be three (3) Business Days); and (v) at the end of the five (5) Business Day period described in clause (iv), the Board of Directors of Parent again makes the determination determines in good faith faith, after consultation with its outside legal counsel a financial advisor of nationally recognized reputation and financial advisors (after negotiating in good faith with the Company and its Representatives, if requested by the Company, during such five (5) Business Day period regarding any adjustments or modifications to the terms of this Agreement proposed by the Company and taking into account any such adjustments or modifications) that Parent Acquisition Proposal continues to be a Parent Superior Offer and that the failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws.
(f) The Board of Directors of the Company may, at any time prior to receipt of the Parent Stockholder Approval, effect a Parent Change of Recommendation in response to an event, change, effect, development, condition or occurrence that affects or would be reasonably likely to affect (x) the business, financial condition or continuing results of operations of Parent and its Subsidiaries, taken as a whole, or (y) the benefits of the Merger to Parent or the stockholders of Parent, in either case that is (1) material, individually or in the aggregate with any other such events, changes, effects, developments, conditions or occurrences, (2) does not involve or relate to a Parent Acquisition Proposal and (3) is not known (or the material consequences of which are not known or understood) as of the date hereof if (and only if): (i) following consultation with outside legal counsel, Parent’s Board of Directors determines that the failure to take such action would be reasonably likely to result in Parent Acquisition Proposal constitutes a breach of its fiduciary duties under applicable Laws; (ii) Parent provides the Company five (5) Business Days’ prior written notice of its intention to take such action, which notice shall include the information with respect to any such events, changes, effects, developments, conditions or occurrences; and Superior Offer;
(iii) at the end of the five (5) Business Day period described in clause (ii), the Board of Directors of Parent again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (after negotiating in good faith with the Company and its Representatives, if requested by the Company, during such five (5) Business Day period regarding any adjustments or modifications to the terms of this Agreement proposed by the Company and taking into account any such adjustments or modifications) that the failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws.
(g) Notwithstanding a Parent Change of Recommendation pursuant to Section 6.5(f), Parent shall nevertheless submit this Agreement to the stockholders of Parent for the purpose of obtaining the Parent Stockholder Approval at the Parent Stockholders’ Meeting and nothing contained herein shall be deemed to relieve Parent of such obligation, unless this Agreement shall have been terminated in accordance with its terms prior to the Parent Stockholders’ Meeting.
(h) The parties agree that a Parent Change of Recommendation effected in accordance with Section 6.5(e) or Section 6.5(f) shall not in and of itself violate any other provision of this Agreement.
(i) During the period from the date of this Agreement through the Effective Time, neither Parent nor any of its Subsidiaries shall terminate, amend, modify or waive any provision of any confidentiality agreement to which it is a party relating to a proposed business combination involving Parent or any standstill agreement to which it is a party unless the Board of Directors of Parent determines in good faith, after consultation with outside legal counsel, that the failure to take effect a Parent Change of Recommendation or terminate this Agreement pursuant to Section 8.1(g) with respect to such action Parent Superior Offer would be reasonably likely to result in a breach be inconsistent with the exercise of its the Board of Directors’ fiduciary duties under applicable Laws. During such periodLaw;
(iv) Parent provides the Company at least four Business Days’ prior written notice stating that Parent will effect a Parent Change of Recommendation pursuant to this Section 6.5(e) or terminate this Agreement pursuant to Section 8.1(g); provided, Parent or its Subsidiarieshowever, as the case may be, shall enforce, that any change to the fullest extent permitted under applicable Law, financial terms or any other material change to the provisions terms and conditions of any such agreementParent Superior Offer shall require a new written notice to be delivered by Parent to the Company and Parent shall be required to comply again with the requirements of this Section 6.5(e) (provided, including by obtaining injunctions that references to prevent the four Business Day period above shall be deemed to refer to a three Business Day period in connection with the delivery of any breaches such new notice); and
(v) at the end of such agreements and to enforce specifically the terms and provisions thereof four Business Day period described in each case except to the extent that clause (iv) (or three Business Day period, as applicable), the Board of Directors of Parent again determines in good faith, after consultation with a financial advisor of nationally recognized reputation and outside legal counsel, and taking into account any adjustment or modification to the terms and conditions of this Agreement proposed by the Company, that taking the Parent Acquisition Proposal continues to constitute a Parent Superior Offer and that the failure to effect a Parent Change of Recommendation, or terminate this Agreement pursuant to Section 8.1(g), with respect to such action Parent Superior Offer would be reasonably likely to result in a breach be inconsistent with the exercise of its the Board of Directors’ fiduciary duties under applicable LawsLaw.
(f) Parent agrees that any breach of this Section 6.5 by any Representative of Parent or any Subsidiary of Parent who is a director, officer or employee of Parent or any Subsidiary of Parent or who is (i) a senior-level employee or officer (i.e., a managing director (or similar title) or more senior) of any financial advisor or investment bank or (ii) a partner of any law firm, in either case retained by Parent or any Subsidiary of Parent, shall be deemed to be a breach of this Section 6.5 by Parent for all purposes of this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Fitlife Brands, Inc.), Merger Agreement (iSatori, Inc.)
Non-Solicitation by Parent. (a) Parent agrees that neither it nor any Subsidiary of Parent, nor any of their respective officers, directors or employees, shallshall not, and that it shall use cause its reasonable best efforts to cause directors and Subsidiaries not to, and shall instruct its and their respective Representatives not to, directly or indirectly (i) initiate, seek or solicit, or knowingly encourage or facilitate (including by way of furnishing non-public information) or take any other action that is reasonably expected to (and shall not authorize or give permission to its and their respective Representatives to)promote, directly or indirectly: (i) solicit, initiate, seek any inquiries or knowingly encourage the making, making or submission or announcement of any proposal that constitutes, or would reasonably be expected to lead to, a Parent Acquisition Proposal, ; (ii) furnish participate or engage in discussions (except to notify a Person that makes an inquiry or offer with respect to a Parent Acquisition Proposal of the existence of the provisions of this Section 7.05 or to clarify whether any nonpublic such inquiry, offer or proposal constitutes a Parent Acquisition Proposal) or negotiations with, or disclose any non-public information regarding or data relating to, Parent or any of its Subsidiaries or afford access to the properties, books or records of Parent or any of its Subsidiaries to any Person (other than the Company) in connection with or in response to a Parent Acquisition Proposal, (iii) continue or otherwise engage or participate in any discussions or negotiations with any Person (other than the Company) with respect to any Parent Acquisition Proposal, (iv) except in connection with a Parent Change of Recommendation pursuant to Section 6.5(e), approve, endorse or recommend any Parent Acquisition Proposal or (v) except in connection with a Parent Change of Recommendation pursuant to Section 6.5(e), enter into any letter of intent, arrangement or understanding relating to any Parent Acquisition Transaction (other than a confidentiality agreement as contemplated by this Section 6.5(a)); provided, however, that this Section 6.5 shall not prohibit (A) the Board of Directors of Parent, directly or indirectly through any officer, employee or Representative of Parent or any of its Subsidiaries, prior to obtaining the Parent Stockholder Approval, from furnishing nonpublic information regarding Parent or any of its Subsidiaries to, or entering into or participating in discussions or negotiations with, any Person in response to an unsolicited, bona fide written Parent Acquisition Proposal that the Board of Directors of Parent concludes in good faith, after consultation with its financial advisors, constitutes has made or could reasonably be expected to result make, or in connection with, a Parent Superior Offer if (1) such Parent Acquisition Proposal did not result from a material breach of this Section 6.5, (2) prior thereto Parent has given the Company the notice required by Section 6.5(b) and (3) Parent furnishes any nonpublic information provided to the maker of the Parent Acquisition Proposal only pursuant to a confidentiality agreement between Parent and such Person containing customary terms and conditions substantially similar to those contained in the Confidentiality AgreementProposal; or (Biii) Parent from complying enter into any agreement, including any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement or other similar agreement, with Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard respect to any a Parent Acquisition Proposal (it being understood that any such disclosure that constitutes a other than an Acceptable Parent Change of Recommendation shall be subject Confidentiality Agreement permitted pursuant to the provisions of this Section 6.5 with respect thereto).
(b) Parent shall promptly, and in no event later than twenty-four (24) hours, after its receipt of any Parent Acquisition Proposal, or any request for nonpublic information relating to Parent or any of its Subsidiaries in connection with a Parent Acquisition Proposal, advise the Company orally and in writing of such Parent Acquisition Proposal or request (including providing the identity of the Person making or submitting such Parent Acquisition Proposal or request, and, (i) if it is in writing, a copy of such Parent Acquisition Proposal and any related draft agreements or (ii) if it is oral, a reasonably detailed summary thereof that is made or submitted by any Person during the period between the date hereof and the Closing7.05). Parent shall keep the Company informed on a prompt basis with respect to any change to the material terms of any such Parent Acquisition Proposal (and, in the case of a change of the amount of consideration being offered, in no event later than twenty-four (24) hours following any such change), including providing the Company with a copy of any draft agreements and modifications thereof.
(c) Upon the execution of this Agreement, Parent shall, and shall cause its Subsidiaries and its and their respective officers, directors and employeesto, and shall use its reasonable best efforts to cause instruct its and their respective Representatives to, immediately cease and terminate cause to be terminated any existing activitiessolicitation, discussions encouragement, discussion or negotiations between Parent negotiation with or any of its Subsidiaries or any of their respective officers, directors, employees or Representatives and involving any Person (other than the CompanyCompany and its Affiliates) that relate conducted heretofore by Parent or any Subsidiary thereof or any of its or their respective Representatives, with respect to any a Parent Acquisition Proposal or which could reasonably be expected to lead to a Parent Acquisition Proposal, and, in connection therewith, Parent shall immediately discontinue access by any Person (other than Company and its Affiliates) to any data room (virtual or otherwise) established by Parent or its Representatives for such purpose. Within two (2) Business Days from the date hereof, Parent shall use reasonable best efforts to obtain request the prompt return or destruction of all confidential, non-public information provided to Third Parties that have entered into confidentiality agreements with Parent or any confidential Subsidiary thereof or who have otherwise been provided with confidential, non-public information previously furnished since January 1, 2022 relating to such Persons within twelve (12) months of the date hereof.
(d) Except as otherwise provided in Section 6.5(e) or Section 6.5(f), none of the Parent, the Board of Directors of Parent nor any committee thereof may (i) withhold, withdraw, qualify or modify, or publicly propose to withhold, withdraw, qualify or modify, the Parent Recommendation in a manner adverse to the Company or make any other statement inconsistent with the Parent Recommendation (any of the foregoing, a “Parent Change of Recommendation”); or (ii) enter into a written definitive agreement providing for a Parent Acquisition Transaction.
(e) The Board of Directors of Parent may at any time prior Proposal. Notwithstanding anything to receipt of the contrary in this Agreement, until obtaining the Parent Stockholder Approval, Parent and the Parent Board may take any actions described in clause (Aii) effect a of this Section 7.05 with respect to Third Party if (x) Parent Change of Recommendation in respect of a Parent Acquisition Proposal; and (B) terminate this Agreement pursuant to Section 8.1(d)(iii) in order to enter into receives a written definitive agreement providing for a Parent Acquisition Transaction, if (and only if): (i) a Parent Acquisition Proposal is made to Parent by a third party, from such Third Party (and such offer is Parent Acquisition Proposal was not withdrawn; initiated, sought, solicited, knowingly encouraged or facilitated in violation of this Section 7.05) and (iiy) Parent’s such proposal constitutes, or the Parent Board of Directors determines in good faith after consultation with its financial advisors advisor and outside legal counsel that such offer constitutes proposal is or could reasonably expected to lead to, a Parent Superior OfferProposal; (iii) following consultation with outside legal counselprovided, Parent’s Board of Directors determines that the failure Parent may deliver non-public information to take such action would be reasonably likely Third Party pursuant to result in a breach of its fiduciary duties under applicable Laws; (iv) this sentence only pursuant to an Acceptable Parent provides the Company five (5) Business Days’ prior written notice of its intention to take such action, which notice shall include the information Confidentiality Agreement with respect to such Parent Superior Offer that is specified in Section 6.5(b) (it being understood that any material revision or amendment to the terms of such Parent Superior Offer shall require a new notice and, in such case, all references to five (5) Business Days Parent. Nothing contained in this Section 6.5(e7.05 shall prohibit Parent or the Parent Board from (i) shall be deemed taking and disclosing to be three the Parent Stockholders a position with respect to a Parent Acquisition Proposal pursuant to Rules 14d-9, 14e-2(a) or Item 1012(a) of Regulation M-A promulgated under the Exchange Act or (3ii) Business Days); and (v) at making any disclosure if the end of the five (5) Business Day period described in clause (iv), the Parent Board of Directors of Parent again makes the determination has determined in good faith after consultation with its outside legal counsel and financial advisors (after negotiating in good faith with the Company and its Representatives, if requested by the Company, during such five (5) Business Day period regarding any adjustments or modifications to the terms of this Agreement proposed by the Company and taking into account any such adjustments or modifications) that Parent Acquisition Proposal continues to be a Parent Superior Offer and advisor that the failure to take such action do so would be reasonably likely to result in a breach of inconsistent with its fiduciary duties under applicable Laws.
(f) The Board of Directors of the Company may, at any time prior to receipt of the Parent Stockholder Approval, effect a Parent Change of Recommendation in response to an event, change, effect, development, condition or occurrence that affects or would be reasonably likely to affect (x) the business, financial condition or continuing results of operations of Parent and its Subsidiaries, taken as a whole, or (y) the benefits of the Merger to Parent or the stockholders of Parent, in either case that is (1) material, individually or in the aggregate with any other such events, changes, effects, developments, conditions or occurrences, (2) does not involve or relate to a Parent Acquisition Proposal and (3) is not known (or the material consequences of which are not known or understood) as of the date hereof if (and only if): (i) following consultation with outside legal counsel, Parent’s Board of Directors determines that the failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws; (ii) Parent provides the Company five (5) Business Days’ prior written notice of its intention to take such action, which notice shall include the information with respect to any such events, changes, effects, developments, conditions or occurrences; and (iii) at the end of the five (5) Business Day period described in clause (ii), the Board of Directors of Parent again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (after negotiating in good faith with the Company and its Representatives, if requested by the Company, during such five (5) Business Day period regarding any adjustments or modifications to the terms of this Agreement proposed by the Company and taking into account any such adjustments or modifications) that the failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws.
(g) Notwithstanding a Parent Change of Recommendation pursuant to Section 6.5(f), Parent shall nevertheless submit this Agreement to the stockholders of Parent for the purpose of obtaining the Parent Stockholder Approval at the Parent Stockholders’ Meeting and nothing contained herein shall be deemed to relieve Parent of such obligation, unless this Agreement shall have been terminated in accordance with its terms prior obligations to the Parent Stockholders’ Meeting.
(h) The parties agree ; provided, that this sentence shall not permit the Parent Board to make a Parent Change of Adverse Recommendation effected in accordance with Section 6.5(e) or Section 6.5(f) shall not in and of itself violate any other provision of this Agreement.
(i) During the period from the date of this Agreement through the Effective TimeChange, neither Parent nor any of its Subsidiaries shall terminate, amend, modify or waive any provision of any confidentiality agreement to which it is a party relating to a proposed business combination involving Parent or any standstill agreement to which it is a party unless the Board of Directors of Parent determines in good faith, after consultation with outside legal counsel, that failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws. During such period, Parent or its Subsidiaries, as the case may be, shall enforce, to the fullest extent permitted under applicable Law, the provisions of any such agreement, including by obtaining injunctions to prevent any breaches of such agreements and to enforce specifically the terms and provisions thereof in each case except to the extent that the Board of Directors of Parent determines in good faith, after consultation with outside legal counsel, that taking such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Lawspermitted by Section 7.06(a).
Appears in 2 contracts
Samples: Merger Agreement (Nuvasive Inc), Agreement and Plan of Merger (Globus Medical Inc)
Non-Solicitation by Parent. (a) Parent agrees that neither it nor any Subsidiary of Parentits Subsidiaries, nor any of their respective officers, directors or employees, shall, and that it shall use its reasonable best efforts to cause its and their respective Representatives not to (and shall not authorize or give permission to its and their respective Representatives to), directly or indirectly: (i) solicit, initiate, seek or knowingly encourage the making, submission or announcement of any Parent Acquisition Proposal, (ii) furnish any nonpublic information regarding Parent or any of its Subsidiaries to any Person (other than the Company) in connection with or in response to a Parent Acquisition Proposal, (iii) continue or otherwise engage or participate in any discussions or negotiations with any Person (other than the Company) with respect to any Parent Acquisition Proposal, (iv) except in connection with a Parent Change of Recommendation pursuant to Section 6.5(e6.7(e), approve, endorse or recommend any Parent Acquisition Proposal Proposal, or (v) except in connection with a Parent Change of Recommendation pursuant to Section 6.5(e6.7(e), enter into any letter of intent, arrangement arrangement, agreement or understanding relating to any Parent Acquisition Transaction (other than a confidentiality agreement as contemplated by this Section 6.5(a))Transaction; provided, however, that this Section 6.5 6.7 shall not prohibit (A) the Board of Directors of ParentParent or any committee thereof, directly or indirectly through any officer, employee or Representative of Parent or any of its SubsidiariesRepresentative, prior to obtaining the Parent Stockholder Approval, from furnishing nonpublic information regarding Parent or any of its Subsidiaries to, or entering into or participating in discussions or negotiations with, any Person in response to an unsolicited, bona fide written Parent Acquisition Proposal that the Board of Directors of Parent or any committee thereof concludes in good faith, after consultation with its outside legal counsel and a financial advisorsadvisor, constitutes or could would reasonably be expected to result in a Parent Superior Offer if (1) the Board of Directors of Parent or any committee thereof concludes in good faith, after consultation with its outside legal counsel, that the failure to take such action with respect to such Parent Acquisition Proposal would be reasonably likely to result in a breach of its fiduciary duties under applicable Law, (2) such Parent Acquisition Proposal did not result from a material breach of this Section 6.56.7, (23) prior thereto Parent has given the Company the notice required by Section 6.5(b) 6.7(b), and (34) Parent furnishes any nonpublic information provided to the maker of the Parent Acquisition Proposal only pursuant to a confidentiality agreement between Parent and such Person containing customary terms and conditions substantially similar to that in the aggregate are not materially less restrictive than those contained in the Confidentiality Non-Disclosure Agreement; or (B) Parent from complying with Rules Rule 14d-9 and or Rule 14e-2 promulgated under the Exchange Act with regard to any Parent Acquisition Proposal (it being understood that Proposal, including any such so called “stop, look and listen” communications, or making any other statement or disclosure that constitutes Parent determines in good faith, after consultation with its outside legal counsel, that the failure of Parent to make such statement or disclosure would reasonably be expected to be a violation of applicable Law; provided that the Board of Directors of Parent may make a Parent Change of Recommendation shall be subject to the provisions of this only in accordance with Section 6.5 with respect thereto6.7(e).
(b) Parent shall promptly, and in no event later than twenty-four (24) hours, hours after its receipt of any Parent Acquisition Proposal, or any request for nonpublic information relating to Parent or any of its Subsidiaries in connection with a Parent Acquisition Proposal, advise the Company orally and in writing of such Parent Acquisition Proposal or request (including providing the identity of the Person making or submitting such Parent Acquisition Proposal or request, and, (i) if it is in writing, a copy of such Parent Acquisition Proposal and any related draft agreements or and (ii) if it is oral, a reasonably detailed summary thereof that is made or submitted by any Person during the period between the date hereof and the ClosingClosing Date). Parent shall keep the Company informed on a prompt basis with respect to any change to the material terms of any such Parent Acquisition Proposal (and, in the case of a change of the amount of consideration being offered, and in no event later than twenty-four (24) hours following any such change), including providing the Company with a copy of any draft agreements and modifications thereof.
(c) Upon the execution of this Agreement, Parent shall, and shall cause its Subsidiaries and its and their respective officers, directors and employees, and shall use its reasonable best efforts to cause its and their respective Representatives to, immediately cease and terminate any existing activities, discussions or negotiations between Parent or any of its Subsidiaries or any of their respective officers, directors, employees or Representatives and any Person (other than the Company) that relate to any Parent Acquisition Proposal and shall use reasonable best efforts to obtain the prompt return or destruction of any confidential information previously furnished to such Persons with respect thereto within twelve (12) months of prior to the date hereof.
(d) Except as otherwise provided in Section 6.5(e) or Section 6.5(f6.7(e), none of the Parent, the Board of Directors of Parent nor (or any committee thereof thereof) may not (i) withhold, withdraw, qualify withdraw or modify, or publicly propose to withhold, withdraw, qualify withdraw or modify, the Parent Recommendation in a manner adverse to the Company or make any other statement statement, filing or release, in connection with the Parent Stockholders Meeting or otherwise, inconsistent with the Parent Recommendation Recommendation, (ii) approve, endorse or recommend any Parent Acquisition Proposal (any of the foregoingforegoing set forth in clauses (i) and (ii), a “Parent Change of Recommendation”); ) or (iiiii) enter into a written definitive agreement providing for a Parent Acquisition Transaction.
(e) The Board of Directors of Parent or any committee thereof may at any time prior to receipt of the Parent Stockholder Approval, Approval (Ai) effect a Parent Change of Recommendation in respect of a Parent Acquisition Proposal; and , and/or (Bii) if it elects to do so in connection with or following a Parent Change of Recommendation, terminate this Agreement pursuant to Section 8.1(d)(iii8.1(c)(iii) in order to enter into a written definitive agreement providing for a Parent Acquisition Transaction, if (and only if): (iA) a Parent Acquisition Proposal is made to Parent by a third party, and such offer is not withdrawn; (iiB) Parent’s the Board of Directors of Parent or such committee thereof determines in good faith after consultation with its outside legal counsel and a financial advisors advisor that such offer constitutes a Parent Superior Offer; (iiiC) following consultation with outside legal counsel, Parent’s the Board of Directors of Parent or such committee thereof determines that the failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable LawsLaw; (ivD) Parent provides the Company five (5) Business Days’ prior written notice of its intention to take such action, which notice shall include the information with respect to such Parent Superior Offer that is specified in Section 6.5(b6.7(b) (it being understood that any material revision or amendment to the terms of such Parent Superior Offer shall require a new notice and, in such case, all references to five (5) Business Days in this Section 6.5(e6.7(e) shall be deemed to be three two (32) Business Days); and (vE) at the end of the five (5) Business Day period described in clause (ivD), the Board of Directors of Parent or such committee thereof again makes the determination in good faith after consultation with its outside legal counsel and a financial advisors advisor (after negotiating in good faith with the Company and its Representatives, Representatives if requested by the Company, during such five (5) Business Day period regarding any adjustments or modifications to the terms of this Agreement proposed by the Company and taking into account any such adjustments or modifications) that Parent Acquisition Proposal continues to be a Parent Superior Offer and that the failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws.
(f) The Board of Directors of the Company may, at any time prior to receipt of the Parent Stockholder Approval, effect a Parent Change of Recommendation in response to an event, change, effect, development, condition or occurrence that affects or would be reasonably likely to affect (x) the business, financial condition or continuing results of operations of Parent and its Subsidiaries, taken as a whole, or (y) the benefits of the Merger to Parent or the stockholders of Parent, in either case that is (1) material, individually or in the aggregate with any other such events, changes, effects, developments, conditions or occurrences, (2) does not involve or relate to a Parent Acquisition Proposal and (3) is not known (or the material consequences of which are not known or understood) as of the date hereof if (and only if): (i) following consultation with outside legal counsel, Parent’s Board of Directors determines that the failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws; (ii) Parent provides the Company five (5) Business Days’ prior written notice of its intention to take such action, which notice shall include the information with respect to any such events, changes, effects, developments, conditions or occurrences; and (iii) at the end of the five (5) Business Day period described in clause (ii), the Board of Directors of Parent again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (after negotiating in good faith with the Company and its Representatives, if requested by the Company, during such five (5) Business Day period regarding any adjustments or modifications to the terms of this Agreement proposed by the Company and taking into account any such adjustments or modifications) that the Parent Acquisition Proposal continues to be a Parent Superior Offer and, after consultation with outside legal counsel, that the failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable LawsLaw.
(g) Notwithstanding a Parent Change of Recommendation pursuant to Section 6.5(f), Parent shall nevertheless submit this Agreement to the stockholders of Parent for the purpose of obtaining the Parent Stockholder Approval at the Parent Stockholders’ Meeting and nothing contained herein shall be deemed to relieve Parent of such obligation, unless this Agreement shall have been terminated in accordance with its terms prior to the Parent Stockholders’ Meeting.
(h) The parties agree that a Parent Change of Recommendation effected in accordance with Section 6.5(e) or Section 6.5(f) shall not in and of itself violate any other provision of this Agreement.
(if) During the period from the date of this Agreement through the Effective Time, neither Parent nor any of its Subsidiaries shall terminate, amend, modify or waive any provision of any confidentiality agreement to which it is a party relating to a proposed business combination involving Parent or any standstill agreement to which it is a party unless the Board of Directors of Parent or any committee thereof determines in good faith, after consultation with outside legal counsel, that failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable LawsLaw. During such period, Parent or its Subsidiaries, as the case may be, shall enforce, to the fullest extent permitted under applicable Law, the provisions of any such agreement, including by obtaining injunctions to prevent any breaches of such agreements and to enforce specifically the terms and provisions thereof in each case except to the extent that the Board of Directors of Parent or any committee thereof determines in good faith, after consultation with outside legal counsel, that taking such action would be reasonably likely to result in a breach of its fiduciary duties under applicable LawsLaw.
Appears in 2 contracts
Samples: Merger Agreement (S1 Corp /De/), Merger Agreement (Fundtech LTD)
Non-Solicitation by Parent. (a) Parent agrees that neither it nor any Subsidiary of Parent, nor any of their respective officers, directors or employees, shall, and that it shall use its reasonable best efforts to cause its and their respective Representatives not to (and shall not authorize or give permission to its and their respective Representatives to), directly or indirectly: (i) solicit, initiate, seek or knowingly encourage or facilitate the making, submission or announcement of any proposal that constitutes, or would reasonably be expected to lead to, a Parent Acquisition Proposal, (ii) furnish any nonpublic non-public information regarding Parent or any of its Subsidiaries to, or afford access to the properties, books and records of Parent to, any Person person (other than the Company) ), in connection with or in response to a Parent Acquisition Proposal, (iii) continue or otherwise engage or participate in any discussions or negotiations with any Person person (other than the Company) with respect to any Parent Acquisition Proposal, (iv) except in connection with a Parent Change of Recommendation pursuant to Section 6.5(e), approve, endorse or recommend any Parent Acquisition Proposal or (v) except in connection with a Parent Change of Recommendation pursuant to Section 6.5(e), enter into any letter of intent, arrangement memorandum of understanding, merger agreement, acquisition agreement or understanding relating to any other agreement providing for any Parent Acquisition Transaction (other than a confidentiality agreement as contemplated by except where Parent has validly terminated this Agreement pursuant to Section 6.5(a7.1(j)); provided, however, that this Section 6.5 5.5 shall not prohibit (A) Parent, or the Board of Directors of Parent, directly or indirectly through any officer, employee or Representative of Parent or any of its SubsidiariesRepresentative, prior to obtaining the Parent Stockholder Approval, from furnishing nonpublic information regarding Parent or taking any of its Subsidiaries to, the actions described in clauses (ii) or entering into or participating in discussions or negotiations with, any Person (iii) above in response to an unsolicited, bona fide written Parent Acquisition Proposal that the Board of Directors of Parent concludes in good faith, after consultation with its financial advisors, constitutes or could is reasonably be expected to result in a Parent Superior Offer if (1) the Board of Directors of Parent concludes in good faith, after consultation with its outside legal counsel, that the failure to take such action with respect to such Parent Acquisition Proposal would be reasonably likely to be inconsistent with the exercise by the Board of Directors of its fiduciary duties under applicable Laws, (2) such Parent Acquisition Proposal did not result from a material breach of this Section 6.55.5(a), (23) prior thereto Parent has given gives to the Company the notice required by Section 6.5(b) 5.5(b), and (34) Parent furnishes any nonpublic non-public information provided to, and affords access to the properties, books and records of Parent to, the maker of the Parent Acquisition Proposal only pursuant to a confidentiality agreement between Parent and such Person containing customary person on substantially the same terms with respect to confidentiality and conditions substantially similar to those contained use of “Evaluation Material” (as defined in the Confidentiality Agreement) as the Confidentiality Agreement; or (B) Parent from complying with Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to any Parent Acquisition Proposal (it being understood Proposal; provided, however, that compliance with such rules shall not in any way limit or modify the effect that any action taken pursuant to such disclosure that constitutes a Parent Change of Recommendation shall be subject to the provisions rules has under any other provision of this Section 6.5 with respect thereto)Agreement.
(b) Parent shall promptly, and in no event later than twenty-four (24) hours, hours after its receipt of any Parent Acquisition Proposal, or any request for nonpublic information relating to Parent or any of its Subsidiaries in connection with a Parent Acquisition Proposal, advise the Company orally and in writing of such Parent Acquisition Proposal or request (including providing the identity of the Person person making or submitting such Parent Acquisition Proposal or request, and, (ix) if it is in writing, a an unredacted copy of such Parent Acquisition Proposal and any related draft agreements or and (iiy) if it is oral, a reasonably detailed summary thereof that is made or submitted by any Person person during the period between the date hereof and the Closing). Parent shall keep the Company informed in all material respects on a prompt basis with respect to any change to the material terms of of, any such Parent Acquisition Proposal (and, in the case of a change of the amount of consideration being offered, and in no event later than twenty-four (24) hours following any such change), including providing . Parent agrees that it shall promptly provide to the Company any information concerning itself or its Subsidiaries provided to any other person in connection with a copy of any draft agreements and modifications thereofParent Acquisition Proposal which was not previously provided (or made available) to the Company.
(c) Upon Immediately following the execution of this Agreement, Parent shall, and shall cause its Subsidiaries and its and their respective officers, directors and employees, and shall use its reasonable best efforts to cause its and their respective Representatives to, immediately cease and terminate any discussions existing activities, discussions or negotiations as of the date of this Agreement between Parent or any of its Subsidiaries or any of their respective officers, directors, employees or Representatives and any Person person (other than the Company) that relate to any Parent Acquisition Proposal Proposal. In addition, Parent shall (i) promptly (and shall in any event within 24 hours) request the prompt return or destruction of all confidential information previously furnished to any such person or its Representatives and use reasonable best efforts to obtain the prompt return or the destruction of any such confidential information and (iii) immediately terminate all physical and electronic data room access previously furnished granted to any such Persons within twelve (12) months of the date hereofperson or its Representatives.
(d) Except as otherwise provided in Section 6.5(e5.5(e) or Section 6.5(f5.5(f), none of the Parent, neither the Board of Directors of Parent nor any committee thereof may (i) withhold, withdraw, qualify withdraw or modify, or publicly propose to withhold, withdraw, qualify withdraw or modify, the Parent Recommendation in a manner adverse to the Company or make (ii) recommend, adopt or approve, or propose publicly to recommend, adopt or approve, any other statement inconsistent with the Parent Recommendation Acquisition Proposal (any of the foregoingaction described in this Section 5.5(d), a “Parent Change of Recommendation”); or (ii) enter into a written definitive agreement providing for a Parent Acquisition Transaction.
(e) The Notwithstanding anything in this Agreement to the contrary, with respect to a Parent Acquisition Proposal, the Board of Directors of Parent may at any time prior to receipt of the Parent Stockholder Approval, (A) effect make a Parent Change of Recommendation in respect of a Parent Acquisition Proposal; and (B) or terminate this Agreement pursuant to Section 8.1(d)(iii) in order to enter into a written definitive agreement providing for a Parent Acquisition Transaction7.1(j), if (and only if): (i) a written Parent Acquisition Proposal (that did not result from a breach of Section 5.4(a)) is made to Parent by a third party, and such offer Parent Acquisition Proposal is not withdrawn; (ii) Parent’s Board of Directors determines in good faith after consultation with its financial advisors that such offer Parent Acquisition Proposal constitutes a Parent Superior Offer; (iii) following consultation with outside legal counsel, Parent’s Board of Directors determines that the failure to take such action make a Parent Change of Recommendation or terminate this Agreement pursuant to Section 7.1(j) would be reasonably likely to result in a breach be inconsistent with the exercise of its fiduciary duties under applicable Laws; (iv) Parent provides the Company five (5) Business Daysbusiness days’ prior written notice of its intention to take such action, which notice shall include all of the information with respect to such Parent Superior Offer that is specified in Section 6.5(b5.5(b); (v) during such five (it being understood that any material revision or amendment 5) day notice period, Parent and its Representatives negotiate with the Company in good faith (to the extent the Company desires to so negotiate) to make adjustments in the terms and conditions of this Agreement so that such Parent Superior Offer shall require ceases to constitute (in the good faith judgment of the Board of Directors of Parent after consultation with Parent’s financial advisors and outside legal counsel) a new notice and, in Parent Superior Offer relative to such case, all references to five (5) Business Days in this Section 6.5(e) shall be deemed to be three (3) Business Days)adjusted terms and conditions; and (vvi) at the end of the five (5) Business Day business day period described in clause (iv), the Board of Directors of Parent again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (after negotiating in good faith with the Company and its Representatives, if requested by the Company, during such five (5) Business Day period regarding taking into account any adjustments adjustment or modifications to modification of the terms of this Agreement proposed by the Company and taking into account any such adjustments or modificationsCompany) that the Parent Acquisition Proposal continues to be a Parent Superior Offer and that the failure to take such action make the Parent Change of Recommendation or terminate this Agreement pursuant to Section 7.1(j) would be reasonably likely to result in a breach be inconsistent with the exercise of its fiduciary duties under applicable Laws.
(f) The Board of Directors of . If during the Company may, at any time prior to receipt of the Parent Stockholder Approval, effect a Parent Change of Recommendation in response to an event, change, effect, development, condition or occurrence that affects or would be reasonably likely to affect (x) the business, financial condition or continuing results of operations of Parent and its Subsidiaries, taken as a whole, or (y) the benefits of the Merger to Parent or the stockholders of Parent, in either case that is (1) material, individually or in the aggregate with any other such events, changes, effects, developments, conditions or occurrences, (2) does not involve or relate to a Parent Acquisition Proposal and (3) is not known (or the material consequences of which are not known or understood) as of the date hereof if (and only if): (i) following consultation with outside legal counsel, Parent’s Board of Directors determines that the failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws; (ii) Parent provides the Company aforementioned five (5) Business Days’ prior day notice period, any material revisions are made to the Parent Superior Offer (it being agreed and understood that any change in the amount or form of consideration included in the Parent Superior Offer shall be deemed to be a “material revision”), Parent shall deliver a new written notice of its intention to take such actionnotice, which notice shall include the information with respect to the revised Parent Superior Offer that is specified in Section 5.5 to the Company within 24 hours thereof, and such notice period shall commence anew (except that such new notice period shall be three (3) days) and Parent shall comply with the requirements of this Section 5.5(e) with respect to such new written notice. Notwithstanding anything to the contrary contained herein, neither Parent nor any such eventsSubsidiary of Parent shall enter into any agreement in respect of a Parent Acquisition Transaction (other than a confidentiality agreement as contemplated herein) unless this Agreement has been terminated in accordance with its terms.
(f) Nothing in this Agreement shall prohibit or restrict the Board of Directors of Parent, changesin circumstances not involving or relating to a Parent Acquisition Proposal, effects, developments, conditions from effecting a Parent Change of Recommendation if (i) in response to (A) a material development or occurrences; and (iii) at change in circumstances occurring or arising after the end of the five (5) Business Day period described in clause (ii), date hereof that was neither known to the Board of Directors of Parent again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (after negotiating in good faith with the Company and its Representatives, if requested by the Company, during such five (5) Business Day period regarding any adjustments or modifications to the terms of this Agreement proposed by the Company and taking into account any such adjustments or modifications) that the failure to take such action would be nor reasonably likely to result in a breach of its fiduciary duties under applicable Laws.
(g) Notwithstanding a Parent Change of Recommendation pursuant to Section 6.5(f), Parent shall nevertheless submit this Agreement to the stockholders of Parent for the purpose of obtaining the Parent Stockholder Approval foreseeable at the Parent Stockholders’ Meeting and nothing contained herein shall be deemed to relieve Parent of such obligation, unless this Agreement shall have been terminated in accordance with its terms prior to the Parent Stockholders’ Meeting.
(h) The parties agree that a Parent Change of Recommendation effected in accordance with Section 6.5(e) or Section 6.5(f) shall not in and of itself violate any other provision of this Agreement.
(i) During the period from the date of this Agreement through (and which change or development does not relate to a Parent Acquisition Proposal), or (B) the Effective Time, neither Parent nor Company or any of its Significant Subsidiaries shall terminatecommencing (or there having been commenced against the Company or any of its Significant Subsidiaries an (“Involuntary Company Filing Event”), amendand, modify in such case, the involuntary claim, action or waive proceeding has not been dismissed within forty (40) days) any provision of claim, action or proceeding under any confidentiality agreement to which it is a party applicable Laws relating to bankruptcy, insolvency, reorganization, or other relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it as bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition, or other relief with respect to it or its debts or seeking appointment of a proposed business combination involving Parent receiver, trustee, custodian, conservator, or other similar official for it or for all or any standstill agreement to which it is substantial part of its assets, or any of the Company or any of its Significant Subsidiaries making a party unless general assignment for the benefit of its creditors, the Board of Directors of Parent determines in good faith, faith (after consultation with outside legal counsel, ) that failure to take such action effect a Parent Change of Recommendation would be reasonably likely to result in a breach be inconsistent with the exercise by the Board of Directors of its fiduciary duties under applicable Laws. During such period, (ii) Parent or its Subsidiarieshas notified the Company in writing, as the case may be, shall enforce, to the fullest extent permitted under applicable Law, the provisions of any such agreement, including by obtaining injunctions to prevent any breaches at least five (5) business days in advance of such agreements Parent Change of Recommendation, that it is considering taking such action and to enforce specifically specifying in reasonable detail the reasons therefor and (iii) during such five (5) business day period Parent has considered, and, at the reasonable request of the Company, engaged in discussions with the Company regarding, any adjustments in writing by the Company in the terms and provisions thereof conditions of this Agreement, should the Company propose any such adjustments.
(g) As used in each case except to the extent that the Board of Directors of Parent determines in good faith, after consultation with outside legal counsel, that taking such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws.this Agreement:
Appears in 1 contract
Samples: Merger Agreement (KLX Energy Services Holdings, Inc.)
Non-Solicitation by Parent. (a) Beginning on the date hereof and continuing until the earlier of the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Article VII, Parent agrees that neither it nor any Subsidiary of Parent, nor any of their respective officers, directors or employees, shall, will not and that it shall use its reasonable best efforts to cause its and their respective Representatives not to (and shall will not authorize or give permission to permit any of its and their respective Representatives to)Subsidiaries or any Representative of Parent or its Subsidiaries, directly or indirectly: , to, (i) solicit, initiate, seek knowingly encourage, induce or knowingly encourage facilitate the making, submission or announcement of any Parent Acquisition Proposal or take any action that would reasonably be expected to lead to an Acquisition Proposal, ; (ii) furnish any nonpublic information regarding Parent or any of its Subsidiaries to any Person (other than the Company) in connection with or in response to a Parent an Acquisition Proposal or an inquiry or indication of interest that could lead to an Acquisition Proposal, ; (iii) continue or otherwise engage or participate in any discussions or negotiations with any Person (other than the Company) with respect to any Parent Acquisition Proposal, ; (iv) except in connection with a Parent Change of Recommendation pursuant to Section 6.5(e), approve, endorse or recommend any Parent Acquisition Proposal or (v) except in connection with a Parent Change of Recommendation pursuant to Section 6.5(e), enter into any letter of intent, arrangement intent or understanding similar document or any agreement contemplating or otherwise relating to any Parent Acquisition Transaction (other than a confidentiality agreement as contemplated by this Section 6.5(a)an Acceptable Parent Confidentiality Agreement); provided, however, that this Section 6.5 shall not prohibit (A) the Board of Directors of Parent, directly or indirectly through any officer, employee or Representative of Parent or any of its Subsidiaries, prior to obtaining the adoption of this Agreement by the Parent Stockholder Approval, this Section 5.13(a) will not prohibit Parent from furnishing nonpublic information regarding Parent or any of and its Subsidiaries to, or entering into or participating in discussions or negotiations with, any Person in response to an unsolicited, any bona fide written Parent Acquisition Proposal that that, after consultation with a financial advisor and outside legal counsel, Parent’s board of directors determines in good faith is, or would reasonably be expected to result in, a Parent Superior Offer (and is not withdrawn) if (1) such Acquisition Proposal did not result from a breach of this Section 5.13(a); (2) the Board board of Directors directors of Parent concludes in good faith, after consultation with having taken into account the advice of its financial advisorsoutside legal counsel, constitutes or could reasonably be expected that, in light of such Acquisition Proposal and the terms of this Agreement, failure to take such action would result in a Parent Superior Offer if (1) such Parent Acquisition Proposal did not result from a material breach of this Section 6.5, its fiduciary obligations to Parent’s stockholders under applicable Legal Requirements; (3) at least two (2) Business Days prior thereto to furnishing any such information to, or entering into discussions with, such Person, Parent has given the gives Company the written notice required by Section 6.5(b) and (3) Parent furnishes any nonpublic information provided to the maker of the identity of such Person, the terms and conditions of any proposals or offers (including, if applicable, copies of any written requests, proposals or offers, including proposed agreements) made thereby and of Parent’s intention to furnish information to, or enter into discussions with, such Person, and Parent Acquisition Proposal only pursuant receives from such Person an executed confidentiality agreement on terms no less favorable to a Parent than the confidentiality agreement between Parent and Company and containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person containing by or on behalf of Parent as well as customary terms “standstill” provisions (an, “Acceptable Parent Confidentiality Agreement”) and conditions (4) substantially similar contemporaneous with furnishing any such information to those contained such Person, Parent furnishes such nonpublic information to Company (to the extent such nonpublic information has not been previously furnished by Parent to Company). Without limiting the generality of the foregoing, Parent acknowledges and agrees that in the Confidentiality Agreement; event any Representative of Parent (or its Subsidiaries), whether or not such Representative is purporting to act on behalf of Parent (B) or its Subsidiaries), takes any action that, if taken by Parent from complying with Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to any Parent Acquisition Proposal (it being understood that any such disclosure that constitutes or its Subsidiaries), would constitute a Parent Change of Recommendation shall be subject to the provisions breach of this Section 6.5 with respect thereto)5.13, the taking of such action by such Representative will be deemed to constitute a breach of this Section 5.13 by Parent for purposes of this Agreement.
(b) Parent shall promptly, will promptly (and in no event later than twenty-four (24) hours, 48 hours after its receipt of any Parent Acquisition Proposal, any inquiry or indication of interest that could lead to an Acquisition Proposal or any request for nonpublic information) advise Company orally and in writing of any Acquisition Proposal, any inquiry or indication of interest that could lead to an Acquisition Proposal or any request for nonpublic information relating to Parent or any of its Subsidiaries in connection with a Parent Acquisition Proposal, advise the Company orally and in writing of such Parent Acquisition Proposal or request (including providing the identity of the Person making or submitting such Parent Acquisition Proposal Proposal, inquiry, indication of interest or request, and, (ithe material terms thereof and copies of any written material submitted therewith) if it is in writing, a copy of such Parent Acquisition Proposal and any related draft agreements or (ii) if it is oral, a reasonably detailed summary thereof that is made or submitted by any Person during the period between the date hereof and the Closing)Pre-Closing Period. Parent shall will keep the Company informed on a prompt basis in all material respects with respect to any change to the material terms status of any such Parent Acquisition Proposal (andProposal, in the case inquiry, indication of a change of the amount of consideration being offered, in no event later than twenty-four (24) hours following interest or request and any such change), including providing the Company with a copy modification or proposed modification thereto and shall deliver copies of any draft agreements and modifications thereofwritten material submitted therewith.
(c) Upon the execution of this Agreement, Parent shall, and shall cause its Subsidiaries and its and their respective officers, directors and employees, and shall use its reasonable best efforts to cause its and their respective Representatives to, will immediately cease and terminate cause to be terminated any existing activities, discussions with any Person that relate to any Acquisition Proposal and will promptly request from each person that has executed a confidentiality agreement in connection with its consideration of making an Acquisition Proposal prior to the date hereof to return or negotiations between Parent destroy (as provided in the terms of such confidentiality agreement) all confidential information concerning Company or any of its Subsidiaries or any of their respective officers, directors, employees or Representatives and any Person (other than the Company) that relate to any Parent Acquisition Proposal promptly terminate all physical and shall use reasonable best efforts to obtain the prompt return or destruction of any confidential information electronic data access previously furnished granted to such Persons within twelve (12) months of the date hereofperson.
(d) Except as otherwise provided in Section 6.5(e) or Section 6.5(f), none of the Parent, the Board of Directors of Parent nor any committee thereof may (i) withhold, withdraw, qualify or modify, or publicly propose to withhold, withdraw, qualify or modify, the Parent Recommendation in a manner adverse to the Company or make any other statement inconsistent with the Parent Recommendation (any of the foregoing, a “Parent Change of Recommendation”); or (ii) enter into a written definitive agreement providing for a Parent Acquisition Transaction.
(e) The Board of Directors of Parent may at any time prior to receipt of the Parent Stockholder Approval, (A) effect a Parent Change of Recommendation in respect of a Parent Acquisition Proposal; and (B) terminate this Agreement pursuant to Section 8.1(d)(iii) in order to enter into a written definitive agreement providing for a Parent Acquisition Transaction, if (and only if): (i) a Parent Acquisition Proposal is made to Parent by a third party, and such offer is not withdrawn; (ii) Parent’s Board of Directors determines in good faith after consultation with its financial advisors that such offer constitutes a Parent Superior Offer; (iii) following consultation with outside legal counsel, Parent’s Board of Directors determines that the failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws; (iv) Parent provides the Company five (5) Business Days’ prior written notice of its intention to take such action, which notice shall include the information with respect to such Parent Superior Offer that is specified in Section 6.5(b) (it being understood that any material revision or amendment to the terms of such Parent Superior Offer shall require a new notice and, in such case, all references to five (5) Business Days in this Section 6.5(e) shall be deemed to be three (3) Business Days); and (v) at the end of the five (5) Business Day period described in clause (iv), the Board of Directors of Parent again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (after negotiating in good faith with the Company and its Representatives, if requested by the Company, during such five (5) Business Day period regarding any adjustments or modifications to the terms of this Agreement proposed by the Company and taking into account any such adjustments or modifications) that Parent Acquisition Proposal continues to be a Parent Superior Offer and that the failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws.
(f) The Board of Directors of the Company may, at any time prior to receipt of the Parent Stockholder Approval, effect a Parent Change of Recommendation in response to an event, change, effect, development, condition or occurrence that affects or would be reasonably likely to affect (x) the business, financial condition or continuing results of operations of Parent and its Subsidiaries, taken as a whole, or (y) the benefits of the Merger to Parent or the stockholders of Parent, in either case that is (1) material, individually or in the aggregate with any other such events, changes, effects, developments, conditions or occurrences, (2) does not involve or relate to a Parent Acquisition Proposal and (3) is not known (or the material consequences of which are not known or understood) as of the date hereof if (and only if): (i) following consultation with outside legal counsel, Parent’s Board of Directors determines that the failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws; (ii) Parent provides the Company five (5) Business Days’ prior written notice of its intention to take such action, which notice shall include the information with respect to any such events, changes, effects, developments, conditions or occurrences; and (iii) at the end of the five (5) Business Day period described in clause (ii), the Board of Directors of Parent again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (after negotiating in good faith with the Company and its Representatives, if requested by the Company, during such five (5) Business Day period regarding any adjustments or modifications to the terms of this Agreement proposed by the Company and taking into account any such adjustments or modifications) that the failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws.
(g) Notwithstanding a Parent Change of Recommendation pursuant to Section 6.5(f), Parent shall nevertheless submit this Agreement to the stockholders of Parent for the purpose of obtaining the Parent Stockholder Approval at the Parent Stockholders’ Meeting and nothing contained herein shall be deemed to relieve Parent of such obligation, unless this Agreement shall have been terminated in accordance with its terms prior to the Parent Stockholders’ Meeting.
(h) The parties agree that a Parent Change of Recommendation effected in accordance with Section 6.5(e) or Section 6.5(f) shall not in and of itself violate any other provision of this Agreement.
(i) During the period from the date of this Agreement through the Effective Time, neither Parent nor any of its Subsidiaries shall terminate, amend, modify or waive any provision of any confidentiality agreement to which it is a party relating to a proposed business combination involving Parent or any standstill agreement to which it is a party unless the Board of Directors of Parent determines in good faith, after consultation with outside legal counsel, that failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws. During such period, Parent or its Subsidiaries, as the case may be, shall enforce, to the fullest extent permitted under applicable Law, the provisions of any such agreement, including by obtaining injunctions to prevent any breaches of such agreements and to enforce specifically the terms and provisions thereof in each case except to the extent that the Board of Directors of Parent determines in good faith, after consultation with outside legal counsel, that taking such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws.
Appears in 1 contract
Non-Solicitation by Parent. (a) Beginning on the date hereof and continuing until the earlier of the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Article VII, Parent agrees that neither it nor any Subsidiary of Parent, nor any of their respective officers, directors or employees, shall, will not and that it shall use its reasonable best efforts to cause its and their respective Representatives not to (and shall will not authorize or give permission to permit any of its and their respective Representatives to)Subsidiaries or any Representative of Parent or its Subsidiaries, directly or indirectly: , to (i) solicit, initiate, seek knowingly encourage, induce or knowingly encourage facilitate the making, submission or announcement of any Parent Acquisition Proposal or take any action that would reasonably be expected to lead to an Acquisition Proposal, ; (ii) furnish any nonpublic information regarding Parent or any of its Subsidiaries to any Person (other than the Company) in connection with or in response to a Parent an Acquisition Proposal or an inquiry or indication of interest that could lead to an Acquisition Proposal, ; (iii) continue or otherwise engage or participate in any discussions or negotiations with any Person (other than the Company) with respect to any Parent Acquisition Proposal, ; (iv) except in connection with a Parent Change of Recommendation pursuant to Section 6.5(e), approve, endorse or recommend any Parent Acquisition Proposal or (v) except in connection with a Parent Change of Recommendation pursuant to Section 6.5(e), enter into any letter of intent, arrangement intent or understanding similar document or any agreement contemplating or otherwise relating to any Parent Acquisition Transaction (other than a confidentiality agreement as contemplated by this Section 6.5(a)an Acceptable Parent Confidentiality Agreement); provided, however, that this Section 6.5 shall not prohibit (A) the Board of Directors of Parent, directly or indirectly through any officer, employee or Representative of Parent or any of its Subsidiaries, prior to obtaining the adoption of this Agreement by the Parent Stockholder Approval, this Section 5.13(a) will not prohibit Parent from furnishing nonpublic information regarding Parent or any of and its Subsidiaries to, or entering into or participating in discussions or negotiations with, any Person in response to an unsolicited, any bona fide written Parent Acquisition Proposal that the Board of Directors of Parent concludes in good faiththat, after consultation with its a financial advisorsadvisor and outside legal counsel, constitutes the Parent Board determines in good faith is, or could would reasonably be expected to result in in, a Parent Superior Offer (and is not withdrawn) if (1) such Parent Acquisition Proposal did not result from a material breach of this Section 6.5, 5.13(a); (2) prior thereto the Parent has given Board concludes in good faith, after having taken into account the Company advice of its outside legal counsel, that, in light of such Acquisition Proposal and the notice required by Section 6.5(b) and terms of this Agreement, failure to take such action would result in a breach of its fiduciary obligations to Parent’s stockholders under applicable Legal Requirements; (3) at least two (2) Business Days prior to furnishing any such information to, or entering into discussions with, such Person, Parent furnishes any nonpublic information provided to the maker gives Company written notice of the identity of such Person, the terms and conditions of any proposals or offers (including, if applicable, copies of any written requests, proposals or offers, including proposed agreements) made thereby and of Parent’s intention to furnish information to, or enter into discussions with, such Person, and Xxxxxx receives from such Person an executed confidentiality agreement on terms no less favorable to Parent Acquisition Proposal only pursuant to a than the confidentiality agreement between Parent and Company and containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person containing by or on behalf of Parent as well as customary terms “standstill” provisions (an “Accepted Confidentiality Agreement”), and conditions (4) substantially similar contemporaneous with furnishing any such information to those contained such Person, Parent furnishes such nonpublic information to Company (to the extent such nonpublic information has not been previously furnished by Parent to Company). Without limiting the generality of the foregoing, Xxxxxx acknowledges and agrees that in the Confidentiality Agreement; event any Representative of Parent (or its Subsidiaries), whether or not such Representative is purporting to act on behalf of Parent (B) or its Subsidiaries), takes any action that, if taken by Parent from complying with Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to any Parent Acquisition Proposal (it being understood that any such disclosure that constitutes or its Subsidiaries), would constitute a Parent Change of Recommendation shall be subject to the provisions breach of this Section 6.5 with respect thereto)5.13, the taking of such action by such Representative will be deemed to constitute a breach of this Section 5.13 by Parent for purposes of this Agreement.
(b) Parent shall promptly, will promptly (and in no event later than twenty-four (24) hours, 48 hours after its receipt of any Parent Acquisition Proposal, any inquiry or indication of interest that could lead to an Acquisition Proposal or any request for nonpublic information) advise Company orally and in writing of any Acquisition Proposal, any inquiry or indication of interest that could lead to an Acquisition Proposal or any request for nonpublic information relating to Parent or any of its Subsidiaries in connection with a Parent Acquisition Proposal, advise the Company orally and in writing of such Parent Acquisition Proposal or request (including providing the identity of the Person making or submitting such Parent Acquisition Proposal Proposal, inquiry, indication of interest or request, and, (ithe material terms thereof and copies of any written material submitted therewith) if it is in writing, a copy of such Parent Acquisition Proposal and any related draft agreements or (ii) if it is oral, a reasonably detailed summary thereof that is made or submitted by any Person during the period between the date hereof and the Closing)Pre-Closing Period. Parent shall will keep the Company informed on a prompt basis in all material respects with respect to any change to the material terms status of any such Parent Acquisition Proposal (andProposal, in the case inquiry, indication of a change of the amount of consideration being offered, in no event later than twenty-four (24) hours following interest or request and any such change), including providing the Company with a copy modification or proposed modification thereto and shall deliver copies of any draft agreements and modifications thereofwritten material submitted therewith.
(c) Upon the execution of this Agreement, Parent shall, and shall cause its Subsidiaries and its and their respective officers, directors and employees, and shall use its reasonable best efforts to cause its and their respective Representatives to, will immediately cease and terminate cause to be terminated any existing activitiesdiscussions with any Person that relate to any Acquisition Proposal and will promptly request from each Person that has executed a confidentiality agreement in connection with its consideration of making an Acquisition Proposal prior to the date hereof to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information concerning Parent, discussions or negotiations between Parent or any of its Subsidiaries Company or any of their respective officers, directors, employees or Representatives Subsidiaries and any Person (other than the Company) that relate to any Parent Acquisition Proposal promptly terminate all physical and shall use reasonable best efforts to obtain the prompt return or destruction of any confidential information electronic data access previously furnished granted to such Persons within twelve (12) months of the date hereofPerson.
(d) Except as otherwise provided in Section 6.5(e) or Section 6.5(f), none of the Parent, the Board of Directors of Parent nor any committee thereof may (i) withhold, withdraw, qualify or modify, or publicly propose to withhold, withdraw, qualify or modify, the Parent Recommendation in a manner adverse to the Company or make any other statement inconsistent with the Parent Recommendation (any of the foregoing, a “Parent Change of Recommendation”); or (ii) enter into a written definitive agreement providing for a Parent Acquisition Transaction.
(e) The Board of Directors of Parent may at any time prior to receipt of the Parent Stockholder Approval, (A) effect a Parent Change of Recommendation in respect of a Parent Acquisition Proposal; and (B) terminate this Agreement pursuant to Section 8.1(d)(iii) in order to enter into a written definitive agreement providing for a Parent Acquisition Transaction, if (and only if): (i) a Parent Acquisition Proposal is made to Parent by a third party, and such offer is not withdrawn; (ii) Parent’s Board of Directors determines in good faith after consultation with its financial advisors that such offer constitutes a Parent Superior Offer; (iii) following consultation with outside legal counsel, Parent’s Board of Directors determines that the failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws; (iv) Parent provides the Company five (5) Business Days’ prior written notice of its intention to take such action, which notice shall include the information with respect to such Parent Superior Offer that is specified in Section 6.5(b) (it being understood that any material revision or amendment to the terms of such Parent Superior Offer shall require a new notice and, in such case, all references to five (5) Business Days in this Section 6.5(e) shall be deemed to be three (3) Business Days); and (v) at the end of the five (5) Business Day period described in clause (iv), the Board of Directors of Parent again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (after negotiating in good faith with the Company and its Representatives, if requested by the Company, during such five (5) Business Day period regarding any adjustments or modifications to the terms of this Agreement proposed by the Company and taking into account any such adjustments or modifications) that Parent Acquisition Proposal continues to be a Parent Superior Offer and that the failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws.
(f) The Board of Directors of the Company may, at any time prior to receipt of the Parent Stockholder Approval, effect a Parent Change of Recommendation in response to an event, change, effect, development, condition or occurrence that affects or would be reasonably likely to affect (x) the business, financial condition or continuing results of operations of Parent and its Subsidiaries, taken as a whole, or (y) the benefits of the Merger to Parent or the stockholders of Parent, in either case that is (1) material, individually or in the aggregate with any other such events, changes, effects, developments, conditions or occurrences, (2) does not involve or relate to a Parent Acquisition Proposal and (3) is not known (or the material consequences of which are not known or understood) as of the date hereof if (and only if): (i) following consultation with outside legal counsel, Parent’s Board of Directors determines that the failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws; (ii) Parent provides the Company five (5) Business Days’ prior written notice of its intention to take such action, which notice shall include the information with respect to any such events, changes, effects, developments, conditions or occurrences; and (iii) at the end of the five (5) Business Day period described in clause (ii), the Board of Directors of Parent again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (after negotiating in good faith with the Company and its Representatives, if requested by the Company, during such five (5) Business Day period regarding any adjustments or modifications to the terms of this Agreement proposed by the Company and taking into account any such adjustments or modifications) that the failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws.
(g) Notwithstanding a Parent Change of Recommendation pursuant to Section 6.5(f), Parent shall nevertheless submit this Agreement to the stockholders of Parent for the purpose of obtaining the Parent Stockholder Approval at the Parent Stockholders’ Meeting and nothing contained herein shall be deemed to relieve Parent of such obligation, unless this Agreement shall have been terminated in accordance with its terms prior to the Parent Stockholders’ Meeting.
(h) The parties agree that a Parent Change of Recommendation effected in accordance with Section 6.5(e) or Section 6.5(f) shall not in and of itself violate any other provision of this Agreement.
(i) During the period from the date of this Agreement through the Effective Time, neither Parent nor any of its Subsidiaries shall terminate, amend, modify or waive any provision of any confidentiality agreement to which it is a party relating to a proposed business combination involving Parent or any standstill agreement to which it is a party unless the Board of Directors of Parent determines in good faith, after consultation with outside legal counsel, that failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws. During such period, Parent or its Subsidiaries, as the case may be, shall enforce, to the fullest extent permitted under applicable Law, the provisions of any such agreement, including by obtaining injunctions to prevent any breaches of such agreements and to enforce specifically the terms and provisions thereof in each case except to the extent that the Board of Directors of Parent determines in good faith, after consultation with outside legal counsel, that taking such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws.
Appears in 1 contract
Samples: Merger Agreement (Wavedancer, Inc.)
Non-Solicitation by Parent. (a) Parent agrees that neither it nor any Subsidiary of Parent, nor any of their respective officers, directors or employees, shall, and that it shall use its reasonable best efforts to cause its and their respective Representatives not to (and shall not authorize or give permission to permit any of its and their respective Representatives to)Subsidiaries or any Representative of Parent or its Subsidiaries, directly or indirectly: , to, (i) solicit, initiate, seek knowingly encourage, induce or knowingly encourage facilitate the making, submission or announcement of any Parent Acquisition Proposal or take any action that could reasonably be expected to lead to any Parent Acquisition Proposal, (ii) furnish any nonpublic information regarding Parent or any of its Subsidiaries to any Person (other than the Company) in connection with or in response to a any Parent Acquisition Proposal or an inquiry or indication of interest that could lead to any Parent Acquisition Proposal, (iii) continue or otherwise engage or participate in any discussions or negotiations with any Person (other than the Company) with respect to any Parent Acquisition Proposal, (iv) except in connection with a Parent Change of Recommendation pursuant to Section 6.5(e), approve, endorse or recommend any Parent Acquisition Proposal or (v) except in connection with a Parent Change of Recommendation pursuant to Section 6.5(e), enter into any letter of intent, arrangement intent or understanding similar document or any agreement contemplating or otherwise relating to any Parent Acquisition Transaction (other than a confidentiality agreement as contemplated by this Section 6.5(a))Transaction; provided, however, that that, this Section 6.5 5.12(a) shall not prohibit (A) the Board of Directors of Parent, directly or indirectly through any officer, employee or Representative of Parent or any of its Subsidiaries, prior to obtaining the Parent Stockholder Approval, from furnishing nonpublic information regarding Parent or any of and its Subsidiaries to, or entering into or participating in discussions or negotiations with, any Person in response to an unsolicited, bona fide written any Parent Acquisition Proposal that, after consultation with an independent reputable financial advisor outside legal counsel, Parent’s board of directors determines in good faith is, or would reasonably be expected to result in, a Parent Superior Offer that is submitted to Parent by such Person (and not withdrawn) if (1) neither the Board Parent nor any Representative of Directors Parent (or its Subsidiaries) shall have breached or taken any action inconsistent with any of the provisions set forth in this Section 5.12(a) with respect to the foregoing, (2) the board of directors of Parent concludes in good faith, after consultation with its financial advisors, constitutes or could reasonably be expected to result in a Parent Superior Offer if (1) such Parent Acquisition Proposal did not result from a material breach of this Section 6.5, (2) prior thereto Parent has given having taken into account the Company the notice required by Section 6.5(b) and (3) Parent furnishes any nonpublic information provided to the maker of the Parent Acquisition Proposal only pursuant to a confidentiality agreement between Parent and such Person containing customary terms and conditions substantially similar to those contained in the Confidentiality Agreement; or (B) Parent from complying with Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to any Parent Acquisition Proposal (it being understood that any such disclosure that constitutes a Parent Change of Recommendation shall be subject to the provisions of this Section 6.5 with respect thereto).
(b) Parent shall promptly, and in no event later than twenty-four (24) hours, after its receipt of any Parent Acquisition Proposal, or any request for nonpublic information relating to Parent or any advice of its Subsidiaries in connection with a Parent Acquisition Proposal, advise the Company orally and in writing of such Parent Acquisition Proposal or request (including providing the identity of the Person making or submitting such Parent Acquisition Proposal or request, and, (i) if it is in writing, a copy of such Parent Acquisition Proposal and any related draft agreements or (ii) if it is oral, a reasonably detailed summary thereof that is made or submitted by any Person during the period between the date hereof and the Closing). Parent shall keep the Company informed on a prompt basis with respect to any change to the material terms of any such Parent Acquisition Proposal (and, in the case of a change of the amount of consideration being offered, in no event later than twenty-four (24) hours following any such change), including providing the Company with a copy of any draft agreements and modifications thereof.
(c) Upon the execution of this Agreement, Parent shall, and shall cause its Subsidiaries and its and their respective officers, directors and employees, and shall use its reasonable best efforts to cause its and their respective Representatives to, immediately cease and terminate any existing activities, discussions or negotiations between Parent or any of its Subsidiaries or any of their respective officers, directors, employees or Representatives and any Person (other than the Company) that relate to any Parent Acquisition Proposal and shall use reasonable best efforts to obtain the prompt return or destruction of any confidential information previously furnished to such Persons within twelve (12) months of the date hereof.
(d) Except as otherwise provided in Section 6.5(e) or Section 6.5(f), none of the Parent, the Board of Directors of Parent nor any committee thereof may (i) withhold, withdraw, qualify or modify, or publicly propose to withhold, withdraw, qualify or modify, the Parent Recommendation in a manner adverse to the Company or make any other statement inconsistent with the Parent Recommendation (any of the foregoing, a “Parent Change of Recommendation”); or (ii) enter into a written definitive agreement providing for a Parent Acquisition Transaction.
(e) The Board of Directors of Parent may at any time prior to receipt of the Parent Stockholder Approval, (A) effect a Parent Change of Recommendation in respect of a Parent Acquisition Proposal; and (B) terminate this Agreement pursuant to Section 8.1(d)(iii) in order to enter into a written definitive agreement providing for a Parent Acquisition Transaction, if (and only if): (i) a Parent Acquisition Proposal is made to Parent by a third party, and such offer is not withdrawn; (ii) Parent’s Board of Directors determines in good faith after consultation with its financial advisors that such offer constitutes a Parent Superior Offer; (iii) following consultation with outside legal counsel, Parent’s Board of Directors determines that the failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws; (iv) Parent provides the Company five (5) Business Days’ prior written notice of its intention to take such action, which notice shall include the information with respect to such Parent Superior Offer that is specified in Section 6.5(b) (it being understood that any material revision or amendment to the terms of such Parent Superior Offer shall require a new notice and, in such case, all references to five (5) Business Days in this Section 6.5(e) shall be deemed to be three (3) Business Days); and (v) at the end of the five (5) Business Day period described in clause (iv), the Board of Directors of Parent again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (after negotiating in good faith with the Company and its Representatives, if requested by the Company, during such five (5) Business Day period regarding any adjustments or modifications to the terms of this Agreement proposed by the Company and taking into account any such adjustments or modifications) that Parent Acquisition Proposal continues to be a Parent Superior Offer and that the failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws.
(f) The Board of Directors of the Company may, at any time prior to receipt of the Parent Stockholder Approval, effect a Parent Change of Recommendation in response to an event, change, effect, development, condition or occurrence that affects or would be reasonably likely to affect (x) the business, financial condition or continuing results of operations of Parent and its Subsidiaries, taken as a whole, or (y) the benefits of the Merger to Parent or the stockholders of Parent, in either case that is (1) material, individually or in the aggregate with any other such events, changes, effects, developments, conditions or occurrences, (2) does not involve or relate to a Parent Acquisition Proposal and (3) is not known (or the material consequences of which are not known or understood) as of the date hereof if (and only if): (i) following consultation with outside legal counsel, Parent’s Board of Directors determines that the failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws; (ii) Parent provides the Company five (5) Business Days’ prior written notice of its intention to take such action, which notice shall include the information with respect to any such events, changes, effects, developments, conditions or occurrences; and (iii) at the end of the five (5) Business Day period described in clause (ii), the Board of Directors of Parent again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (after negotiating in good faith with the Company and its Representatives, if requested by the Company, during such five (5) Business Day period regarding any adjustments or modifications to the terms of this Agreement proposed by the Company and taking into account any such adjustments or modifications) that the failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws.
(g) Notwithstanding a Parent Change of Recommendation pursuant to Section 6.5(f), Parent shall nevertheless submit this Agreement to the stockholders of Parent for the purpose of obtaining the Parent Stockholder Approval at the Parent Stockholders’ Meeting and nothing contained herein shall be deemed to relieve Parent of such obligation, unless this Agreement shall have been terminated in accordance with its terms prior to the Parent Stockholders’ Meeting.
(h) The parties agree that a Parent Change of Recommendation effected in accordance with Section 6.5(e) or Section 6.5(f) shall not in and of itself violate any other provision of this Agreement.
(i) During the period from the date of this Agreement through the Effective Time, neither Parent nor any of its Subsidiaries shall terminate, amend, modify or waive any provision of any confidentiality agreement to which it is a party relating to a proposed business combination involving Parent or any standstill agreement to which it is a party unless the Board of Directors of Parent determines in good faith, after consultation with outside legal counsel, that failure to take such action would be reasonably likely inconsistent with the Parent board of directors’ fiduciary obligations to result the Parent’s stockholders under applicable Legal Requirements, (3) at least two (2) business days prior to furnishing any such information to, or entering into discussions with, such Person, Parent gives Company written notice of the identity of such Person and of Parent’s intention to furnish information to, or enter into discussions with, such Person, and Parent receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of Parent and containing customary “standstill” provisions, and (4) at least two (2) business days prior to furnishing any such information to such Person, Parent furnishes such nonpublic information to Company (to the extent such nonpublic information has not been previously furnished by Parent to Company). Without limiting the generality of the foregoing, Parent acknowledges and agrees that any action inconsistent with of any of the provisions set forth in the preceding sentence by any Representative of Parent (or its Subsidiaries), whether or not such Representative is purporting to act on behalf of Parent (or its Subsidiaries), shall be deemed to constitute a breach of its fiduciary duties under applicable Laws. During such periodthis Section 5.12(a) by Parent.
(b) Parent shall promptly (and in no event later than one (1) business day after receipt of any Parent Acquisition Proposal, any inquiry or indication of interest that could lead to any Parent Acquisition Proposal or any request for nonpublic information) (i) advise Company orally and in writing of any Parent Acquisition Proposal, any inquiry or indication of interest that could lead to any Parent Acquisition Proposal or any request for nonpublic information relating to Parent or its SubsidiariesSubsidiaries (including the identity of the Person making or submitting such Parent Acquisition Proposal, as inquiry, indication of interest or request, and the case may be, material financial terms thereof) that is made or submitted by any Person during the Pre-Closing Period and (ii) provide Company a copy of any written Parent Acquisition Proposal and a copy of all written materials (including copies of any written materials received via e-mail or other electronic medium) received by Parent in connection with such Parent Acquisition Proposal. Parent shall enforce, keep Company reasonably informed with respect to the fullest extent permitted under applicable Law, the provisions status of any such agreementParent Acquisition Proposal, including by obtaining injunctions inquiry, indication of interest or request and any modification or proposed modification thereto.
(c) Parent shall immediately cease and cause to prevent be terminated any breaches existing discussions with any Person that relate to any Parent Acquisition Proposal.
(d) Parent agrees not to release or permit the release of such agreements any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which Parent (or its Subsidiaries) is a party or under which Parent (or its Subsidiaries) has any rights, and will use its best efforts to enforce specifically or cause to be enforced each such agreement at the terms and provisions thereof in request of Company. Parent also will promptly request each case except Person that has executed, within twelve (12) months prior to the extent that the Board date of Directors this Agreement, a confidentiality agreement in connection with its consideration of a possible Parent Acquisition Transaction to return all confidential information heretofore furnished to such Person by or on behalf of Parent determines in good faith, after consultation with outside legal counsel, that taking such action would be reasonably likely to result in a breach of (or its fiduciary duties under applicable LawsSubsidiaries).
Appears in 1 contract
Samples: Merger Agreement (Vaxgen Inc)
Non-Solicitation by Parent. (a) During the Pre-Closing Period, Parent agrees that neither it nor any Subsidiary of Parent, nor any of their respective officers, directors or employees, shall, will not and that it shall use its reasonable best efforts to cause its and their respective Representatives not to (and shall will not authorize or give permission to permit any of its and their respective Representatives to)Subsidiaries or any Representative of Parent or its Subsidiaries, directly or indirectly: , to, (i) solicit, initiate, seek knowingly encourage, induce or knowingly encourage facilitate the making, submission or announcement of any Parent Acquisition Proposal or take any action that would reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any nonpublic information regarding Parent or any of its Subsidiaries to any Person (other than the Company) in connection with or in response to a Parent an Acquisition Proposal or an inquiry or indication of interest that could lead to an Acquisition Proposal, (iii) continue or otherwise engage or participate in any discussions or negotiations with any Person (other than the Company) with respect to any Parent Acquisition Proposal, (iv) except in connection with a Parent Change of Recommendation pursuant to Section 6.5(e), approve, endorse or recommend any Parent Acquisition Proposal or (v) except in connection with a Parent Change of Recommendation pursuant to Section 6.5(e), enter into any letter of intent, arrangement intent or understanding similar document or any agreement contemplating or otherwise relating to any Parent Acquisition Transaction (other than a confidentiality agreement as contemplated by this Section 6.5(a)an Acceptable Parent Confidentiality Agreement); provided, however, that this Section 6.5 shall not prohibit (A) the Board of Directors of Parent, directly or indirectly through any officer, employee or Representative of Parent or any of its Subsidiaries, prior to obtaining the adoption of this Agreement by the Parent Stockholder Approval, this Section 5.13(a) will not prohibit Parent from furnishing nonpublic information regarding Parent or any of and its Subsidiaries to, or entering into or participating in discussions or negotiations with, any Person in response to an unsolicited, bona fide written Parent Acquisition Proposal that that, after consultation with its outside financial and legal advisor, Parent’s board of directors determines in good faith is, or would reasonably be expected to result in, a Superior Offer (and is not withdrawn) if (1) neither Parent nor any Representative of Parent (or its Subsidiaries) will have breached this Section 5.13(a), (2) the Board board of Directors directors of Parent concludes in good faith, after consultation having taken into account the advice of its outside legal counsel, that such action is required in order for the board of directors of Parent to comply with its financial advisorsfiduciary obligations to the Parent Stockholders under applicable Legal Requirements, constitutes or could reasonably be expected to result in a Parent Superior Offer if (13) such Parent Acquisition Proposal did not result from a material breach of this Section 6.5, at least two (2) Business Days prior thereto to furnishing any such information to, or entering into discussions with, such Person, Parent has given the gives Company the written notice required by Section 6.5(b) and (3) Parent furnishes any nonpublic information provided to the maker of the identity of such Person and of Parent’s intention to furnish information to, or enter into discussions with, such Person, and Parent Acquisition Proposal only pursuant receives from such Person an executed confidentiality agreement on terms no more favorable to a Parent than the confidentiality agreement between Parent and Company and containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person containing by or on behalf of Parent as well as customary terms and conditions substantially similar to those contained in the “standstill” provisions (an, “Acceptable Parent Confidentiality Agreement; or ”) (B4) Parent from complying with Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard at least two (2) Business Days prior to any Parent Acquisition Proposal (it being understood that furnishing any such disclosure that constitutes a information to such Person, Parent Change of Recommendation shall be subject furnishes such nonpublic information to Company (to the provisions of this Section 6.5 with respect theretoextent such nonpublic information has not been previously furnished by Parent to Company).
(b) Parent shall promptly, will promptly (and in no event later than twenty-four (24) hours, 24 hours after its receipt of any Parent Acquisition Proposal, any inquiry or indication of interest that could lead to an Acquisition Proposal or any request for nonpublic information) advise Company orally and in writing of any Acquisition Proposal, any inquiry or indication of interest that could lead to an Acquisition Proposal or any request for nonpublic information relating to Parent or any of its Subsidiaries in connection with a Parent Acquisition Proposal, advise the Company orally and in writing of such Parent Acquisition Proposal or request (including providing the identity of the Person making or submitting such Parent Acquisition Proposal Proposal, inquiry, indication of interest or request, and, (iand the material terms thereof) if it is in writing, a copy of such Parent Acquisition Proposal and any related draft agreements or (ii) if it is oral, a reasonably detailed summary thereof that is made or submitted by any Person during the period between the date hereof and the Closing)Pre-Closing Period. Parent shall will keep the Company informed on a prompt basis in all material respects with respect to any change to the material terms status of any such Parent Acquisition Proposal (andProposal, in the case inquiry, indication of a change of the amount of consideration being offered, in no event later than twenty-four (24) hours following interest or request and any such change), including providing the Company with a copy of any draft agreements and modifications thereofmodification or proposed modification thereto.
(c) Upon the execution of this Agreement, Parent shall, and shall cause its Subsidiaries and its and their respective officers, directors and employees, and shall use its reasonable best efforts to cause its and their respective Representatives to, will immediately cease and terminate cause to be terminated any existing activities, discussions or negotiations between Parent or any of its Subsidiaries or any of their respective officers, directors, employees or Representatives and with any Person (other than the Company) that relate to any Parent Acquisition Proposal and shall use reasonable best efforts to obtain the prompt return or destruction of any confidential information previously furnished to such Persons within twelve (12) months of the date hereof.
(d) Except as otherwise provided in Section 6.5(e) or Section 6.5(f), none of the Parent, the Board of Directors of Parent nor any committee thereof may (i) withhold, withdraw, qualify or modify, or publicly propose to withhold, withdraw, qualify or modify, the Parent Recommendation in a manner adverse to the Company or make any other statement inconsistent with the Parent Recommendation (any of the foregoing, a “Parent Change of Recommendation”); or (ii) enter into a written definitive agreement providing for a Parent Acquisition Transaction.
(e) The Board of Directors of Parent may at any time prior to receipt of the Parent Stockholder Approval, (A) effect a Parent Change of Recommendation in respect of a Parent Acquisition Proposal; and (B) terminate this Agreement pursuant to Section 8.1(d)(iii) in order to enter into a written definitive agreement providing for a Parent Acquisition Transaction, if (and only if): (i) a Parent Acquisition Proposal is made to Parent by a third party, and such offer is not withdrawn; (ii) Parent’s Board of Directors determines in good faith after consultation with its financial advisors that such offer constitutes a Parent Superior Offer; (iii) following consultation with outside legal counsel, Parent’s Board of Directors determines that the failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws; (iv) Parent provides the Company five (5) Business Days’ prior written notice of its intention to take such action, which notice shall include the information with respect to such Parent Superior Offer that is specified in Section 6.5(b) (it being understood that any material revision or amendment to the terms of such Parent Superior Offer shall require a new notice and, in such case, all references to five (5) Business Days in this Section 6.5(e) shall be deemed to be three (3) Business Days); and (v) at the end of the five (5) Business Day period described in clause (iv), the Board of Directors of Parent again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (after negotiating in good faith with the Company and its Representatives, if requested by the Company, during such five (5) Business Day period regarding any adjustments or modifications to the terms of this Agreement proposed by the Company and taking into account any such adjustments or modifications) that Parent Acquisition Proposal continues to be a Parent Superior Offer and that the failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws.
(f) The Board of Directors of the Company may, at any time prior to receipt of the Parent Stockholder Approval, effect a Parent Change of Recommendation in response to an event, change, effect, development, condition or occurrence that affects or would be reasonably likely to affect (x) the business, financial condition or continuing results of operations of Parent and its Subsidiaries, taken as a whole, or (y) the benefits of the Merger to Parent or the stockholders of Parent, in either case that is (1) material, individually or in the aggregate with any other such events, changes, effects, developments, conditions or occurrences, (2) does not involve or relate to a Parent Acquisition Proposal and (3) is not known (or the material consequences of which are not known or understood) as of the date hereof if (and only if): (i) following consultation with outside legal counsel, Parent’s Board of Directors determines that the failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws; (ii) Parent provides the Company five (5) Business Days’ prior written notice of its intention to take such action, which notice shall include the information with respect to any such events, changes, effects, developments, conditions or occurrences; and (iii) at the end of the five (5) Business Day period described in clause (ii), the Board of Directors of Parent again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (after negotiating in good faith with the Company and its Representatives, if requested by the Company, during such five (5) Business Day period regarding any adjustments or modifications to the terms of this Agreement proposed by the Company and taking into account any such adjustments or modifications) that the failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws.
(g) Notwithstanding a Parent Change of Recommendation pursuant to Section 6.5(f), Parent shall nevertheless submit this Agreement to the stockholders of Parent for the purpose of obtaining the Parent Stockholder Approval at the Parent Stockholders’ Meeting and nothing contained herein shall be deemed to relieve Parent of such obligation, unless this Agreement shall have been terminated in accordance with its terms prior to the Parent Stockholders’ Meeting.
(h) The parties agree that a Parent Change of Recommendation effected in accordance with Section 6.5(e) or Section 6.5(f) shall not in and of itself violate any other provision of this Agreement.
(i) During the period from the date of this Agreement through the Effective Time, neither Parent nor any of its Subsidiaries shall terminate, amend, modify or waive any provision of any confidentiality agreement to which it is a party relating to a proposed business combination involving Parent or any standstill agreement to which it is a party unless the Board of Directors of Parent determines in good faith, after consultation with outside legal counsel, that failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws. During such period, Parent or its Subsidiaries, as the case may be, shall enforce, to the fullest extent permitted under applicable Law, the provisions of any such agreement, including by obtaining injunctions to prevent any breaches of such agreements and to enforce specifically the terms and provisions thereof in each case except to the extent that the Board of Directors of Parent determines in good faith, after consultation with outside legal counsel, that taking such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Ohr Pharmaceutical Inc)
Non-Solicitation by Parent. (a) Beginning on the date hereof and continuing until the earlier of the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Article 7, Parent agrees that neither it nor any Subsidiary of Parent, nor any of their respective officers, directors or employees, shall, will not and that it shall use its reasonable best efforts to cause its and their respective Representatives not to (and shall will not authorize or give permission to permit any of its and their respective Representatives to)Subsidiaries or any Representative of Parent or its Subsidiaries, directly or indirectly: , to, (i) solicit, initiate, seek knowingly encourage, induce or knowingly encourage facilitate the making, submission or announcement of any Parent Acquisition Proposal or take any action that would reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any nonpublic information regarding Parent or any of its Subsidiaries to any Person (other than the Company) in connection with or in response to a Parent an Acquisition Proposal or an inquiry or indication of interest that could lead to an Acquisition Proposal, (iii) continue or otherwise engage or participate in any discussions or negotiations with any Person (other than the Company) with respect to any Parent Acquisition Proposal, (iv) except in connection with a Parent Change of Recommendation pursuant to Section 6.5(e), approve, endorse or recommend any Parent Acquisition Proposal or (v) except in connection with a Parent Change of Recommendation pursuant to Section 6.5(e), enter into any letter of intent, arrangement intent or understanding similar document or any agreement contemplating or otherwise relating to any Parent Acquisition Transaction (other than a confidentiality agreement as contemplated by this Section 6.5(a)an Acceptable Parent Confidentiality Agreement); provided, however, that this Section 6.5 shall not prohibit (A) the Board of Directors of Parent, directly or indirectly through any officer, employee or Representative of Parent or any of its Subsidiaries, prior to obtaining the adoption of this Agreement by the Parent Stockholder Approval, this Section 5.13(a) will not prohibit Parent from furnishing nonpublic information regarding Parent or any of and its Subsidiaries to, or entering into or participating in discussions or negotiations with, or facilitating or cooperating with the submission of, an Acquisition Proposal made by any Person in response to an unsolicited, bona fide written Parent any such Acquisition Proposal that that, after consultation with a financial advisor and outside legal counsel, Parent’s board of directors determines in good faith is, or would reasonably be expected to result in, a Superior Offer (and is not withdrawn) if (1) such Acquisition Proposal did not result from a breach of this Section 5.13(a), (2) the Board board of Directors directors of Parent concludes in good faith, after consultation having taken into account the advice of its outside legal counsel, that such action is required in order for the board of directors of Parent to comply with its financial advisorsfiduciary obligations to the Parent’s stockholders under applicable Legal Requirements, constitutes or could reasonably be expected to result in a Parent Superior Offer if (13) such Parent Acquisition Proposal did not result from a material breach of this Section 6.5, at least two (2) Business Days prior thereto to furnishing any such information to, or entering into discussions with, such Person, Parent has given the gives Company the written notice required by Section 6.5(b) and (3) Parent furnishes any nonpublic information provided to the maker of the identity of such Person, the terms and conditions of any proposals or offers (including, if applicable, copies of any written requests, proposals or offers, including proposed agreements) made thereby and of Parent’s intention to furnish information to, or enter into discussions with, such Person, and Parent Acquisition Proposal only pursuant receives from such Person an executed confidentiality agreement on terms no less favorable to a Parent than the confidentiality agreement between Parent and such Person Company and containing customary terms limitations on the use and conditions substantially similar to those contained in the Confidentiality Agreement; or (B) Parent from complying with Rules 14d-9 disclosure of all nonpublic written and 14e-2 promulgated under the Exchange Act with regard to any Parent Acquisition Proposal (it being understood that any such disclosure that constitutes a Parent Change of Recommendation shall be subject to the provisions of this Section 6.5 with respect thereto).
(b) Parent shall promptly, and in no event later than twenty-four (24) hours, after its receipt of any Parent Acquisition Proposal, or any request for nonpublic oral information relating to Parent or any of its Subsidiaries in connection with a Parent Acquisition Proposal, advise the Company orally and in writing of such Parent Acquisition Proposal or request (including providing the identity of the Person making or submitting such Parent Acquisition Proposal or request, and, (i) if it is in writing, a copy of such Parent Acquisition Proposal and any related draft agreements or (ii) if it is oral, a reasonably detailed summary thereof that is made or submitted by any Person during the period between the date hereof and the Closing). Parent shall keep the Company informed on a prompt basis with respect to any change to the material terms of any such Parent Acquisition Proposal (and, in the case of a change of the amount of consideration being offered, in no event later than twenty-four (24) hours following any such change), including providing the Company with a copy of any draft agreements and modifications thereof.
(c) Upon the execution of this Agreement, Parent shall, and shall cause its Subsidiaries and its and their respective officers, directors and employees, and shall use its reasonable best efforts to cause its and their respective Representatives to, immediately cease and terminate any existing activities, discussions or negotiations between Parent or any of its Subsidiaries or any of their respective officers, directors, employees or Representatives and any Person (other than the Company) that relate to any Parent Acquisition Proposal and shall use reasonable best efforts to obtain the prompt return or destruction of any confidential information previously furnished to such Persons within twelve (12) months of the date hereof.
(d) Except as otherwise provided in Section 6.5(e) Person by or Section 6.5(f), none of the Parent, the Board of Directors on behalf of Parent nor any committee thereof may as well as customary “standstill” provisions (i) withholdan, withdraw, qualify or modify, or publicly propose to withhold, withdraw, qualify or modify, the “Acceptable Parent Recommendation in a manner adverse to the Company or make any other statement inconsistent with the Parent Recommendation (any of the foregoing, a “Parent Change of RecommendationConfidentiality Agreement”); or (ii) enter into a written definitive agreement providing for a Parent Acquisition Transaction.
(e) The Board of Directors of Parent may at any time prior to receipt of the Parent Stockholder Approval, (A) effect a Parent Change of Recommendation in respect of a Parent Acquisition Proposal; and (B) terminate this Agreement pursuant to Section 8.1(d)(iii) in order to enter into a written definitive agreement providing for a Parent Acquisition Transaction, if (and only if): (i) a Parent Acquisition Proposal is made to Parent by a third party, and such offer is not withdrawn; (ii) Parent’s Board of Directors determines in good faith after consultation with its financial advisors that such offer constitutes a Parent Superior Offer; (iii) following consultation with outside legal counsel, Parent’s Board of Directors determines that the failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws; (iv) Parent provides the Company five (5) Business Days’ prior written notice of its intention to take such action, which notice shall include the information with respect to such Parent Superior Offer that is specified in Section 6.5(b) (it being understood that any material revision or amendment to the terms of such Parent Superior Offer shall require a new notice and, in such case, all references to five (5) Business Days in this Section 6.5(e) shall be deemed to be three (3) Business Days); and (v) at the end of the five (5) Business Day period described in clause (iv), the Board of Directors of Parent again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (after negotiating in good faith with the Company and its Representatives, if requested by the Company, during such five (5) Business Day period regarding any adjustments or modifications to the terms of this Agreement proposed by the Company and taking into account any such adjustments or modifications) that Parent Acquisition Proposal continues to be a Parent Superior Offer and that the failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws.
(f) The Board of Directors of the Company may, at any time prior to receipt of the Parent Stockholder Approval, effect a Parent Change of Recommendation in response to an event, change, effect, development, condition or occurrence that affects or would be reasonably likely to affect (x) the business, financial condition or continuing results of operations of Parent and its Subsidiaries, taken as a whole, or (y) the benefits of the Merger to Parent or the stockholders of Parent, in either case that is (1) material, individually or in the aggregate with any other such events, changes, effects, developments, conditions or occurrences, (2) does not involve or relate to a Parent Acquisition Proposal and (3) is not known (or the material consequences of which are not known or understood) as of the date hereof if (and only if): (i) following consultation with outside legal counsel, Parent’s Board of Directors determines that the failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws; (ii) Parent provides the Company five (5) Business Days’ prior written notice of its intention to take such action, which notice shall include the information with respect to any such events, changes, effects, developments, conditions or occurrences; and (iii) at the end of the five (5) Business Day period described in clause (ii), the Board of Directors of Parent again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (after negotiating in good faith with the Company and its Representatives, if requested by the Company, during such five (5) Business Day period regarding any adjustments or modifications to the terms of this Agreement proposed by the Company and taking into account any such adjustments or modifications) that the failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws.
(g) Notwithstanding a Parent Change of Recommendation pursuant to Section 6.5(f), Parent shall nevertheless submit this Agreement to the stockholders of Parent for the purpose of obtaining the Parent Stockholder Approval at the Parent Stockholders’ Meeting and nothing contained herein shall be deemed to relieve Parent of such obligation, unless this Agreement shall have been terminated in accordance with its terms prior to the Parent Stockholders’ Meeting.
(h) The parties agree that a Parent Change of Recommendation effected in accordance with Section 6.5(e) or Section 6.5(f) shall not in and of itself violate any other provision of this Agreement.
(i) During the period from the date of this Agreement through the Effective Time, neither Parent nor any of its Subsidiaries shall terminate, amend, modify or waive any provision of any confidentiality agreement to which it is a party relating to a proposed business combination involving Parent or any standstill agreement to which it is a party unless the Board of Directors of Parent determines in good faith, after consultation with outside legal counsel, that failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws. During such period, Parent or its Subsidiaries, as the case may be, shall enforce, to the fullest extent permitted under applicable Law, the provisions of any such agreement, including by obtaining injunctions to prevent any breaches of such agreements and to enforce specifically the terms and provisions thereof in each case except to the extent that the Board of Directors of Parent determines in good faith, after consultation with outside legal counsel, that taking such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws.
Appears in 1 contract
Non-Solicitation by Parent. (a) Until the earlier of the Effective Time and the termination of this Agreement in accordance with Article VIII, Parent agrees that neither it nor any Subsidiary of Parentand its Subsidiaries shall not, nor any of and Parent shall cause its and their respective officers, directors or employees, shalland employees not to, and that it Parent shall use its reasonable best efforts to cause its and their respective Representatives not to (and shall not authorize or give permission to its and their respective Representatives to), directly or indirectly: (i) solicit, initiate, seek or knowingly encourage or facilitate the making, submission or announcement of any inquiry, discussion, request, offer or proposal that constitutes, or would reasonably be expected to lead to, a Parent Acquisition Proposal, (ii) furnish any nonpublic non-public information regarding Parent or any of its Subsidiaries to, or afford access to the properties, books and records of Parent or any Person (other than the Company) of its Subsidiaries to, any Third Party, in connection with or in response to, or that would be reasonably likely to lead to, a Parent Acquisition Proposal, (iii) continue or otherwise engage or participate in any discussions or negotiations with any Person (other than the Company) Third Party with respect to, or that would be reasonably likely to lead to, any Parent Acquisition Proposal, or (iv) except in connection with a Parent Change of Recommendation pursuant to Section 6.5(e), adopt or approve, endorse or recommend any Parent Acquisition Proposal or (v) except in connection with a Parent Change of Recommendation pursuant to Section 6.5(e), enter into any letter of intent, arrangement agreement in principle, memorandum of understanding, term sheet, merger agreement, acquisition agreement, option agreement or understanding any other agreement (other than an Acceptable Confidentiality Agreement) or instrument providing for or relating to to, any Parent Acquisition Transaction (other than a confidentiality agreement as contemplated by this Section 6.5(a))Proposal; provided, however, that this Section 6.5 6.5(a) shall not prohibit (A) Parent, or the Board of Directors of Parent, directly or indirectly through any officer, employee or Representative of Parent or any of its SubsidiariesRepresentative, prior to obtaining the Parent Stockholder Approval, from furnishing nonpublic information regarding Parent or taking any of its Subsidiaries to, the actions described in clauses (ii) or entering into or participating in discussions or negotiations with, any Person (iii) above in response to an unsolicited, a bona fide written Parent Acquisition Proposal received by Parent or its directors, officers, employees or Representatives from a Third Party after the execution and delivery of this Agreement which did not result from or arise in connection with a breach of this Section 6.5(a) that is not withdrawn if (but only if): (1) the Board of Directors of Parent concludes determines in good faith, after consultation with its a financial advisorsadvisor of nationally recognized reputation and outside legal counsel, that such Parent Acquisition Proposal constitutes or could is reasonably be expected to result in a Parent Superior Offer if Offer, (12) the Board of Directors of Parent determines in good faith, after consultation with outside legal counsel, that the failure to take such action with respect to such Parent Acquisition Proposal did not result from a material breach would be reasonably likely to be inconsistent with the exercise by the Board of this Section 6.5Directors of its fiduciary duties under applicable Law, (23) prior thereto Parent has given gives to the Company the notice (which notice must state that Parent’s Board of Directors’ has made the determinations contemplated by the foregoing clauses (1) and (2)), required by Section 6.5(b) and ), (34) Parent furnishes any nonpublic non-public information provided and/or provides access to such Third Party (or its directors, officers, employees or Representatives) only after such Third Party enters into an Acceptable Confidentiality Agreement with Parent and only pursuant thereto; (B) Parent from waiving any standstill or similar provisions in any Acceptable Confidentiality Agreement entered into after the maker date of this Agreement in order to permit the counterparty thereto to make a Parent Acquisition Proposal only pursuant to a confidentiality agreement between Parent and such Person containing customary terms and conditions substantially similar to those contained in the Confidentiality Agreement; or (BC) Parent from complying with Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to any Parent Acquisition Proposal (it being understood Proposal; provided, however, that compliance with such rules shall not in any way limit or modify the effect that any action taken pursuant to such disclosure that constitutes a Parent Change of Recommendation shall be subject to the provisions rules may have under any other provision of this Section 6.5 with respect thereto)Agreement.
(b) From and after the date hereof until the earlier of the Effective Time and the termination of this Agreement in accordance with Article VIII, Parent shall promptly, promptly (and in no any event later than within twenty-four (24) hours, after its receipt of any Parent Acquisition Proposal, or any request for nonpublic information relating to Parent or any of its Subsidiaries in connection with a Parent Acquisition Proposal, advise ) notify the Company orally and in writing of such its receipt of (i) any Parent Acquisition Proposal (whether written, oral or otherwise), (ii) any inquiry or request for information regarding Parent or any of its Subsidiaries or for access to the properties, books and records of Parent or any of its Subsidiaries, in each case, in connection with or in response to a Parent Acquisition Proposal, or (including providing iii) any discussions or negotiations sought to be entered into or continued with Parent, any of its Subsidiaries or its or their respective directors, officers, employees or Representatives with any Third Party (or its directors, officers, employees or Representatives) in connection with or in response to, or that would be reasonably likely to lead to, a Parent Acquisition Proposal. Any such notice pursuant to the foregoing sentence shall include (A) the identity of the Person Third Party making or submitting such Parent Acquisition Proposal or request, and, (iB) if it is in writing, a copy of such Parent Acquisition Proposal and any related draft agreements or agreements, and (iiC) if it is oral, a reasonably detailed summary thereof that is made or submitted by of any Person during the period between the date hereof material communications relating to, and the Closing)material terms and conditions of, such Parent Acquisition Proposal or request. Parent shall keep the Company reasonably informed on a prompt basis with respect to any change to the material terms of any such Parent Acquisition Proposal (and, in the case of a change of the amount of consideration being offered, and in no event later than twenty-four (24) hours following any such change)) to any of the financial terms or any other material term or condition of any such Parent Acquisition Proposal, including providing the information and documents set forth in clauses (A) through (C) of the foregoing sentence with respect to any material change thereto. Parent shall promptly provide to the Company any non-public information regarding Parent and its Subsidiaries and promptly provide access to the properties, books and records of Parent and its Subsidiaries provided to any such Third Party which was not previously provided to the Company. Parent shall not enter into any agreement (or amend or modify any existing agreement) with a copy any Third Party which would prevent Parent or any of any draft agreements and modifications thereofits Subsidiaries or their respective Representatives from complying with this Section 6.5(b).
(c) Upon Immediately following the execution of this Agreement, Parent shall, and shall cause its Subsidiaries and its and their respective officers, directors and employees, and shall use its reasonable best efforts to cause its and their respective Representatives to, (i) immediately cease and terminate any existing activitiesand all solicitations, discussions or negotiations existing as of the date of this Agreement between Parent or any of its Subsidiaries or any of their respective officers, directors, employees or Representatives and any Person Third Party (or its Representatives) in connection with or in response to a Parent Acquisition Proposal, and (ii) request that each such Third Party and its Representatives promptly return or destroy all confidential information theretofore furnished thereto by or on behalf of Parent or any of its Subsidiaries (and destroy all analyses and other than the Companymaterials prepared by or on behalf of such Third Party that contain, reflect or analyze such information). If Parent becomes aware of any material breach by a Third Party (or its Representatives) that relate of any standstill provision to which such Third Party is subject pursuant to any agreement with Parent Acquisition Proposal and or any of its Subsidiaries, Parent shall use reasonable best efforts take all necessary actions to obtain the prompt return or destruction of any confidential information previously furnished to enforce such Persons within twelve (12) months of the date hereofstandstill provision.
(d) Except as otherwise provided in Section 6.5(e) or Section 6.5(f), none of the Parent, neither Parent nor the Board of Directors of Parent nor or any committee thereof may shall (i) withhold, withdraw, qualify withdraw or modify, or publicly propose to withhold, withdraw, qualify withdraw or modify, the Parent Recommendation in a manner adverse to the Company or make any other statement inconsistent with Company, including by failing to include the Parent Recommendation in the Joint Proxy Statement and Form S-4, or (ii) recommend, adopt or approve, or propose publicly to recommend, adopt or approve, any Parent Acquisition Proposal (any of the foregoingaction described in this Section 6.5(d), a “Parent Change of Recommendation”); or (ii) enter into a written definitive agreement providing for a Parent Acquisition Transaction.
(e) The Board of Directors of Parent may at any time prior to receipt of the Parent Stockholder Approval, (A) effect a Parent Change of Recommendation Notwithstanding anything in respect of a Parent Acquisition Proposal; and (B) terminate this Agreement pursuant to Section 8.1(d)(iii) in order to enter into a written definitive agreement providing for a Parent Acquisition Transaction, if (and only if): (i) a Parent Acquisition Proposal is made to Parent by a third party, and such offer is not withdrawn; (ii) Parent’s Board of Directors determines in good faith after consultation with its financial advisors that such offer constitutes a Parent Superior Offer; (iii) following consultation with outside legal counsel, Parent’s Board of Directors determines that the failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws; (iv) Parent provides the Company five (5) Business Days’ prior written notice of its intention to take such action, which notice shall include the information with respect to such Parent Superior Offer that is specified in Section 6.5(b) (it being understood that any material revision or amendment to the terms of such Parent Superior Offer shall require a new notice and, in such case, all references to five (5) Business Days in this Section 6.5(e) shall be deemed to be three (3) Business Days); and (v) at the end of the five (5) Business Day period described in clause (iv)contrary, the Board of Directors of Parent again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (after negotiating in good faith with the Company and its Representatives, if requested by the Company, during such five (5) Business Day period regarding any adjustments or modifications to the terms of this Agreement proposed by the Company and taking into account any such adjustments or modifications) that Parent Acquisition Proposal continues to be a Parent Superior Offer and that the failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws.
(f) The Board of Directors of the Company may, at any time prior to receipt of the Parent Stockholder Approval, effect a Parent Change of Recommendation in response to an event, change, effect, development, condition connection with or occurrence that affects or would be reasonably likely to affect (x) the business, financial condition or continuing results of operations of Parent and its Subsidiaries, taken as a whole, or (y) the benefits of the Merger to Parent or the stockholders of Parent, in either case that is (1) material, individually or in the aggregate with any other such events, changes, effects, developments, conditions or occurrences, (2) does not involve or relate relating to a Parent Acquisition Proposal and (3provided that, for the avoidance of doubt, such actions will nonetheless constitute a Parent Change of Recommendation) is not known (or the material consequences of which are not known or understood) as of the date hereof terminate this Agreement pursuant to Section 8.1(k), if (and but only if): ):
(i) following consultation a bona fide written Parent Acquisition Proposal is received by Parent or its directors, officers, employees or Representatives from a Third Party after the execution and delivery of this Agreement which did not result from, arise in connection with outside legal counsel, Parent’s Board of Directors determines that the failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws; this Section 6.5 and such Parent Acquisition Proposal is not withdrawn;
(ii) Parent provides the Company five (5) Business Days’ prior written notice of its intention to take such action, which notice shall include the information with respect to any such events, changes, effects, developments, conditions or occurrences; and (iii) at the end of the five (5) Business Day period described in clause (ii), the Board of Directors of Parent again makes the determination determines in good faith faith, after consultation with its a financial advisor of nationally recognized reputation and outside legal counsel and financial advisors (after negotiating in good faith with the Company and its Representativescounsel, if requested by the Company, during that such five (5) Business Day period regarding any adjustments or modifications to the terms of this Agreement proposed by the Company and taking into account any such adjustments or modifications) that the failure to take such action would be reasonably likely to result in Parent Acquisition Proposal constitutes a breach of its fiduciary duties under applicable Laws.Parent Superior Offer;
(giii) Notwithstanding a Parent Change of Recommendation pursuant to Section 6.5(f), Parent shall nevertheless submit this Agreement to the stockholders of Parent for the purpose of obtaining the Parent Stockholder Approval at the Parent Stockholders’ Meeting and nothing contained herein shall be deemed to relieve Parent of such obligation, unless this Agreement shall have been terminated in accordance with its terms prior to the Parent Stockholders’ Meeting.
(h) The parties agree that a Parent Change of Recommendation effected in accordance with Section 6.5(e) or Section 6.5(f) shall not in and of itself violate any other provision of this Agreement.
(i) During the period from the date of this Agreement through the Effective Time, neither Parent nor any of its Subsidiaries shall terminate, amend, modify or waive any provision of any confidentiality agreement to which it is a party relating to a proposed business combination involving Parent or any standstill agreement to which it is a party unless the Board of Directors of Parent determines in good faith, after consultation with outside legal counsel, that the failure to take effect a Parent Change of Recommendation or terminate this Agreement pursuant to Section 8.1(k) with respect to such action Parent Superior Offer would be reasonably likely to result in a breach be inconsistent with the exercise of its the Board of Directors’ fiduciary duties under applicable Laws. During Law;
(iv) Parent provides the Company at least four Business Days’ prior written notice stating that Parent will effect a Parent Change of Recommendation pursuant to this Section 6.5(e) or terminate this Agreement pursuant to Section 8.1(k) after the expiration of such periodfour Business Day period and providing the information described in clauses (A) through (C) of Section 6.5(b) with respect to such Parent Superior Offer (mutatis mutandis); provided, Parent or its Subsidiarieshowever, as the case may be, shall enforce, that any change to the fullest extent permitted under applicable Law, financial terms or any other material change to the provisions terms and conditions of any such agreement, including Parent Superior Offer shall require a new written notice to be delivered by obtaining injunctions to prevent any breaches of such agreements and to enforce specifically the terms and provisions thereof in each case except Parent to the extent that Company and Parent shall be required to comply again with the Board requirements of Directors of Parent determines in good faith, after consultation with outside legal counsel, that taking such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws.this
Appears in 1 contract
Non-Solicitation by Parent. (a) Beginning on the date hereof and continuing until the earlier of the Parent agrees that neither it nor any Subsidiary of ParentStockholder Approval or the date, nor any of their respective officersif any, directors or employeeson which this Agreement is terminated pursuant to Article VII, shall, Parent will not and that it shall use its reasonable best efforts to cause its and their respective Representatives not to (and shall will not authorize or give permission to permit any of its and their respective Representatives to)Subsidiaries or any Representative of Parent or its Subsidiaries, directly or indirectly: , to (i) solicit, initiate, seek knowingly encourage, induce or knowingly encourage facilitate the making, submission or announcement of any Parent Acquisition Proposal or take any action that would reasonably be expected to lead to an Acquisition Proposal, ; (ii) furnish any nonpublic information regarding Parent or any of its Subsidiaries to any Person (other than the Company) in connection with or in response to a Parent an Acquisition Proposal or an inquiry or indication of interest that could lead to an Acquisition Proposal, ; (iii) continue or otherwise engage or participate in any discussions or negotiations with any Person (other than the Company) with respect to any Parent Acquisition Proposal, ; (iv) except in connection with a Parent Change of Recommendation pursuant to Section 6.5(e), approve, endorse or recommend any Parent Acquisition Proposal or (v) except in connection with a Parent Change of Recommendation pursuant to Section 6.5(e), enter into any letter of intent, arrangement intent or understanding similar document or any agreement contemplating or otherwise relating to any Parent Acquisition Transaction (other than a confidentiality agreement as contemplated by this Section 6.5(a)an Acceptable Parent Confidentiality Agreement); provided, however, that this Section 6.5 shall not prohibit (A) the Board of Directors of Parent, directly or indirectly through any officer, employee or Representative of Parent or any of its Subsidiaries, prior to obtaining the adoption of this Agreement by the Parent Stockholder Approval, this Section 5.11(a) will not prohibit Parent from furnishing nonpublic information regarding Parent or any of and its Subsidiaries to, or entering into or participating in discussions or negotiations with, any Person in response to an unsolicited, any bona fide written Parent Acquisition Proposal that the Board of Directors of Parent concludes in good faiththat, after consultation with its a financial advisorsadvisor and outside legal counsel, constitutes the Parent Board determines in good faith is, or could would reasonably be expected to result in in, a Parent Superior Offer (and is not withdrawn) if (1) such Parent Acquisition Proposal did not result from a material breach of this Section 6.5, 5.11(a); (2) prior thereto the Parent has given Board concludes in good faith, after having taken into account the Company advice of its outside legal counsel, that, in light of such Acquisition Proposal and the notice required by Section 6.5(b) and terms of this Agreement, failure to take such action would result in a breach of its fiduciary obligations to Parent’s stockholders under applicable Legal Requirements; (3) at least two (2) Business Days prior to furnishing any such information to, or entering into discussions with, such Person, Parent furnishes any nonpublic information provided to the maker gives Company written notice of the identity of such Person, the terms and conditions of any proposals or offers (including, if applicable, copies of any written requests, proposals or offers, including proposed agreements) made thereby and of Parent’s intention to furnish information to, or enter into discussions with, such Person, and Parent Acquisition Proposal only pursuant receives from such Person an executed confidentiality agreement on terms no less favorable to a Parent than the confidentiality agreement between Parent and Company and containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person containing by or on behalf of Parent as well as customary terms “standstill” provisions, and conditions (4) substantially similar contemporaneous with furnishing any such information to those contained such Person, Parent furnishes such nonpublic information to Company (to the extent such nonpublic information has not been previously furnished by Parent to Company). Without limiting the generality of the foregoing, Parent acknowledges and agrees that in the Confidentiality Agreement; event any Representative of Parent (or its Subsidiaries), whether or not such Representative is purporting to act on behalf of Parent (B) or its Subsidiaries), takes any action that, if taken by Parent from complying with Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to any Parent Acquisition Proposal (it being understood that any such disclosure that constitutes or its Subsidiaries), would constitute a Parent Change of Recommendation shall be subject to the provisions breach of this Section 6.5 with respect thereto)5.11, the taking of such action by such Representative will be deemed to constitute a breach of this Section 5.11 by Parent for purposes of this Agreement.
(b) Parent shall promptly, will promptly (and in no event later than twenty-four (24) hours, 48 hours after its receipt of any Parent Acquisition Proposal, any inquiry or indication of interest that could lead to an Acquisition Proposal or any request for nonpublic information) advise Company orally and in writing of any Acquisition Proposal, any inquiry or indication of interest that could lead to an Acquisition Proposal or any request for nonpublic information relating to Parent or any of its Subsidiaries in connection with a Parent Acquisition Proposal, advise the Company orally and in writing of such Parent Acquisition Proposal or request (including providing the identity of the Person making or submitting such Parent Acquisition Proposal Proposal, inquiry, indication of interest or request, and, (ithe material terms thereof and copies of any written material submitted therewith) if it is in writing, a copy of such Parent Acquisition Proposal and any related draft agreements or (ii) if it is oral, a reasonably detailed summary thereof that is made or submitted by any Person during the period between the date hereof and the Closing)Pre-Closing Period. Parent shall will keep the Company informed on a prompt basis in all material respects with respect to any change to the material terms status of any such Parent Acquisition Proposal (andProposal, in the case inquiry, indication of a change of the amount of consideration being offered, in no event later than twenty-four (24) hours following interest or request and any such change), including providing the Company with a copy modification or proposed modification thereto and shall deliver copies of any draft agreements and modifications thereofwritten material submitted therewith.
(c) Upon the execution of this Agreement, Parent shall, and shall cause its Subsidiaries and its and their respective officers, directors and employees, and shall use its reasonable best efforts to cause its and their respective Representatives to, will immediately cease and terminate cause to be terminated any existing activitiesdiscussions with any Person that relate to any Acquisition Proposal and will promptly request from each Person that has executed a confidentiality agreement in connection with its consideration of making an Acquisition Proposal prior to the date hereof to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information concerning Parent, discussions or negotiations between Parent or any of its Subsidiaries Company or any of their respective officers, directors, employees or Representatives Subsidiaries and any Person (other than the Company) that relate to any Parent Acquisition Proposal promptly terminate all physical and shall use reasonable best efforts to obtain the prompt return or destruction of any confidential information electronic data access previously furnished granted to such Persons within twelve (12) months of the date hereofPerson.
(d) Except as otherwise provided in Section 6.5(e) or Section 6.5(f), none of the Parent, the Board of Directors of Parent nor any committee thereof may (i) withhold, withdraw, qualify or modify, or publicly propose to withhold, withdraw, qualify or modify, the Parent Recommendation in a manner adverse to the Company or make any other statement inconsistent with the Parent Recommendation (any of the foregoing, a “Parent Change of Recommendation”); or (ii) enter into a written definitive agreement providing for a Parent Acquisition Transaction.
(e) The Board of Directors of Parent may at any time prior to receipt of the Parent Stockholder Approval, (A) effect a Parent Change of Recommendation in respect of a Parent Acquisition Proposal; and (B) terminate this Agreement pursuant to Section 8.1(d)(iii) in order to enter into a written definitive agreement providing for a Parent Acquisition Transaction, if (and only if): (i) a Parent Acquisition Proposal is made to Parent by a third party, and such offer is not withdrawn; (ii) Parent’s Board of Directors determines in good faith after consultation with its financial advisors that such offer constitutes a Parent Superior Offer; (iii) following consultation with outside legal counsel, Parent’s Board of Directors determines that the failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws; (iv) Parent provides the Company five (5) Business Days’ prior written notice of its intention to take such action, which notice shall include the information with respect to such Parent Superior Offer that is specified in Section 6.5(b) (it being understood that any material revision or amendment to the terms of such Parent Superior Offer shall require a new notice and, in such case, all references to five (5) Business Days in this Section 6.5(e) shall be deemed to be three (3) Business Days); and (v) at the end of the five (5) Business Day period described in clause (iv), the Board of Directors of Parent again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (after negotiating in good faith with the Company and its Representatives, if requested by the Company, during such five (5) Business Day period regarding any adjustments or modifications to the terms of this Agreement proposed by the Company and taking into account any such adjustments or modifications) that Parent Acquisition Proposal continues to be a Parent Superior Offer and that the failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws.
(f) The Board of Directors of the Company may, at any time prior to receipt of the Parent Stockholder Approval, effect a Parent Change of Recommendation in response to an event, change, effect, development, condition or occurrence that affects or would be reasonably likely to affect (x) the business, financial condition or continuing results of operations of Parent and its Subsidiaries, taken as a whole, or (y) the benefits of the Merger to Parent or the stockholders of Parent, in either case that is (1) material, individually or in the aggregate with any other such events, changes, effects, developments, conditions or occurrences, (2) does not involve or relate to a Parent Acquisition Proposal and (3) is not known (or the material consequences of which are not known or understood) as of the date hereof if (and only if): (i) following consultation with outside legal counsel, Parent’s Board of Directors determines that the failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws; (ii) Parent provides the Company five (5) Business Days’ prior written notice of its intention to take such action, which notice shall include the information with respect to any such events, changes, effects, developments, conditions or occurrences; and (iii) at the end of the five (5) Business Day period described in clause (ii), the Board of Directors of Parent again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (after negotiating in good faith with the Company and its Representatives, if requested by the Company, during such five (5) Business Day period regarding any adjustments or modifications to the terms of this Agreement proposed by the Company and taking into account any such adjustments or modifications) that the failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws.
(g) Notwithstanding a Parent Change of Recommendation pursuant to Section 6.5(f), Parent shall nevertheless submit this Agreement to the stockholders of Parent for the purpose of obtaining the Parent Stockholder Approval at the Parent Stockholders’ Meeting and nothing contained herein shall be deemed to relieve Parent of such obligation, unless this Agreement shall have been terminated in accordance with its terms prior to the Parent Stockholders’ Meeting.
(h) The parties agree that a Parent Change of Recommendation effected in accordance with Section 6.5(e) or Section 6.5(f) shall not in and of itself violate any other provision of this Agreement.
(i) During the period from the date of this Agreement through the Effective Time, neither Parent nor any of its Subsidiaries shall terminate, amend, modify or waive any provision of any confidentiality agreement to which it is a party relating to a proposed business combination involving Parent or any standstill agreement to which it is a party unless the Board of Directors of Parent determines in good faith, after consultation with outside legal counsel, that failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws. During such period, Parent or its Subsidiaries, as the case may be, shall enforce, to the fullest extent permitted under applicable Law, the provisions of any such agreement, including by obtaining injunctions to prevent any breaches of such agreements and to enforce specifically the terms and provisions thereof in each case except to the extent that the Board of Directors of Parent determines in good faith, after consultation with outside legal counsel, that taking such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws.
Appears in 1 contract
Samples: Merger Agreement (Minim, Inc.)
Non-Solicitation by Parent. (a) Until the earlier of the Effective Time and the termination of this Agreement in accordance with Article VIII, Parent agrees that neither it nor any Subsidiary of Parentand its Subsidiaries shall not, nor any of and Parent shall cause its and their respective officers, directors or employees, shalland employees not to, and that it Parent shall use its reasonable best efforts to cause its and their respective Representatives not to (and shall not authorize or give permission to its and their respective Representatives to), directly or indirectly: (i) solicit, initiate, seek or knowingly encourage or facilitate the making, submission or announcement of any inquiry, discussion, request, offer or proposal that constitutes, or would reasonably be expected to lead to, a Parent Acquisition Proposal, (ii) furnish any nonpublic non-public information regarding Parent or any of its Subsidiaries to, or afford access to the properties, books and records of Parent or any Person (other than the Company) of its Subsidiaries to, any Third Party, in connection with or in response to, or that would be reasonably likely to lead to, a Parent Acquisition Proposal, (iii) continue or otherwise engage or participate in any discussions or negotiations with any Person (other than the Company) Third Party with respect to, or that would be reasonably likely to lead to, any Parent Acquisition Proposal, or (iv) except in connection with a Parent Change of Recommendation pursuant to Section 6.5(e), adopt or approve, endorse or recommend any Parent Acquisition Proposal or (v) except in connection with a Parent Change of Recommendation pursuant to Section 6.5(e), enter into any letter of intent, arrangement agreement in principle, memorandum of understanding, term sheet, merger agreement, acquisition agreement, option agreement or understanding any other agreement (other than an Acceptable Confidentiality Agreement) or instrument providing for or relating to to, any Parent Acquisition Transaction (other than a confidentiality agreement as contemplated by this Section 6.5(a))Proposal; provided, however, that this Section 6.5 6.5(a) shall not prohibit (A) Parent, or the Board of Directors of Parent, directly or indirectly through any officer, employee or Representative of Parent or any of its SubsidiariesRepresentative, prior to obtaining the Parent Stockholder Approval, from furnishing nonpublic information regarding Parent or taking any of its Subsidiaries to, the actions described in clauses (ii) or entering into or participating in discussions or negotiations with, any Person (iii) above in response to an unsolicited, a bona fide written Parent Acquisition Proposal received by Parent or its directors, officers, employees or Representatives from a Third Party after the execution and delivery of this Agreement which did not result from or arise in connection with a breach of this Section 6.5(a) that is not withdrawn if (but only if): (1) the Board of Directors of Parent concludes determines in good faith, after consultation with its a financial advisorsadvisor of nationally recognized reputation and outside legal counsel, that such Parent Acquisition Proposal constitutes or could is reasonably be expected to result in a Parent Superior Offer if Offer, (12) the Board of Directors of Parent determines in good faith, after consultation with outside legal counsel, that the failure to take such action with respect to such Parent Acquisition Proposal did not result from a material breach would be reasonably likely to be inconsistent with the exercise by the Board of this Section 6.5Directors of its fiduciary duties under applicable Law, (23) prior thereto Parent has given gives to the Company the notice (which notice must state that Parent’s Board of Directors’ has made the determinations contemplated by the foregoing clauses (1) and (2)), required by Section 6.5(b) and ), (34) Parent furnishes any nonpublic non-public information provided and/or provides access to such Third Party (or its directors, officers, employees or Representatives) only after such Third Party enters into an Acceptable Confidentiality Agreement with Parent and only pursuant thereto; (B) Parent from waiving any standstill or similar provisions in any Acceptable Confidentiality Agreement entered into after the maker date of this Agreement in order to permit the counterparty thereto to make a Parent Acquisition Proposal only pursuant to a confidentiality agreement between Parent and such Person containing customary terms and conditions substantially similar to those contained in the Confidentiality Agreement; or (BC) Parent from complying with Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to any Parent Acquisition Proposal (it being understood Proposal; provided, however, that compliance with such rules shall not in any way limit or modify the effect that any action taken pursuant to such disclosure that constitutes a Parent Change of Recommendation shall be subject to the provisions rules may have under any other provision of this Section 6.5 with respect thereto)Agreement.
(b) From and after the date hereof until the earlier of the Effective Time and the termination of this Agreement in accordance with Article VIII, Parent shall promptly, promptly (and in no any event later than within twenty-four (24) hours, after its receipt of any Parent Acquisition Proposal, or any request for nonpublic information relating to Parent or any of its Subsidiaries in connection with a Parent Acquisition Proposal, advise ) notify the Company orally and in writing of such its receipt of (i) any Parent Acquisition Proposal (whether written, oral or otherwise), (ii) any inquiry or request for information regarding Parent or any of its Subsidiaries or for access to the properties, books and records of Parent or any of its Subsidiaries, in each case, in connection with or in response to a Parent Acquisition Proposal, or (including providing iii) any discussions or negotiations sought to be entered into or continued with Parent, any of its Subsidiaries or its or their respective directors, officers, employees or Representatives with any Third Party (or its directors, officers, employees or Representatives) in connection with or in response to, or that would be reasonably likely to lead to, a Parent Acquisition Proposal. Any such notice pursuant to the foregoing sentence shall include (A) the identity of the Person Third Party making or submitting such Parent Acquisition Proposal or request, and, (iB) if it is in writing, a copy of such Parent Acquisition Proposal and any related draft agreements or agreements, and (iiC) if it is oral, a reasonably detailed summary thereof that is made or submitted by of any Person during the period between the date hereof material communications relating to, and the Closing)material terms and conditions of, such Parent Acquisition Proposal or request. Parent shall keep the Company reasonably informed on a prompt basis with respect to any change to the material terms of any such Parent Acquisition Proposal (and, in the case of a change of the amount of consideration being offered, and in no event later than twenty-four (24) hours following any such change)) to any of the financial terms or any other material term or condition of any such Parent Acquisition Proposal, including providing the information and documents set forth in clauses (A) through (C) of the foregoing sentence with respect to any material change thereto. Parent shall promptly provide to the Company any non-public information regarding Parent and its Subsidiaries and promptly provide access to the properties, books and records of Parent and its Subsidiaries provided to any such Third Party which was not previously provided to the Company. Parent shall not enter into any agreement (or amend or modify any existing agreement) with a copy any Third Party which would prevent Parent or any of any draft agreements and modifications thereofits Subsidiaries or their respective Representatives from complying with this Section 6.5(b).
(c) Upon Immediately following the execution of this Agreement, Parent shall, and shall cause its Subsidiaries and its and their respective officers, directors and employees, and shall use its reasonable best efforts to cause its and their respective Representatives to, (i) immediately cease and terminate any existing activitiesand all solicitations, discussions or negotiations existing as of the date of this Agreement between Parent or any of its Subsidiaries or any of their respective officers, directors, employees or Representatives and any Person Third Party (or its Representatives) in connection with or in response to a Parent Acquisition Proposal, and (ii) request that each such Third Party and its Representatives promptly return or destroy all confidential information theretofore furnished thereto by or on behalf of Parent or any of its Subsidiaries (and destroy all analyses and other than the Companymaterials prepared by or on behalf of such Third Party that contain, reflect or analyze such information). If Parent becomes aware of any material breach by a Third Party (or its Representatives) that relate of any standstill provision to which such Third Party is subject pursuant to any agreement with Parent Acquisition Proposal and or any of its Subsidiaries, Parent shall use reasonable best efforts take all necessary actions to obtain the prompt return or destruction of any confidential information previously furnished to enforce such Persons within twelve (12) months of the date hereofstandstill provision.
(d) Except as otherwise provided in Section 6.5(e) or Section 6.5(f), none of the Parent, neither Parent nor the Board of Directors of Parent nor or any committee thereof may shall (i) withhold, withdraw, qualify withdraw or modify, or publicly propose to withhold, withdraw, qualify withdraw or modify, the Parent Recommendation in a manner adverse to the Company or make any other statement inconsistent with Company, including by failing to include the Parent Recommendation in the Joint Proxy Statement and Form S-4, or (ii) recommend, adopt or approve, or propose publicly to recommend, adopt or approve, any Parent Acquisition Proposal (any of the foregoingaction described in this Section 6.5(d), a “Parent Change of Recommendation”); or (ii) enter into a written definitive agreement providing for a Parent Acquisition Transaction.
(e) The Board of Directors of Parent may at any time prior to receipt of the Parent Stockholder Approval, (A) effect a Parent Change of Recommendation Notwithstanding anything in respect of a Parent Acquisition Proposal; and (B) terminate this Agreement pursuant to Section 8.1(d)(iii) in order to enter into a written definitive agreement providing for a Parent Acquisition Transaction, if (and only if): (i) a Parent Acquisition Proposal is made to Parent by a third party, and such offer is not withdrawn; (ii) Parent’s Board of Directors determines in good faith after consultation with its financial advisors that such offer constitutes a Parent Superior Offer; (iii) following consultation with outside legal counsel, Parent’s Board of Directors determines that the failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws; (iv) Parent provides the Company five (5) Business Days’ prior written notice of its intention to take such action, which notice shall include the information with respect to such Parent Superior Offer that is specified in Section 6.5(b) (it being understood that any material revision or amendment to the terms of such Parent Superior Offer shall require a new notice and, in such case, all references to five (5) Business Days in this Section 6.5(e) shall be deemed to be three (3) Business Days); and (v) at the end of the five (5) Business Day period described in clause (iv)contrary, the Board of Directors of Parent again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (after negotiating in good faith with the Company and its Representatives, if requested by the Company, during such five (5) Business Day period regarding any adjustments or modifications to the terms of this Agreement proposed by the Company and taking into account any such adjustments or modifications) that Parent Acquisition Proposal continues to be a Parent Superior Offer and that the failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws.
(f) The Board of Directors of the Company may, at any time prior to receipt of the Parent Stockholder Approval, effect a Parent Change of Recommendation in response to an event, change, effect, development, condition connection with or occurrence that affects or would be reasonably likely to affect (x) the business, financial condition or continuing results of operations of Parent and its Subsidiaries, taken as a whole, or (y) the benefits of the Merger to Parent or the stockholders of Parent, in either case that is (1) material, individually or in the aggregate with any other such events, changes, effects, developments, conditions or occurrences, (2) does not involve or relate relating to a Parent Acquisition Proposal and (3provided that, for the avoidance of doubt, such actions will nonetheless constitute a Parent Change of Recommendation) is not known (or the material consequences of which are not known or understood) as of the date hereof terminate this Agreement pursuant to Section 8.1(k), if (and but only if): ):
(i) following consultation a bona fide written Parent Acquisition Proposal is received by Parent or its directors, officers, employees or Representatives from a Third Party after the execution and delivery of this Agreement which did not result from, arise in connection with outside legal counsel, Parent’s Board of Directors determines that the failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws; this Section 6.5 and such Parent Acquisition Proposal is not withdrawn;
(ii) Parent provides the Company five (5) Business Days’ prior written notice of its intention to take such action, which notice shall include the information with respect to any such events, changes, effects, developments, conditions or occurrences; and (iii) at the end of the five (5) Business Day period described in clause (ii), the Board of Directors of Parent again makes the determination determines in good faith faith, after consultation with its a financial advisor of nationally recognized reputation and outside legal counsel and financial advisors (after negotiating in good faith with the Company and its Representativescounsel, if requested by the Company, during that such five (5) Business Day period regarding any adjustments or modifications to the terms of this Agreement proposed by the Company and taking into account any such adjustments or modifications) that the failure to take such action would be reasonably likely to result in Parent Acquisition Proposal constitutes a breach of its fiduciary duties under applicable Laws.Parent Superior Offer;
(giii) Notwithstanding a Parent Change of Recommendation pursuant to Section 6.5(f), Parent shall nevertheless submit this Agreement to the stockholders of Parent for the purpose of obtaining the Parent Stockholder Approval at the Parent Stockholders’ Meeting and nothing contained herein shall be deemed to relieve Parent of such obligation, unless this Agreement shall have been terminated in accordance with its terms prior to the Parent Stockholders’ Meeting.
(h) The parties agree that a Parent Change of Recommendation effected in accordance with Section 6.5(e) or Section 6.5(f) shall not in and of itself violate any other provision of this Agreement.
(i) During the period from the date of this Agreement through the Effective Time, neither Parent nor any of its Subsidiaries shall terminate, amend, modify or waive any provision of any confidentiality agreement to which it is a party relating to a proposed business combination involving Parent or any standstill agreement to which it is a party unless the Board of Directors of Parent determines in good faith, after consultation with outside legal counsel, that the failure to take effect a Parent Change of Recommendation or terminate this Agreement pursuant to Section 8.1(k) with respect to such action Parent Superior Offer would be reasonably likely to result in a breach be inconsistent with the exercise of its the Board of Directors’ fiduciary duties under applicable Laws. During Law;
(iv) Parent provides the Company at least four Business Days’ prior written notice stating that Parent will effect a Parent Change of Recommendation pursuant to this Section 6.5(e) or terminate this Agreement pursuant to Section 8.1(k) after the expiration of such four Business Day period and providing the information described in clauses (A) through (C) of Section 6.5(b) with respect to such Parent Superior Offer (mutatis mutandis); provided, however, that any change to the financial terms or any other material change to the terms and conditions of any such Parent Superior Offer shall require a new written notice to be delivered by Parent to the Company and Parent shall be required to comply again with the requirements of this Section 6.5(e) (provided, that references to the four Business Day period above shall be deemed to refer to a three Business Day period in connection with the delivery of any such new notice); and
(v) at the end of such four Business Day period described in clause (iv) (or three Business Day period, as applicable), the Board of Directors of Parent again determines in good faith, after consultation with a financial advisor of nationally recognized reputation and outside legal counsel, and taking into account any adjustment or its Subsidiaries, as the case may be, shall enforce, modification to the fullest extent permitted terms and conditions of this Agreement proposed by the Company, that the Parent Acquisition Proposal continues to constitute a Parent Superior Offer and that the failure to effect a Parent Change of Recommendation, or terminate this Agreement pursuant to Section 8.1(k), with respect to such Parent Superior Offer would be reasonably likely to be inconsistent with the exercise of the Board of Directors’ fiduciary duties under applicable Law.
(f) Notwithstanding anything in this Agreement to the contrary, the provisions Board of Directors of Parent may, at any time prior to receipt of the Parent Stockholder Approval, take the actions described in clause (i) of Section 6.5(d), not in connection with or in any way relating to a Parent Acquisition Proposal (provided, that, for the avoidance of doubt, such agreementactions will nonetheless constitute a Parent Change of Recommendation), including by obtaining injunctions to prevent if (but only if):
(i) any breaches of such agreements and to enforce specifically material development or change in circumstances occurs or arises after the terms and provisions thereof in each case except date hereof that was neither known to the extent that Board of Directors of Parent nor reasonably foreseeable at the date of this Agreement (and which change or development does not relate to a Parent Acquisition Proposal);
(ii) the Board of Directors of Parent determines in good faith, after consultation with outside legal counsel, counsel that taking the failure to effect a Parent Change of Recommendation with respect to such action development or change in circumstances would be reasonably likely to result in a breach be inconsistent with the exercise of its the Board of Directors’ fiduciary duties under applicable LawsLaw;
(iii) Parent provides the Company at least four Business Days’ prior written notice stating that Parent will effect a Parent Change of Recommendation pursuant to this Section 6.5(f) after the expiration of such four Business Day period and describing in reasonable detail such development or change in circumstances; provided, however, that any subsequent development or change in circumstances shall require a new written notice to be delivered by Parent to the Company and Parent shall be required to comply again with the requirements of this Section 6.5(f) (provided, that references to the four Business Day period above shall be deemed to refer to a three Business Day period in connection with the delivery of any such new notice); and
(iv) at the end of such four Business Day period described in clause (iii) (or three Business Day period, as applicable), the Board of Directors of Parent again determines in good faith, after consultation with outside legal counsel, and taking into account any adjustment or modification to the terms and conditions of this Agreement proposed by the Company, that the failure to effect a Parent Change of Recommendation with respect to such development or change in circumstances would be reasonably likely to be inconsistent with the exercise of the Board of Directors’ fiduciary duties under applicable Law.
(g) Parent agrees that any breach of this Section 6.5 by any Representative of Parent or any Subsidiary of Parent who is a director, officer or employee of Parent or any Subsidiary of Parent or who is (i) a senior-level employee or officer (i.e., a managing director (or similar title) or more senior) of any financial advisor or investment bank or (ii) a partner of any law firm, in either case retained by Parent or any Subsidiary of Parent, shall be deemed to be a breach of this Section 6.5 by Parent for all purposes of this Agreement.
Appears in 1 contract
Samples: Merger Agreement (NRG Energy, Inc.)
Non-Solicitation by Parent. (a) Parent agrees that neither it nor any Subsidiary of Parent, nor any of their respective officers, directors or employees, shall, and that it shall use its reasonable best efforts to cause its and their respective Representatives not to (and shall not authorize or give permission to permit its and their respective Representatives to), directly or indirectly: (i) solicit, initiate, seek or knowingly encourage (including by way of furnishing information) or knowingly take any other action designed to facilitate any inquiries or the making, submission or announcement of any Parent Acquisition Proposal, (ii) furnish any nonpublic information regarding Parent or any of its Subsidiaries to any Person person (other than the Company) in connection with or in response to a Parent Acquisition Proposal, (iii) continue or otherwise engage or participate in any discussions or negotiations with any Person person (other than the Company) with respect to any Parent Acquisition Proposal, (iv) except in connection with a Parent Change of Recommendation pursuant to Section 6.5(e), approve, endorse or recommend any Parent Acquisition Proposal or (v) except in connection with a Parent Change of Recommendation pursuant to Section 6.5(e), enter into any letter of intent, arrangement agreement in principle or understanding relating to other agreement providing for any Parent Acquisition Transaction (other than a confidentiality agreement except as contemplated by this Section 6.5(a7.1(k)); provided, however, that this Section 6.5 5.5 shall not prohibit (A) Parent, or the Board of Directors of Parent, directly or indirectly through any officer, employee or Representative of Parent or any of its SubsidiariesRepresentative, prior to obtaining the receipt of the Parent Stockholder Shareholder Approval, from furnishing nonpublic information regarding Parent or any of its Subsidiaries to, or entering into or participating in discussions or negotiations with, any Person person in response to an unsolicited, bona fide written Parent Acquisition Proposal that the Board of Directors of Parent concludes in good faith, after consultation with its financial advisors, constitutes or could is reasonably be expected likely to result in lead to a Parent Superior Offer if (1) the Board of Directors of Parent concludes in good faith, after consultation with its outside legal counsel, that the failure to take such action with respect to such Parent Acquisition Proposal would be reasonably likely to be inconsistent with the exercise by the Board of Directors of their fiduciary duties under applicable Laws, (2) such Parent Acquisition Proposal did not result from a material breach of this Section 6.55.5(a) (other than any such breach that is unintentional and immaterial in effect), (23) prior thereto Parent has given gives to the Company the notice required by Section 6.5(b) 5.5(b), and (34) Parent furnishes any nonpublic information provided to the maker of the Parent Acquisition Proposal only pursuant to a confidentiality agreement between Parent and such Person containing customary person on terms and conditions substantially similar no less favorable to those contained in Parent than the Confidentiality Agreement (provided that such confidentiality agreement shall not in any way restrict Parent from complying with its disclosure obligations under this Agreement, including with respect to such proposal), and such furnished information is delivered to the Company at substantially the same time (to the extent such information has not been previously furnished or made available by Parent to the Company); or (B) Parent from complying with Rules taking and disclosing to its shareholders a position contemplated by Rule 14d-9 and 14e-2 Rule 14e-2(a) promulgated under the Exchange Act with regard to any Parent Acquisition Proposal (it being understood Proposal, provided, however, that compliance with such rules shall not in any way limit or modify the effect that any action taken pursuant to such disclosure rules has under any other provision of this Agreement and in no event shall Parent or the Parent Board of Directors or a committee thereof take any action that constitutes would constitute a Parent Change in Recommendation in respect of Recommendation shall be subject to the provisions of this a Parent Acquisition Proposal other than in compliance with Section 6.5 with respect thereto5.5(d).
(b) Parent shall promptly, and in no event later than twenty-four (24) hours, 24 hours after its receipt of any Parent Acquisition Proposal, or any request for nonpublic information relating to Parent or any of its Subsidiaries in connection with a Parent Acquisition Proposal, advise the Company orally and in writing of such Parent Acquisition Proposal or request (request, including providing the identity of the Person person making or submitting such Parent Acquisition Proposal or request, and, (ix) if it is in writing, a copy of such Parent Acquisition Proposal and any related draft agreements or and (iiy) if it is oral, a reasonably detailed summary thereof of any such Parent Acquisition Proposal or request that is made or submitted by any Person person during the period between the date hereof and the Closing). Parent shall (i) keep the Company informed in all material respects on a prompt basis with respect to any change to the status or material terms of any such Parent Acquisition Proposal (and, in the case of a change of the amount of consideration being offered, and in no event later than twenty-four (24) 24 hours following any such change), including providing (ii) provide to the Company as soon as practicable after receipt or delivery thereof with copies of all correspondence and other written material sent or provided to Parent from any third party in connection with any Parent Acquisition Proposal or sent or provided by Parent to any third party in connection with any Parent Acquisition Proposal and (iii) provide the Company with a copy advance written notice of any draft agreements and modifications thereofscheduled meeting of the Parent Board of Directors to discuss a Parent Acquisition Proposal.
(c) Upon the execution of this Agreement, Parent shall, and shall cause its Subsidiaries and its and their respective officers, directors and employees, and shall use its reasonable best efforts to cause its and their respective Representatives to, immediately cease and terminate any discussions existing activities, discussions or negotiations as of the date of this Agreement between Parent or any of its Subsidiaries or any of their respective officers, directors, employees or Representatives and any Person person (other than the Company) that relate to any Parent Acquisition Proposal and, to the extent provided by the applicable confidentiality agreement or similar agreement governing such discussions, require any third party to such discussions to return to Parent or to destroy all confidential information of Parent and shall its Subsidiaries. Parent agrees not to, and to cause its Subsidiaries not to, waive, or otherwise release any third party from, the confidentiality and standstill provisions of any agreement to which Parent or any of its Subsidiaries is or may become a party and agrees to use commercially reasonable best efforts to obtain enforce the prompt return or destruction provisions of any confidential information previously furnished to such Persons within twelve (12) months of the date hereofagreements.
(d) Except as otherwise provided in contemplated by this Section 6.5(e) or Section 6.5(f5.5(d), none of the Parent, neither the Board of Directors of Parent nor any committee thereof may shall (i) (A) withhold, withdraw, qualify or modify, or resolve to or publicly propose to withhold, withdraw, qualify or modify, modify the Parent Recommendation in a manner adverse to the Company or Company, (B) make any other public statement in connection with the Parent Shareholders’ Meeting or this Agreement or the Transactions inconsistent with the Parent Recommendation, (C) approve, adopt or recommend any Parent Acquisition Proposal or (D) fail to reaffirm or re-publish the Parent Recommendation within five days of being requested by the Company to do so (any of the foregoing, each such action set forth in clauses (A) through (D) above being a “Parent Change of Recommendation”); ) or (ii) enter into approve, adopt or recommend, or publicly propose to approve, adopt or recommend, a written definitive merger agreement, letter of intent, agreement in principle, share purchase agreement, asset purchase agreement, share exchange agreement, option agreement or other similar contract (other than the confidentiality agreement referred to in Section 5.5(a)) or any tender offer providing for a for, with respect to, or in connection with any Parent Acquisition Transaction.
(e) The Proposal. Notwithstanding the foregoing, the Board of Directors of Parent may at any time prior to receipt of the Parent Stockholder Shareholder Approval, (A) effect a Parent Change of Recommendation in respect of a Parent Acquisition Proposal; , make a Parent Change of Recommendation and (Bii) terminate this Agreement pursuant to Section 8.1(d)(iii7.1(k) in order to enter into a written definitive agreement providing for a Parent Acquisition Transactionof this Agreement, if (and only if): (iA) a Parent Acquisition Proposal is made to Parent by a third party, and such offer is not withdrawn; (ii) Parent’s Board of Directors determines in good faith after consultation with its financial advisors that such offer constitutes a Parent Superior Offer; (iii) following consultation with outside legal counsel, Parent’s Board of Directors determines that the failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws; (iv) Parent provides the Company five (5) Business Days’ prior written notice of its intention to take such action, which notice shall include the information with respect to such Parent Superior Offer that is specified in Section 6.5(b) (it being understood that any material revision or amendment to the terms of such Parent Superior Offer shall require a new notice and, in such case, all references to five (5) Business Days in this Section 6.5(e) shall be deemed to be three (3) Business Days); and (v) at the end of the five (5) Business Day period described in clause (iv), the Board of Directors of Parent again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (after negotiating in good faith with the Company and its Representatives, if requested by the Company, during such five (5) Business Day period regarding any adjustments or modifications to the terms of this Agreement proposed by the Company and taking into account any such adjustments or modifications) that Parent Acquisition Proposal continues to be a Parent Superior Offer and that the failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws.
(f) The Board of Directors of the Company may, at any time prior to receipt of the Parent Stockholder Approval, effect a Parent Change of Recommendation in response to an event, change, effect, development, condition or occurrence that affects or would be reasonably likely to affect (x) the business, financial condition or continuing results of operations of Parent and its Subsidiaries, taken as a whole, or (y) the benefits of the Merger to Parent or the stockholders of Parent, in either case that is (1) material, individually or in the aggregate with any other such events, changes, effects, developments, conditions or occurrences, (2) does not involve or relate to a Parent Acquisition Proposal and (3) is not known (or the material consequences of which are not known or understood) as of the date hereof if (and only if): (i) following consultation with outside legal counsel, Parent’s Board of Directors determines that the failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws; (ii) Parent provides the Company five (5) Business Days’ prior written notice of its intention to take such action, which notice shall include the information with respect to any such events, changes, effects, developments, conditions or occurrences; and (iii) at the end of the five (5) Business Day period described in clause (ii), the Board of Directors of Parent again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (after negotiating in good faith with the Company and its Representatives, if requested by the Company, during such five (5) Business Day period regarding any adjustments or modifications to the terms of this Agreement proposed by the Company and taking into account any such adjustments or modifications) that the failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws.
(g) Notwithstanding a Parent Change of Recommendation pursuant to Section 6.5(f), Parent shall nevertheless submit this Agreement to the stockholders of Parent for the purpose of obtaining the Parent Stockholder Approval at the Parent Stockholders’ Meeting and nothing contained herein shall be deemed to relieve Parent of such obligation, unless this Agreement shall have been terminated in accordance with its terms prior to the Parent Stockholders’ Meeting.
(h) The parties agree that a Parent Change of Recommendation effected in accordance with Section 6.5(e) or Section 6.5(f) shall not in and of itself violate any other provision of this Agreement.
(i) During the period from the date of this Agreement through the Effective Time, neither Parent nor any of its Subsidiaries shall terminate, amend, modify or waive any provision of any confidentiality agreement to which it is a party relating to a proposed business combination involving Parent or any standstill agreement to which it is a party unless the Board of Directors of Parent determines in good faith, after consultation with outside legal counsel, that failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws. During such period, Parent or its Subsidiaries, as the case may be, shall enforce, to the fullest extent permitted under applicable Law, the provisions of any such agreement, including by obtaining injunctions to prevent any breaches of such agreements and to enforce specifically the terms and provisions thereof in each case except to the extent that the Board of Directors of Parent determines in good faith, after consultation with outside legal counsel, that taking such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws.;
Appears in 1 contract
Samples: Merger Agreement
Non-Solicitation by Parent. (a) Beginning on the date hereof and continuing until the earlier of the Closing Date or the date, if any, on which this Agreement is terminated pursuant to Article 7, Parent agrees that neither it nor any Subsidiary of Parent, nor any of their respective officers, directors or employees, shall, will not and that it shall use its reasonable best efforts to will cause its and their respective Representatives Subsidiaries or any Representative of Parent or its Subsidiaries, not to (and shall not authorize or give permission to its and their respective Representatives to), directly or indirectly: , (i) solicit, initiate, seek knowingly encourage, induce or knowingly encourage facilitate the making, submission or announcement of any Parent Acquisition Proposal or take any action that would reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any nonpublic information regarding Parent or any of its Subsidiaries to any Person (other than the Company) in connection with or in response to a Parent an Acquisition Proposal or an inquiry or indication of interest that could lead to an Acquisition Proposal, (iii) continue or otherwise engage or participate in any discussions or negotiations with any Person (other than the Company) with respect to any Parent Acquisition Proposal, (iv) except in connection with a Parent Change of Recommendation pursuant to Section 6.5(e), approve, endorse or recommend any Parent Acquisition Proposal or (v) except in connection with a Parent Change of Recommendation pursuant to Section 6.5(e), enter into any letter of intent, arrangement intent or understanding similar document or any agreement contemplating or otherwise relating to any Parent Acquisition Transaction (other than a confidentiality agreement as contemplated by this Section 6.5(a)an Acceptable Parent Confidentiality Agreement); provided, however, that prior to the adoption of this Agreement by the Parent Shareholder Approval, this Section 6.5 shall 5.13(a) will not prohibit (A) the Board of Directors of Parent, directly or indirectly through any officer, employee or Representative of Parent or any of its Subsidiaries, prior to obtaining the Parent Stockholder Approval, from furnishing nonpublic information regarding Parent or any of and its Subsidiaries to, or entering into or participating in discussions or negotiations with, or facilitating or cooperating with the submission of, an Acquisition Proposal made by any Person in response to an unsolicited, bona fide written Parent any such Acquisition Proposal that that, after consultation with a financial advisor and outside legal counsel, Parent’s board of directors determines in good faith is, or would reasonably be expected to result in, a Superior Offer (and is not withdrawn) if (1) such Acquisition Proposal did not result from a breach of this Section 5.13(a), (2) the Board board of Directors directors of Parent concludes in good faith, after consultation having taken into account the advice of its outside legal counsel, that such action is required in order for the board of directors of Parent to comply with its financial advisorsfiduciary obligations to the Parent’s shareholders under applicable Legal Requirements, constitutes or could reasonably be expected to result in a Parent Superior Offer if (13) such Parent Acquisition Proposal did not result from a material breach of this Section 6.5, at least two (2) Business Days prior thereto to furnishing any such information to, or entering into discussions with, such Person, Parent has given the gives Company the written notice required by Section 6.5(b) and (3) Parent furnishes any nonpublic information provided to the maker of the identity of such Person, the terms and conditions of any proposals or offers (including, if applicable, copies of any written requests, proposals or offers, including proposed agreements) made thereby and of Parent’s intention to furnish information to, or enter into discussions with, such Person, and Parent Acquisition Proposal only pursuant receives from such Person an executed confidentiality agreement on terms no less favorable to a Parent than the confidentiality agreement between Parent and such Person containing customary terms and conditions substantially similar to those contained in the Confidentiality Agreement; or (B) Parent from complying with Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to any Parent Acquisition Proposal (it being understood that any such disclosure that constitutes a Parent Change of Recommendation shall be subject to the provisions of this Section 6.5 with respect thereto).
(b) Parent shall promptly, and in no event later than twenty-four (24) hours, after its receipt of any Parent Acquisition Proposal, or any request for nonpublic information relating to Parent or any of its Subsidiaries in connection with a Parent Acquisition Proposal, advise the Company orally and in writing of such Parent Acquisition Proposal or request (including providing the identity of the Person making or submitting such Parent Acquisition Proposal or request, and, (i) if it is in writing, a copy of such Parent Acquisition Proposal and any related draft agreements or (ii) if it is oral, a reasonably detailed summary thereof that is made or submitted by any Person during the period between the date hereof and the Closing). Parent shall keep the Company informed on a prompt basis with respect to any change to the material terms of any such Parent Acquisition Proposal (and, in the case of a change of the amount of consideration being offered, in no event later than twenty-four (24) hours following any such change), including providing the Company with a copy of any draft agreements and modifications thereof.
(c) Upon the execution of this Agreement, Parent shall, and shall cause its Subsidiaries and its and their respective officers, directors and employees, and shall use its reasonable best efforts to cause its and their respective Representatives to, immediately cease and terminate any existing activities, discussions or negotiations between Parent or any of its Subsidiaries or any of their respective officers, directors, employees or Representatives and any Person (other than the Company) that relate to any Parent Acquisition Proposal and shall use reasonable best efforts to obtain the prompt return or destruction of any confidential information previously furnished to such Persons within twelve (12) months of the date hereof.
(d) Except as otherwise provided in Section 6.5(e) or Section 6.5(f), none of the Parent, the Board of Directors of Parent nor any committee thereof may (i) withhold, withdraw, qualify or modify, or publicly propose to withhold, withdraw, qualify or modify, the Parent Recommendation in a manner adverse to the Company or make any other statement inconsistent with the Parent Recommendation (any of the foregoing, a “Parent Change of Recommendation”); or (ii) enter into a written definitive agreement providing for a Parent Acquisition Transaction.
(e) The Board of Directors of Parent may at any time prior to receipt of the Parent Stockholder Approval, (A) effect a Parent Change of Recommendation in respect of a Parent Acquisition Proposal; and (B) terminate this Agreement pursuant to Section 8.1(d)(iii) in order to enter into a written definitive agreement providing for a Parent Acquisition Transaction, if (and only if): (i) a Parent Acquisition Proposal is made to Parent by a third party, and such offer is not withdrawn; (ii) Parent’s Board of Directors determines in good faith after consultation with its financial advisors that such offer constitutes a Parent Superior Offer; (iii) following consultation with outside legal counsel, Parent’s Board of Directors determines that the failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws; (iv) Parent provides the Company five (5) Business Days’ prior written notice of its intention to take such action, which notice shall include the information with respect to such Parent Superior Offer that is specified in Section 6.5(b) (it being understood that any material revision or amendment to the terms of such Parent Superior Offer shall require a new notice and, in such case, all references to five (5) Business Days in this Section 6.5(e) shall be deemed to be three (3) Business Days); and (v) at the end of the five (5) Business Day period described in clause (iv), the Board of Directors of Parent again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (after negotiating in good faith with the Company and its Representatives, if requested by containing customary limitations on the Company, during such five (5) Business Day period regarding any adjustments or modifications to the terms use and disclosure of this Agreement proposed by the Company all nonpublic written and taking into account any such adjustments or modifications) that Parent Acquisition Proposal continues to be a Parent Superior Offer and that the failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws.
(f) The Board of Directors of the Company may, at any time prior to receipt of the Parent Stockholder Approval, effect a Parent Change of Recommendation in response to an event, change, effect, development, condition or occurrence that affects or would be reasonably likely to affect (x) the business, financial condition or continuing results of operations of Parent and its Subsidiaries, taken as a whole, or (y) the benefits of the Merger to Parent or the stockholders of Parent, in either case that is (1) material, individually or in the aggregate with any other such events, changes, effects, developments, conditions or occurrences, (2) does not involve or relate to a Parent Acquisition Proposal and (3) is not known (or the material consequences of which are not known or understood) as of the date hereof if (and only if): (i) following consultation with outside legal counsel, Parent’s Board of Directors determines that the failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws; (ii) Parent provides the Company five (5) Business Days’ prior written notice of its intention to take such action, which notice shall include the oral information with respect to any such events, changes, effects, developments, conditions or occurrences; and (iii) at the end of the five (5) Business Day period described in clause (ii), the Board of Directors of Parent again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (after negotiating in good faith with the Company and its Representatives, if requested by the Company, during such five (5) Business Day period regarding any adjustments or modifications to the terms of this Agreement proposed by the Company and taking into account any such adjustments or modifications) that the failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws.
(g) Notwithstanding a Parent Change of Recommendation pursuant to Section 6.5(f), Parent shall nevertheless submit this Agreement to the stockholders of Parent for the purpose of obtaining the Parent Stockholder Approval at the Parent Stockholders’ Meeting and nothing contained herein shall be deemed to relieve Parent of such obligation, unless this Agreement shall have been terminated in accordance with its terms prior to the Parent Stockholders’ Meeting.
(h) The parties agree that a Parent Change of Recommendation effected in accordance with Section 6.5(e) or Section 6.5(f) shall not in and of itself violate any other provision of this Agreement.
(i) During the period from the date of this Agreement through the Effective Time, neither Parent nor any of its Subsidiaries shall terminate, amend, modify or waive any provision of any confidentiality agreement to which it is a party relating to a proposed business combination involving Parent or any standstill agreement to which it is a party unless the Board of Directors of Parent determines in good faith, after consultation with outside legal counsel, that failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws. During such period, Parent or its Subsidiaries, as the case may be, shall enforce, to the fullest extent permitted under applicable Law, the provisions of any such agreement, including by obtaining injunctions to prevent any breaches of such agreements and to enforce specifically the terms and provisions thereof in each case except to the extent that the Board of Directors of Parent determines in good faith, after consultation with outside legal counsel, that taking such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Laws.furnished to
Appears in 1 contract
