Non-Solicitation by the Company. (a) The Company agrees that neither it nor any Subsidiary of the Company, 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 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 Company Acquisition Proposal, (ii) furnish any nonpublic information regarding the Company or any of its Subsidiaries to any person (other than Parent or Merger Sub) in connection with or in response to a Company Acquisition Proposal, (iii) engage or participate in any discussions or negotiations with any person (other than Parent or Merger Sub) with respect to any Company Acquisition Proposal, (iv) approve, endorse or recommend any Company Acquisition Proposal or (v) enter into any letter of intent, agreement in principle or other agreement providing for any Company Acquisition Transaction (except as contemplated by Section 7.1(j)); provided, however, that this Section 5.4 shall not prohibit (A) the Company, or the Board of Directors of the Company, directly or indirectly through any officer, employee or Representative, prior to the receipt of the Company Stockholder Approval, from furnishing nonpublic information regarding the Company 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 Company Acquisition Proposal that the Board of Directors of the Company concludes in good faith, after consultation with its financial advisors, constitutes or is reasonably likely to lead to a Company Superior Offer if (1) the Board of Directors of the Company concludes in good faith, after consultation with its outside legal counsel, that the failure to take such action with respect to such Company Acquisition Proposal would be reasonably likely to be inconsistent with the exercise by the Board of Directors of their duties under applicable Laws, (2) such Company Acquisition Proposal did not result from a breach of this Section 5.4(a) (other than any such breach that is unintentional and immaterial in effect), (3) the Company gives to Parent the notice required by Section 5.4(b), and (4) the Company furnishes any nonpublic information provided to the maker of the Company Acquisition Proposal only pursuant to a confidentiality agreement between the Company and such person on terms no less favorable to the Company than the Confidentiality Agreement (provided that such confidentiality agreement shall not in any way restrict the Company from complying with its disclosure obligations under this Agreement, including with respect to such proposal), and such furnished information is delivered to Parent at substantially the same time (to the extent such information has not been previously furnished or made available by the Company to Parent); or (B) the Company from taking and disclosing to its stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act with regard to any Company Acquisition 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 rules has under any other provision of this Agreement and in no event shall the Company or the Company Board of Directors or a committee thereof take any action that would constitute a Company Change in Recommendation in respect of a Company Acquisition Proposal other than in compliance with Section 5.4(d). (b) The Company shall promptly, and in no event later than 24 hours after its receipt of any Company Acquisition Proposal, or any request for nonpublic information relating to the Company or any of its Subsidiaries in connection with a Company Acquisition Proposal, advise Parent orally and in writing of such Company Acquisition Proposal or request, including providing the identity of the person making or submitting such Company Acquisition Proposal or request, and, (x) if it is in writing, a copy of such Company Acquisition Proposal and any related draft agreements and (y) if oral, a reasonably detailed summary of any such Company Acquisition Proposal or request that is made or submitted by any person during the period between the date hereof and the Closing. The Company shall (i) keep Parent informed in all material respects on a prompt basis with respect to any change to the status or material terms of any such Company Acquisition Proposal (and in no event later than 24 hours following any such change), (ii) provide to Parent as soon as practicable after receipt or delivery thereof with copies of all correspondence and other written material sent or provided to the Company from any third party in connection with any Company Acquisition Proposal or sent or provided by the Company to any third party in connection with any Company Acquisition Proposal and (iii) provide Parent with advance written notice of any scheduled meeting of the Company Board of Directors to discuss a Company Acquisition Proposal. (c) Upon the execution of this Agreement, the Company 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 as of the date of this Agreement between the Company or any of its Subsidiaries or any of their respective officers, directors, employees or Representatives and any person (other than Parent) that relate to any Company 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 the Company or to destroy all confidential information of the Company and its Subsidiaries. The Company 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 the Company or any of its Subsidiaries is or may become a party and agrees to use commercially reasonable efforts to enforce the provisions of such agreements. (d) Except as contemplated by this Section 5.4(d), neither the Board of Directors of the Company nor any committee thereof shall (i) (A) withhold, withdraw, qualify or modify, or resolve to or publicly propose to withhold, withdraw, qualify or modify the Company Recommendation in a manner adverse to Parent, (B) make any other public statement in connection with the Company Stockholders’ Meeting or this Agreement or the Transactions inconsistent with the Company Recommendation, (C) approve, adopt or recommend any Company Acquisition Proposal or (D) fail to reaffirm or re-publish the Company Recommendation within five days of being requested by Parent to do so (each such action set forth in clauses (A) through (D) above being a “Company Change of Recommendation”) or (ii) approve, adopt or recommend, or publicly propose to approve, adopt or recommend, a 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 5.4(a)) or any tender offer providing for, with respect to, or in connection with any Company Acquisition Proposal. Notwithstanding the foregoing, the Board of Directors of the Company may at any time prior to receipt of the Company Stockholder Approval, in respect of a Company Acquisition Proposal, (i) make a Company Change of Recommendation and (ii) terminate this Agreement pursuant to Section 7.1(j) of this Agreement, if (and only if): (A) a Company Acquisition Proposal is made to the Company by a third party, and such offer is not withdrawn; (B) the Company’s Board of Directors determines in good faith after consultation with its financial advisors that such offer constitutes a Company Superior Offer; (C) following consultation with outside legal counsel, the Company’s Board of Directors determines that the failure to make a Company Change of Recommendation, or to terminate this Agreement pursuant to Section 7.1(j) of this Agreement, would be reasonably likely to be inconsistent with the exercise of its duties under applicable Laws, (D) the Company Board of Directors has provided to Parent five business days prior written notice of its intent to effect a Company Change of Recommendation (which notice shall include the reasonable details regarding the cause for, and nature of, the Company Change of Recommendation and, if requested by Parent, negotiated in good faith with Parent during such five business day period regarding revisions to this Agreement which would avoid such Company Change of Recommendation; and (E) the Company Board of Directors has provided to Parent advance written notice of such Company Change of Recommendation at least two hours prior thereto. The Board of Directors of the Company may not, in respect of a Company Acquisition Proposal, make a Company Change of Recommendation in a manner adverse to Parent except in compliance in all respects with this Section 5.4(d). For the avoidance of doubt, a change of the Company Recommendation to “neutral” is a Company Change of Recommendation. (e) Nothing in this Agreement shall prohibit or restrict the Board of Directors of the Company, at any time prior to receipt of the Company Stockholder Approval, in circumstances not involving or relating to a Company Acquisition Proposal, from effecting a Company Change of Recommendation if the Board of Directors of the Company determines in good faith (after consultation with outside legal counsel) that failure to take such action would be reasonably likely to be inconsistent with the exercise by the Board of Directors of its duties under applicable Laws if (and only if): (A) the Company Board of Directors has provided to Parent five business days prior written notice of its intent to effect a Company Change of Recommendation (which notice shall include the reasonable details regarding the cause for, and nature of, the Company Change of Recommendation) and, if requested by Parent, negotiated in good faith with Parent during such five business day period regarding revisions to this Agreement that would avoid such Company Change of Recommendation and (B) the Company Board of Directors has provided to Parent advance written notice of such Company Change of Recommendation at least two hours prior thereto. (f) As used in this Agreement:
Appears in 3 contracts
Samples: Merger Agreement (Allegheny Energy, Inc), Merger Agreement (Firstenergy Corp), Merger Agreement
Non-Solicitation by the Company. (a) The Company agrees that neither it nor any Subsidiary of the Company, 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 permit give permission to 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 of, any Company proposal that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (ii) furnish any nonpublic non-public information regarding the Company or any of its Subsidiaries to, or afford access to the business, properties, books or records of the Company or any of its Subsidiaries to, any person (other than Parent or Merger Sub) ), in connection with or in response to a Company an Acquisition Proposal, (iii) engage or participate in any discussions or negotiations with any person (other than Parent or Merger Sub) with respect to any Company Acquisition Proposal, (iv) approve, endorse or recommend (or publicly propose to approve, endorse or recommend) any Company Acquisition Proposal or Proposal, (v) enter into any letter of intent, term sheet, memorandum of understanding, merger agreement, acquisition agreement, exchange agreement in principle or any other agreement providing for any Company Acquisition Transaction or requiring the Company to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement (except as contemplated by Section 7.1(j7.1(h)), or (vi) resolve, propose or agree to do any of the foregoing; provided, however, that this Section 5.4 shall not prohibit (A) the Company, or the Board of Directors of the Company, directly or indirectly through any officer, employee or Representative, prior to the receipt of obtaining the Company Stockholder Approval, from furnishing nonpublic information regarding the Company 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 Company unsolicited Acquisition Proposal that the Board of Directors of the Company Company, prior to taking any such particular action, concludes in good faith, after consultation with its financial advisorsadvisors and outside legal counsel (it being understood that, for purposes of this Section 5.4, such a financial advisor or outside legal counsel shall include a financial advisor or outside legal counsel to a duly constituted and acting committee of the Board of Directors of the Company), constitutes or is reasonably likely to lead to result in a Company Superior Offer if (1) the Board of Directors of the Company concludes in good faith, after consultation with its outside legal counsel, that the failure to take such action with respect to such Company Acquisition Proposal would be reasonably likely to be inconsistent with the exercise constitute a breach by the Board of Directors of their its fiduciary duties under applicable Laws, (2) such Company Acquisition Proposal did not result from a breach of this Section 5.4(a) (other than any such breach that is unintentional and immaterial in effect)5.4, (3) the Company gives to Parent the notice required by Section 5.4(b)5.4, and (4) the Company furnishes any nonpublic non-public information provided to the maker of the Company Acquisition Proposal only pursuant to a confidentiality agreement between the Company and such person on substantially the same terms no less favorable to the Company than as the Confidentiality Agreement (provided it being acknowledged and agreed that such confidentiality agreement shall need not in contain a “standstill” or similar provision that prohibits the third party recipient of such information from making any way restrict the Company from complying with its disclosure obligations under this Agreement, including with respect to such proposal), Acquisition Proposal) and such furnished information is delivered to Parent at substantially the same time (to the extent such non-public information that has not been previously furnished or made available by to Parent is made available to the Company maker of the Acquisition Proposal, provide such non-public information to Parent)Parent substantially concurrent with the time that it is provided to such other person; or (B) the Company from taking and disclosing to its stockholders a position contemplated by Rule complying with Rules 14d-9 and Rule 14e-2(a) 14e-2 promulgated under the Exchange Act with regard to any Company Acquisition Proposal, provided, however, that compliance Proposal (or making any similar communication to stockholders in connection with such rules shall not in any way limit amendment to the terms of a tender offer or modify the effect that exchange offer) so long as any action taken pursuant or statement made to such rules has under so comply is consistent with this Section 5.4; (C) the Company, or the Board of Directors, directly or indirectly through any other provision officer, employee or Representative disclosing factual information regarding the business, financial condition or results of this Agreement and in no event shall operations of the Company or the fact that an Acquisition Proposal has been made, the identity of the party making such proposal or the material terms of such proposal in the Proxy Statement or otherwise, to the extent the Company in good faith determines that such information, facts, identity or terms is required to be disclosed under applicable Law or that failure to make such disclosure is reasonably likely to be inconsistent with its fiduciary duties under applicable Law; or (D) the Company, or the Board of Directors, directly or indirectly through any officer, employee or Representative making any statement or disclosure to the Company’s stockholders required by applicable Law; provided that any such action taken or statement or disclosure made that relates to an Acquisition Proposal shall be deemed to be a Change of Recommendation unless the Board of Directors reaffirms its recommendation in favor of the proposed transaction in such statement or disclosure or in connection with such action (except that a committee thereof take any action that would constitute a Company Change in Recommendation in respect of a Company Acquisition Proposal other than mere “stop, look and listen” disclosure in compliance with Rule 14d-9(f) of the 1934 Act shall not constitute a Change of Recommendation). So long as the Company and its Representatives have otherwise complied with this Section 5.4(d)5.4, none of the foregoing shall prohibit the Company and its Representatives from contacting in writing any persons or group of persons who has made an Acquisition Proposal after the date of this Agreement solely to request the clarification of the terms and conditions thereof so as to determine whether the Acquisition Proposal is, or could reasonably be expected to lead to, a Superior Offer, and any such actions shall not be a breach of this Section 5.4.
(b) The Company shall promptly, and in no event later than 24 twenty-four (24) hours after its or any of its Representatives’ receipt of any Company Acquisition Proposal, Proposal or any request for nonpublic non-public information relating to the Company or any of its Subsidiaries in connection with a Company an Acquisition Proposal, advise Parent orally and in writing of such Company Acquisition Proposal or request, request (including providing the identity of the person making or submitting such Company Acquisition Proposal or request, and, (x) if it is in writing, a copy of such Company Acquisition Proposal and any related draft agreements and (y) if oral, a reasonably detailed summary of any such Company Acquisition Proposal or request thereof that is made or submitted by any person during the period between the date hereof and the Closing). The Company shall (i) keep Parent informed in all material respects on a prompt basis with respect to any change to the status or material terms of any such Company Acquisition Proposal (and in no event later than 24 twenty-four (24) hours following any such change), (ii) . The Company agrees that it shall promptly provide to Parent as soon as practicable after receipt any non-public information concerning itself or delivery thereof with copies of all correspondence and other written material sent or its Subsidiaries provided to the Company from any third party other person in connection with any Company Acquisition Proposal or sent or which was not previously provided by the Company to any third party in connection with any Company Acquisition Proposal and (iii) provide Parent with advance written notice of any scheduled meeting of the Company Board of Directors to discuss a Company Acquisition ProposalParent.
(c) Upon Immediately following the execution of this Agreement, (i) the Company 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 as of the date of this Agreement between the Company or any of its Subsidiaries or any of their respective officers, directors, employees or Representatives and any person (other than Parent) that relate to any Company Acquisition Proposal andProposal, 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 and (ii) the Company shall, and shall use its reasonable best efforts to cause its Representatives to, cause to be returned or to destroy destroyed all confidential information provided by or on behalf of the Company and its Subsidiaries. The Company 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 the Company or any of its Subsidiaries is or may become a party and agrees Subsidiary to use commercially reasonable efforts to enforce the provisions of such agreementsperson.
(d) Except as contemplated by this otherwise provided in Section 5.4(d5.4(e), neither the Board of Directors of the Company nor any committee thereof shall may (i) (A) withhold, withdraw, qualify withdraw or modify, or resolve to or publicly propose to withhold, withdrawwithdraw or modify, qualify or modify the Company Recommendation in a manner adverse to Parent, or (Bii) make any other public statement in connection with the Company Stockholders’ Meeting or this Agreement or the Transactions inconsistent with the Company Recommendation, (C) approverecommend, adopt or recommend approve, or propose publicly to recommend, adopt or approve, any Company Acquisition Proposal or (D) fail to reaffirm or re-publish the Company Recommendation within five days of being requested by Parent to do so (each such any action set forth described in clauses (A) through (D) above being this Section 5.4(d), a “Company Change of Recommendation”).
(e) Notwithstanding anything in this Agreement to the contrary, with respect to (i) an Intervening Event or (ii) approve, adopt or recommend, or publicly propose to approve, adopt or recommend, a 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 5.4(a)) or any tender offer providing for, with respect to, or in connection with any Company an Acquisition Proposal. Notwithstanding the foregoing, the Board of Directors of the Company may at any time prior to receipt of the Company Stockholder Approval, in respect of a Company Acquisition Proposal, (i) make a Company Change of Recommendation and (ii) and/or terminate this Agreement pursuant to Section 7.1(j) of this Agreement7.1(h), if (and only if): (A) a Company in the case of (ii) above, (x) an Acquisition Proposal (that did not result from a breach of Section 5.4(a)) is made to the Company by a third party, and such offer Acquisition Proposal is not withdrawn; (By) the Company’s Board of Directors determines in good faith after consultation with its financial advisors and outside legal counsel that such offer Acquisition Proposal constitutes a Company Superior Offer; and (Cz) the Company’s Board of Directors determines to terminate this Agreement pursuant to Section 7.1(h), (B) in the case of (i) above, following consultation with outside legal counsel, the Company’s Board of Directors determines that the failure to make a Company Change of Recommendation, or to terminate this Agreement pursuant to Section 7.1(j) of this Agreement, Recommendation would be reasonably likely to be inconsistent with constitute a breach by the exercise Board of Directors of its fiduciary duties under applicable Laws; (C) in the case of (i) and (ii) above, (Dx) the Company Board of Directors has provided to provides Parent five business days ninety-six (96) hour’s prior written notice of its intent intention to effect a Company Change of Recommendation (take such action, which notice shall include the reasonable details regarding information with respect to such Intervening Event or Superior Offer, as the cause forcase may be, that is specified in Section 5.4(b), (y) after providing such notice and nature ofprior to making such Change of Recommendation in connection with an Intervening Event or a Superior Offer or taking any action pursuant to Section 7.1(h) with respect to a Superior Offer, the Company Change of Recommendation and, if requested by Parent, negotiated shall negotiate in good faith with Parent during such five business day ninety-six (96) hour period regarding (to the extent that Parent desires to negotiate) to make such revisions to the terms of this Agreement which as would avoid such Company Change of Recommendation; and (E) the Company Board of Directors has provided to Parent advance written notice of such Company Change of Recommendation at least two hours prior thereto. The Board of Directors of the Company may not, in respect of a Company Acquisition Proposal, make a Company Change of Recommendation in a manner adverse to Parent except in compliance in all respects with this Section 5.4(d). For the avoidance of doubt, a change of the Company Recommendation to “neutral” is a Company Change of Recommendation.
(e) Nothing in this Agreement shall prohibit or restrict the Board of Directors of the Company, at any time prior to receipt of the Company Stockholder Approval, in circumstances not involving or relating to a Company Acquisition Proposal, from effecting a Company Change of Recommendation if permit the Board of Directors of the Company determines not to effect a Change of Recommendation in good faith (after consultation connection with outside legal counsel) that failure an Intervening Event or a Superior Offer or to take such action would be reasonably likely pursuant to be inconsistent with the exercise by Section 7.1(h) in response to a Superior Offer, and (z) the Board of Directors of its duties under applicable Laws if (and only if): (A) the Company Board shall have considered in good faith any changes to this Agreement offered in writing by Parent and shall have determined in good faith, after consultation with its outside legal counsel and financial advisors, that the event continues to constitute an Intervening Event or that the Superior Offer would continue to constitute a Superior Proposal, in each case if such changes offered in writing by Parent were to be given effect; provided that, for the avoidance of Directors has provided to Parent five business days prior written notice of its intent to doubt, the Company shall not effect a Company Change of Recommendation in connection with an Intervening Event or a Superior Offer or take any action pursuant to Section 7.1(h) with respect to a Superior Offer prior to the time that is ninety-six (which 96) hours after it has provided the written notice shall include required by clause (x) above; provided further, that in the reasonable details regarding event that the cause for, and nature ofAcquisition Proposal is thereafter modified by the party making such Acquisition Proposal, the Company Change of Recommendation) and, if requested by Parent, negotiated in good faith with Parent during such five business day period regarding revisions to this Agreement that would avoid such Company Change of Recommendation and (B) the Company Board of Directors has provided to Parent advance shall provide written notice of such modified Acquisition Proposal and shall again comply with this Section 5.4(e), except that the Company’s advance written notice obligation shall be reduced to seventy-two (72) hours (rather than the ninety-six (96) hours otherwise contemplated by this Section 5.4(e)) and the time the Company shall be permitted to effect a Change of Recommendation at least in connection with a Superior Offer or to take action pursuant to Section 7.1(h) with respect to a Superior Offer shall be reduced to the time that is seventy-two (72) hours after it has provided such written notice (rather than the time that is the ninety-six (96) hours otherwise contemplated by this Section 5.4(e)) (but in no event prior theretoto the original ninety-six (96) hour advance notice period).
(f) As used in this Agreement:
Appears in 2 contracts
Samples: Merger Agreement (Energy Transfer Equity, L.P.), Merger Agreement (Southern Union Co)
Non-Solicitation by the Company. (a) The Company agrees that neither it nor any Subsidiary of the Company, 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 permit give permission to 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 proposal that constitutes, or would reasonably be expected to lead to, a Company Acquisition Proposal, (ii) furnish any nonpublic non-public information regarding the Company or any of its Subsidiaries to, or afford access to the properties, books and records of the Company to, any person (other than Parent or Merger Sub) ), in connection with or in response to a Company Acquisition Proposal, (iii) engage or participate in any discussions or negotiations with any person (other than Parent or Merger Sub) with respect to any Company Acquisition Proposal, (iv) approve, endorse or recommend any Company Acquisition Proposal or (v) enter into any letter of intent, memorandum of understanding, merger agreement, acquisition agreement in principle or any other agreement providing for any Company Acquisition Transaction (except as contemplated by Section 7.1(j)); provided, however, that this Section 5.4 shall not prohibit (A) the Company, or the Board of Directors of the Company, directly or indirectly through any officer, employee or Representative, prior to the receipt of obtaining the Company Stockholder Approval, from furnishing nonpublic information regarding the Company 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 Company Acquisition Proposal that the Board of Directors of the Company concludes in good faith, after consultation with its financial advisors, constitutes or is reasonably likely expected to lead to result in a Company Superior Offer if (1) the Board of Directors of the Company concludes in good faith, after consultation with its outside legal counsel, that the failure to take such action with respect to such Company Acquisition Proposal would be reasonably likely to be inconsistent with the exercise by the Board of Directors of their its fiduciary duties under applicable Laws, (2) such Company Acquisition Proposal did not result from a breach of this Section 5.4(a) (other than any such breach that is unintentional and immaterial in effect), (3) the Company gives to Parent the notice required by Section 5.4(b), and (4) the Company furnishes any nonpublic information provided to the maker of the Company Acquisition Proposal only pursuant to a confidentiality agreement between the Company and such person on substantially the same terms no less favorable to the Company than the Confidentiality Agreement (provided that such confidentiality agreement shall not in any way restrict the Company from complying with its disclosure obligations under this Agreement, including with respect to such proposal), and such furnished information is delivered to Parent at substantially confidentiality as the same time (to the extent such information has not been previously furnished or made available by the Company to Parent)Confidentiality Agreement; or (B) the Company from taking and disclosing to its stockholders a position contemplated by Rule complying with Rules 14d-9 and Rule 14e-2(a) 14e-2 promulgated under the Exchange Act with regard to any Company Acquisition 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 rules has under any other provision of this Agreement and in no event shall the Company or the Company Board of Directors or a committee thereof take any action that would constitute a Company Change in Recommendation in respect of a Company Acquisition Proposal other than in compliance with Section 5.4(d)Agreement.
(b) The Company shall promptly, and in no event later than 24 twenty-four (24) hours after its receipt of any Company Acquisition Proposal, or any request for nonpublic information relating to the Company or any of its Subsidiaries in connection with a Company Acquisition Proposal, advise Parent orally and in writing of such Company Acquisition Proposal or request, request (including providing the identity of the person making or submitting such Company Acquisition Proposal or request, and, (x) if it is in writing, a copy of such Company Acquisition Proposal and any related draft agreements and (y) if oral, a reasonably detailed summary of any such Company Acquisition Proposal or request thereof that is made or submitted by any person during the period between the date hereof and the Closing). The Company shall (i) keep Parent informed in all material respects on a prompt basis with respect to any change to the status or material terms of any such Company Acquisition Proposal (and in no event later than 24 twenty-four (24) hours following any such change), (ii) . The Company agrees that it shall promptly provide to Parent as soon as practicable after receipt any non-public information concerning itself or delivery thereof with copies of all correspondence and other written material sent or its Subsidiaries provided to the Company from any third party other person in connection with any Company Acquisition Proposal or sent or which was not previously provided by the Company to any third party in connection with any Company Acquisition Proposal and (iii) provide Parent with advance written notice of any scheduled meeting of the Company Board of Directors to discuss a Company Acquisition ProposalParent.
(c) Upon Immediately following the execution of this Agreement, the Company 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 as of the date of this Agreement between the Company or any of its Subsidiaries or any of their respective officers, directors, employees or Representatives and any person (other than Parent) that relate to any Company 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 the Company or to destroy all confidential information of the Company and its Subsidiaries. The Company 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 the Company or any of its Subsidiaries is or may become a party and agrees to use commercially reasonable efforts to enforce the provisions of such agreementsProposal.
(d) Except as contemplated by this otherwise provided in Section 5.4(d5.4(e) or Section 5.4(f), neither the Board of Directors of the Company nor any committee thereof shall may (i) (A) withhold, withdraw, qualify withdraw or modify, or resolve to or publicly propose to withhold, withdrawwithdraw or modify, qualify or modify the Company Recommendation in a manner adverse to Parent, Parent or (Bii) make any other public statement in connection with the Company Stockholders’ Meeting or this Agreement or the Transactions inconsistent with the Company Recommendation, (C) approverecommend, adopt or recommend approve, or propose publicly to recommend, adopt or approve, any Company Acquisition Proposal or (D) fail to reaffirm or re-publish the Company Recommendation within five days of being requested by Parent to do so (each such any action set forth described in clauses (A) through (D) above being this Section 5.4(d), a “Company Change of Recommendation”).
(e) or (ii) approve, adopt or recommend, or publicly propose Notwithstanding anything in this Agreement to approve, adopt or recommend, a 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 5.4(a)) or any tender offer providing forcontrary, with respect to, or in connection with any to a Company Acquisition Proposal. Notwithstanding the foregoing, the Board of Directors of the Company may at any time prior to receipt of the Company Stockholder Approval, in respect of a Company Acquisition Proposal, (i) make a Company Change of Recommendation and (ii) terminate this Agreement pursuant to Section 7.1(j) of this Agreement), if (and only if): (Ai) a written Company Acquisition Proposal (that did not result from a breach of Section 5.4(a)) is made to the Company by a third party, and such offer Company Acquisition Proposal is not withdrawn; (Bii) the Company’s Board of Directors determines in good faith after consultation with its financial advisors that such offer Company Acquisition Proposal constitutes a Company Superior Offer; (Ciii) following consultation with outside legal counsel, the Company’s Board of Directors determines that the failure to make a Company Change of Recommendation, Recommendation or to terminate this Agreement pursuant to Section 7.1(j) of this Agreement), would be reasonably likely to be inconsistent with the exercise of its fiduciary duties under applicable Laws, ; (Div) the Company Board of Directors has provided to provides Parent five (5) business days days’ prior written notice of its intent intention to effect a Company Change of Recommendation (take such action, which notice shall include the reasonable details regarding information with respect to such Company Superior Offer that is specified in Section 5.4(b); and (v) at the cause for, and nature of, end of the Company Change of Recommendation and, if requested by Parent, negotiated in good faith with Parent during such five (5) business day period regarding revisions to this Agreement which would avoid such Company Change of Recommendation; and described in clause (E) iv), the Company Board of Directors has provided to Parent advance written notice of such Company Change of Recommendation at least two hours prior thereto. The Board of Directors of the Company may not, again makes the determination in respect good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed by Parent) that the Company Acquisition Proposal continues to be a Company Acquisition Proposal, make a Superior Offer and that the Company Change of Recommendation in a manner adverse is required to Parent except in compliance in all respects comply with this Section 5.4(d). For the avoidance fiduciary duties of doubt, a change the Board of Directors of the Company Recommendation to “neutral” is a the stockholders of the Company Change of Recommendationunder applicable Laws.
(ef) Nothing in this Agreement shall prohibit or restrict the Board of Directors of the Company, at any time prior to receipt of the Company Stockholder Approval, in circumstances not involving or relating to a Company Acquisition Proposal, from effecting a Company Change of Recommendation if (i) in response to a material development or change in circumstances occurring or arising after the date hereof that was neither known to the Board of Directors of the Company nor reasonably foreseeable at the date of this Agreement (and which change or development does not relate to a Company Acquisition Proposal), the Board of Directors of the Company determines in good faith (after consultation with outside legal counsel) that failure to take such action would be reasonably likely to be inconsistent with the exercise by the Board of Directors of its fiduciary duties under applicable Laws if Laws, (and only if): (Aii) the Company Board of Directors has provided to notified Parent in writing, at least five (5) business days prior written notice of its intent to effect a Company Change of Recommendation (which notice shall include the reasonable details regarding the cause for, and nature of, the Company Change of Recommendation) and, if requested by Parent, negotiated in good faith with Parent during such five business day period regarding revisions to this Agreement that would avoid such Company Change of Recommendation and (B) the Company Board of Directors has provided to Parent advance written notice of such Company Change of Recommendation Recommendation, that it is considering taking such action and specifying in reasonable detail the reasons therefor and (iii) during such five (5) business day period, the Company has considered and, at least two hours prior theretothe reasonable request of Parent, engaged in discussions with Parent regarding, any adjustments proposed in writing by Parent in the terms and conditions of this Agreement, should Parent propose any such adjustments.
(fg) As used in this Agreement:
Appears in 2 contracts
Samples: Merger Agreement (Mirant Corp), Merger Agreement (Rri Energy Inc)
Non-Solicitation by the Company. (a) The Company agrees that neither it nor any Subsidiary Until the earlier of the CompanyEffective Time and the termination of this Agreement in accordance with Article VIII, nor any of the Company and its Subsidiaries shall not, and the Company shall cause its and their respective officers, directors or employees, shalland employees not to, and that it the Company shall use its reasonable best efforts to cause its and their respective Representatives not to (and shall not authorize or permit give permission to 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 inquiry, discussion, request, offer or proposal that constitutes, or would reasonably be expected to lead to, a Company Acquisition Proposal, (ii) furnish any nonpublic non-public information regarding the Company or any of its Subsidiaries to, or afford access to the properties, books and records of the Company or any person (other than Parent or Merger Sub) of its Subsidiaries to, any Third Party, in connection with or in response to, or that would be reasonably likely to lead to, a Company Acquisition Proposal, (iii) engage or participate in any discussions or negotiations with any person (other than Parent or Merger Sub) Third Party with respect to, or that would be reasonably likely to lead to, any Company Acquisition Proposal, or (iv) adopt or approve, endorse or recommend any Company Acquisition Proposal or (v) enter into any letter of intent, agreement in principle principle, memorandum of understanding, term sheet, merger agreement, acquisition agreement, option agreement or any other agreement (other than an Acceptable Confidentiality Agreement) or instrument providing for or relating to, any Company Acquisition Transaction (except as contemplated by Section 7.1(j))Proposal; provided, however, that this Section 5.4 6.4(a) shall not prohibit (A) the Company, or the Board of Directors of the Company, directly or indirectly through any officer, employee or Representative, prior to the receipt of obtaining the Company Stockholder Approval, from furnishing nonpublic information regarding the Company 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 Company Acquisition Proposal that the Board of Directors of received by the Company concludes 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 good faith, after consultation connection with its financial advisors, constitutes or a breach of this Section 6.4 that is reasonably likely to lead to a Company Superior Offer not withdrawn if (but only if): (1) the Board of Directors of the Company concludes determines in good faith, after consultation with its a financial advisor of nationally recognized reputation and outside legal counsel, that such Company Acquisition Proposal constitutes or is reasonably expected to result in a Company Superior Offer, (2) the Board of Directors of the Company determines in good faith, after consultation with outside legal counsel, that the failure to take such action with respect to such Company Acquisition Proposal would be reasonably likely to be inconsistent with the exercise by the Board of Directors of their its fiduciary duties under applicable Laws, (2) such Company Acquisition Proposal did not result from a breach of this Section 5.4(a) (other than any such breach that is unintentional and immaterial in effect)Law, (3) the Company gives to Parent the notice (which notice must state that the Company’s Board of Directors’ has made the determinations contemplated by the foregoing clauses (1) and (2)), required by Section 5.4(b6.4(b), and (4) the Company furnishes any nonpublic non-public information provided and/or provides access to the maker of the Company Acquisition Proposal such Third Party (or its directors, officers, employees or Representatives) only pursuant to a confidentiality agreement between after such Third Party enters into an Acceptable Confidentiality Agreement with the Company and such person on terms no less favorable to the Company than the Confidentiality Agreement (provided that such confidentiality agreement shall not in any way restrict the Company from complying with its disclosure obligations under this Agreement, including with respect to such proposal), and such furnished information is delivered to Parent at substantially the same time (to the extent such information has not been previously furnished or made available by the Company to Parent)only pursuant thereto; or (B) the Company from taking and disclosing waiving any standstill or similar provisions in any Acceptable Confidentiality Agreement entered into after the date of this Agreement in order to its stockholders permit the counterparty thereto to make a position contemplated by Rule Company Acquisition Proposal; or (C) the Company from complying with Rules 14d-9 and Rule 14e-2(a) 14e-2 promulgated under the Exchange Act with regard to any Company Acquisition 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 rules has may have under any other provision of this Agreement and in no event shall the Company or the Company Board of Directors or a committee thereof take any action that would constitute a Company Change in Recommendation in respect of a Company Acquisition Proposal other than in compliance with Section 5.4(d)Agreement.
(b) The From and after the date hereof until the earlier of the Effective Time and the termination of this Agreement in accordance with Article VIII, the Company shall promptly, promptly (and in no any event later than 24 hours after within twenty-four (24) hours) notify Parent orally and in writing of its receipt of (i) any Company Acquisition ProposalProposal (whether written, oral or otherwise), (ii) any inquiry or request for nonpublic information relating to regarding the Company or any of its Subsidiaries or for access to the properties, books and records of the Company or any of its Subsidiaries, in each case, in connection with or in response to a Company Acquisition Proposal, advise Parent orally and or (iii) any discussions or negotiations sought to be entered into or continued with the Company, 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 writing of such connection with or in response to a Company Acquisition Proposal or request, including providing Proposal. Any such notice pursuant to the foregoing sentence shall include (A) the identity of the person Third Party making or submitting such Company Acquisition Proposal or request, and, (xB) if it is in writing, a copy of such Company Acquisition Proposal and any related draft agreements agreements, and (yC) if oral, a reasonably detailed summary of any material communications relating to, and the material terms and conditions of, such Company Acquisition Proposal or request that is made or submitted by any person during the period between the date hereof and the Closingrequest. The Company shall (i) keep Parent reasonably informed in all material respects on a prompt basis with respect to any change to the status or material terms of any such Company Acquisition Proposal (and in no event later than 24 twenty-four (24) hours following any such change)) to any of the financial terms or any other material term or condition of any such Company Acquisition Proposal, including providing the information and documents set forth in clauses (iiA) through (C) of the foregoing sentence with respect to any material change thereto. The Company shall promptly provide to Parent as soon as practicable after receipt or delivery thereof with copies of all correspondence any non-public information regarding the Company and other written material sent or provided its Subsidiaries and promptly provide access to the Company from any third party in connection with any Company Acquisition Proposal or sent or provided by the Company to any third party in connection with any Company Acquisition Proposal properties, books and (iii) provide Parent with advance written notice of any scheduled meeting records of the Company Board and its Subsidiaries provided to any such Third Party which was not previously provided to Parent. The Company shall not enter into any agreement (or amend or modify any existing agreement) with any Third Party which would prevent the Company or any of Directors to discuss a Company Acquisition Proposalits Subsidiaries or their respective Representatives from complying with this Section 6.4.
(c) Upon Immediately following the execution of this Agreement, the Company 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 and all solicitations, discussions or negotiations existing as of the date of this Agreement between the Company or any of its Subsidiaries or any of their respective officers, directors, employees or Representatives and any person Third Party (other than Parentor its Representatives) in connection with or in response to, or that relate would be reasonably likely to any lead to, a Company Acquisition Proposal andProposal, to the extent provided by the applicable confidentiality agreement and (ii) request that each such Third Party and its Representatives promptly return or similar agreement governing such discussions, require any third party to such discussions to return to the Company or to destroy all confidential information theretofore furnished thereto by or on behalf of the Company and its Subsidiaries. The Company 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 the Company or any of its Subsidiaries (and destroy all analyses and other materials prepared by or on behalf of such Third Party that contain, reflect or analyze such information). If the Company becomes aware of any material breach by a Third Party (or its Representatives) of any standstill provision to which such Third Party is subject pursuant to any agreement with the Company or may become a party and agrees to use commercially reasonable efforts any of its Subsidiaries, the Company shall take all necessary actions to enforce the provisions of such agreementsstandstill provision.
(d) Except as contemplated by this otherwise provided in Section 5.4(d6.4(e), neither the Company nor the Board of Directors of the Company nor or any committee thereof shall (i) (A) withhold, withdraw, qualify withdraw or modify, or resolve to or publicly propose to withhold, withdrawwithdraw or modify, qualify or modify the Company Recommendation in a manner adverse to ParentParent and/or Merger Sub, (B) make any other public statement in connection with including by failing to include the Company Stockholders’ Meeting Recommendation in the Proxy Statement, or this Agreement or the Transactions inconsistent with the Company Recommendation, (Cii) approverecommend, adopt or recommend approve, or propose publicly to recommend, adopt or approve, any Company Acquisition Proposal or (D) fail to reaffirm or re-publish the Company Recommendation within five days of being requested by Parent to do so (each such any action set forth described in clauses (A) through (D) above being this Section 6.4(d), a “Company Change of Recommendation”).
(e) or (ii) approve, adopt or recommend, or publicly propose Notwithstanding anything in this Agreement to approve, adopt or recommend, a 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 5.4(a)) or any tender offer providing for, with respect to, or in connection with any Company Acquisition Proposal. Notwithstanding the foregoingcontrary, the Board of Directors of the Company may at any time prior to receipt of the Company Stockholder Approval, in respect of a Company Acquisition Proposal, (i) make a Company Change of Recommendation and (ii) terminate this Agreement pursuant to Section 7.1(j) of this Agreement, if (and only if): (A) a Company Acquisition Proposal is made to the Company by a third party, and such offer is not withdrawn; (B) the Company’s Board of Directors determines in good faith after consultation with its financial advisors that such offer constitutes a Company Superior Offer; (C) following consultation with outside legal counsel, the Company’s Board of Directors determines that the failure to make a Company Change of Recommendation, or to terminate this Agreement pursuant to Section 7.1(j) of this Agreement, would be reasonably likely to be inconsistent with the exercise of its duties under applicable Laws, (D) the Company Board of Directors has provided to Parent five business days prior written notice of its intent to effect a Company Change of Recommendation (which notice shall include the reasonable details regarding the cause for, and nature of, the Company Change of Recommendation and, if requested by Parent, negotiated in good faith with Parent during such five business day period regarding revisions to this Agreement which would avoid such Company Change of Recommendation; and (E) the Company Board of Directors has provided to Parent advance written notice of such Company Change of Recommendation at least two hours prior thereto. The Board of Directors of the Company may not, in respect of a Company Acquisition Proposal, make a Company Change of Recommendation in a manner adverse to Parent except in compliance in all respects with this Section 5.4(d). For the avoidance of doubt, a change of the Company Recommendation to “neutral” is a Company Change of Recommendation.
(e) Nothing in this Agreement shall prohibit or restrict the Board of Directors of the Companymay, at any time prior to receipt of the Company Stockholder Approval, effect a Company Change of Recommendation in circumstances not involving connection with or relating to a Company Acquisition ProposalProposal (provided that, from effecting for the avoidance of doubt, such actions will nonetheless constitute a Company Change of Recommendation Recommendation) or terminate this Agreement pursuant to Section 8.1(i), if (but only if):
(i) a bona fide written Company Acquisition Proposal is received by the Company 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 a breach of this Section 6.4 and such Company Acquisition Proposal is not withdrawn;
(ii) the Board of Directors of the Company determines in good faith after consultation with a financial advisor of nationally recognized reputation and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Offer;
(iii) the Board of Directors of the Company determines in good faith, after consultation with outside legal counsel) , that the failure to take effect a Company Change of Recommendation or terminate this Agreement pursuant to Section 8.1(i) with respect to such action Company Superior Offer would be reasonably likely to be inconsistent with the exercise of the Board of Directors’ fiduciary duties under applicable Law;
(iv) the Company provides Parent at least four Business Days’ prior written notice stating that the Company will effect a Company Change of Recommendation pursuant to this Section 6.4(e) or terminate this Agreement pursuant to Section 8.1(i); provided, however, that any change to the financial terms or any other material change to the terms and conditions of any such Company Superior Offer shall require a new written notice to be delivered by the Company to Parent and the Company shall be required to comply again with the requirements of this Section 6.4(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 its duties under applicable Laws if (and only if): (A) the Company Board again determines in good faith, after consultation with a financial advisor of Directors has provided nationally recognized reputation and outside legal counsel, and taking into account any adjustment or modification to Parent five business days prior written notice the terms and conditions of its intent this Agreement proposed by Parent, that the Company Acquisition Proposal continues to constitute a Company Superior Offer and that the failure to effect a Company Change of Recommendation (which notice shall include the reasonable details regarding the cause forRecommendation, and nature of, the Company Change of Recommendation) and, if requested by Parent, negotiated in good faith with Parent during such five business day period regarding revisions to or terminate this Agreement that would avoid pursuant to Section 8.1(i), with respect to such Company Change Superior Offer would be reasonably likely to be inconsistent with the exercise of Recommendation and (B) the Company Board of Directors has provided to Parent advance written notice of such Company Change of Recommendation at least two hours prior theretoDirectors’ fiduciary duties under applicable Law.
(f) As used The approval of the Company’s Board of Directors or any committee thereof for purposes of causing the Charter Restrictions, the DGCL 203 Restrictions and any other Takeover Law to be inapplicable to the Merger and the other transactions contemplated by this Agreement shall be irrevocable and unconditional and no Company Change of Recommendation or other action shall change such approval or action.
(g) The Company agrees that any breach of this Section 6.4 by any Representative of the Company or any Subsidiary of the Company who is a director, officer or employee of the Company or any Subsidiary of the Company 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 the Company or any Subsidiary of the Company, shall be deemed to be a breach of this Section 6.4 by the Company for all purposes of this Agreement:.
Appears in 2 contracts
Samples: Merger Agreement (Fitlife Brands, Inc.), Merger Agreement (iSatori, Inc.)
Non-Solicitation by the Company. (a) The Company agrees that neither it nor any Subsidiary of the Company, 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 permit give permission to 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 of, any Company proposal that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (ii) furnish any nonpublic non-public information regarding the Company or any of its Subsidiaries to, or afford access to the business, properties, books or records of the Company or any of its Subsidiaries to, any person (other than Parent or Merger Sub) ), in connection with or in response to a Company an Acquisition Proposal, (iii) engage or participate in any discussions or negotiations with any person (other than Parent or Merger Sub) with respect to any Company Acquisition Proposal, (iv) approve, endorse or recommend (or publicly propose to approve, endorse or recommend) any Company Acquisition Proposal or Proposal, (v) enter into any letter of intent, term sheet, memorandum of understanding, merger agreement, acquisition agreement, exchange agreement in principle or any other agreement providing for any Company Acquisition Transaction or requiring the Company to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement (except as contemplated by Section 7.1(j7.1(h))) or (vi) resolve, propose or agree to do any of the foregoing; provided, however, that this Section 5.4 shall not prohibit (A) the Company, or the Board of Directors of the Company, directly or indirectly through any officer, employee or Representative, prior to the receipt of obtaining the Company Stockholder Approval, from furnishing nonpublic information regarding the Company 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 Company unsolicited Acquisition Proposal that the Board of Directors of the Company Company, prior to taking any such particular action, concludes in good faith, after consultation with its financial advisorsadvisors and outside legal counsel (it being understood that, for purposes of this Section 5.4, such a financial advisor or outside legal counsel shall include a financial advisor or outside legal counsel to a duly constituted and acting committee of the Board of Directors of the Company), constitutes or is reasonably likely to lead to result in a Company Superior Offer if (1) the Board of Directors of the Company concludes in good faith, after consultation with its outside legal counsel, that the failure to take such action with respect to such Company Acquisition Proposal would be reasonably likely to be inconsistent with the exercise constitute a breach by the Board of Directors of their its fiduciary duties under applicable Laws, (2) such Company Acquisition Proposal did not result from a breach of this Section 5.4(a) (other than any such breach that is unintentional and immaterial in effect)5.4, (3) the Company gives to Parent the notice required by Section 5.4(b)5.4, and (4) the Company furnishes any nonpublic non-public information provided to the maker of the Company Acquisition Proposal only pursuant to a confidentiality agreement between the Company and such person on substantially the same terms no less favorable to the Company than as the Confidentiality Agreement (provided it being acknowledged and agreed that such confidentiality agreement shall need not in contain a “standstill” or similar provision that prohibits the third party recipient of such information from making any way restrict the Company from complying with its disclosure obligations under this Agreement, including with respect to such proposal), Acquisition Proposal) and such furnished information is delivered to Parent at substantially the same time (to the extent such non-public information that has not been previously furnished or made available by to Parent is made available to the Company maker of the Acquisition Proposal, provide such non-public information to Parent)Parent substantially concurrent with the time that it is provided to such other person; or (B) the Company from taking and disclosing to its stockholders a position contemplated by Rule complying with Rules 14d-9 and Rule 14e-2(a) 14e-2 promulgated under the Exchange Act with regard to any Company Acquisition Proposal, provided, however, that compliance Proposal (or making any similar communication to stockholders in connection with such rules shall not in any way limit amendment to the terms of a tender offer or modify the effect that exchange offer) so long as any action taken pursuant or statement made to such rules has under so comply is consistent with this Section 5.4; (C) the Company, or the Board of Directors, directly or indirectly through any other provision officer, employee or Representative disclosing factual information regarding the business, financial condition or results of this Agreement and in no event shall operations of the Company or the fact that an Acquisition Proposal has been made, the identity of the party making such proposal or the material terms of such proposal in the Proxy Statement or otherwise, to the extent the Company in good faith determines that such information, facts, identity or terms is required to be disclosed under applicable Law or that failure to make such disclosure is reasonably likely to be inconsistent with its fiduciary duties under applicable Law; or (D) the Company, or the Board of Directors, directly or indirectly through any officer, employee or Representative making any statement or disclosure to the Company’s stockholders required by applicable Law; provided that any such action taken or statement or disclosure made that relates to an Acquisition Proposal shall be deemed to be a Change of Recommendation unless the Board of Directors reaffirms its recommendation in favor of the proposed transaction in such statement or disclosure or in connection with such action (except that a committee thereof take any action that would constitute a Company Change in Recommendation in respect of a Company Acquisition Proposal other than mere “stop, look and listen” disclosure in compliance with Rule 14d-9(f) of the 1934 Act shall not constitute a Change of Recommendation). So long as the Company and its Representatives have otherwise complied with this Section 5.4(d)5.4, none of the foregoing shall prohibit the Company and its Representatives from contacting in writing any persons or group of persons who has made an Acquisition Proposal after the date of this Agreement solely to request the clarification of the terms and conditions thereof so as to determine whether the Acquisition Proposal is, or could reasonably be expected to lead to, a Superior Offer, and any such actions shall not be a breach of this Section 5.4.
(b) The Company shall promptly, and in no event later than 24 twenty-four (24) hours after its or any of its Representatives’ receipt of any Company Acquisition Proposal, Proposal or any request for nonpublic non- public information relating to the Company or any of its Subsidiaries in connection with a Company an Acquisition Proposal, advise Parent orally and in writing of such Company Acquisition Proposal or request, request (including providing the identity of the person making or submitting such Company Acquisition Proposal or request, and, (x) if it is in writing, a copy of such Company Acquisition Proposal and any related draft agreements and (y) if oral, a reasonably detailed summary of any such Company Acquisition Proposal or request thereof that is made or submitted by any person during the period between the date hereof and the Closing). The Company shall (i) keep Parent informed in all material respects on a prompt basis with respect to any change to the status or material terms of any such Company Acquisition Proposal (and in no event later than 24 twenty-four (24) hours following any such change), (ii) . The Company agrees that it shall promptly provide to Parent as soon as practicable after receipt any non-public information concerning itself or delivery thereof with copies of all correspondence and other written material sent or its Subsidiaries provided to the Company from any third party other person in connection with any Company Acquisition Proposal or sent or which was not previously provided by the Company to any third party in connection with any Company Acquisition Proposal and (iii) provide Parent with advance written notice of any scheduled meeting of the Company Board of Directors to discuss a Company Acquisition ProposalParent.
(c) Upon Immediately following the execution of this Agreement, (i) the Company 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 as of the date of this Agreement between the Company or any of its Subsidiaries or any of their respective officers, directors, employees or Representatives and any person (other than Parent) that relate to any Company Acquisition Proposal andProposal, 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 and (ii) the Company shall, and shall use its reasonable best efforts to cause its Representatives to, cause to be returned or to destroy destroyed all confidential information provided by or on behalf of the Company and its Subsidiaries. The Company 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 the Company or any of its Subsidiaries is or may become a party and agrees Subsidiary to use commercially reasonable efforts to enforce the provisions of such agreementsperson.
(d) Except as contemplated by this otherwise provided in Section 5.4(d5.4(e), neither the Board of Directors of the Company nor any committee thereof shall may (i) (A) withhold, withdraw, qualify withdraw or modify, or resolve to or publicly propose to withhold, withdrawwithdraw or modify, qualify or modify the Company Recommendation in a manner adverse to Parent, or (Bii) make any other public statement in connection with the Company Stockholders’ Meeting or this Agreement or the Transactions inconsistent with the Company Recommendation, (C) approverecommend, adopt or recommend approve, or propose publicly to recommend, adopt or approve, any Company Acquisition Proposal or (D) fail to reaffirm or re-publish the Company Recommendation within five days of being requested by Parent to do so (each such any action set forth described in clauses (A) through (D) above being this Section 5.4(d), a “Company Change of Recommendation”).
(e) Notwithstanding anything in this Agreement to the contrary, with respect to (i) an Intervening Event or (ii) approve, adopt or recommend, or publicly propose to approve, adopt or recommend, a 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 5.4(a)) or any tender offer providing for, with respect to, or in connection with any Company an Acquisition Proposal. Notwithstanding the foregoing, the Board of Directors of the Company may at any time prior to receipt of the Company Stockholder Approval, in respect of a Company Acquisition Proposal, (i) make a Company Change of Recommendation and (ii) and/or terminate this Agreement pursuant to Section 7.1(j) of this Agreement7.1(h), if (and only if): (A) a Company in the case of (ii) above, (x) an Acquisition Proposal (that did not result from a breach of Section 5.4(a)) is made to the Company by a third party, and such offer Acquisition Proposal is not withdrawn; (By) the Company’s Board of Directors determines in good faith after consultation with its financial advisors and outside legal counsel that such offer Acquisition Proposal constitutes a Company Superior Offer; and (Cz) the Company’s Board of Directors determines to terminate this Agreement pursuant to Section 7.1(h), (B) in the case of (i) above, following consultation with outside legal counsel, the Company’s Board of Directors determines that the failure to make a Company Change of Recommendation, or to terminate this Agreement pursuant to Section 7.1(j) of this Agreement, Recommendation would be reasonably likely to be inconsistent with constitute a breach by the exercise Board of Directors of its fiduciary duties under applicable Laws; (C) in the case of (i) and (ii) above, (Dx) the Company Board of Directors has provided to provides Parent five business days ninety-six (96) hour’s prior written notice of its intent intention to effect a Company Change of Recommendation (take such action, which notice shall include the reasonable details regarding information with respect to such Intervening Event or Superior Offer, as the cause forcase may be, that is specified in Section 5.4(b), (y) after providing such notice and nature ofprior to making such Change of Recommendation in connection with an Intervening Event or a Superior Offer or taking any action pursuant to Section 7.1(h) with respect to a Superior Offer, the Company Change of Recommendation and, if requested by Parent, negotiated shall negotiate in good faith with Parent during such five business day ninety-six (96) hour period regarding (to the extent that Parent desires to negotiate) to make such revisions to the terms of this Agreement which as would avoid such Company Change of Recommendation; and (E) the Company Board of Directors has provided to Parent advance written notice of such Company Change of Recommendation at least two hours prior thereto. The Board of Directors of the Company may not, in respect of a Company Acquisition Proposal, make a Company Change of Recommendation in a manner adverse to Parent except in compliance in all respects with this Section 5.4(d). For the avoidance of doubt, a change of the Company Recommendation to “neutral” is a Company Change of Recommendation.
(e) Nothing in this Agreement shall prohibit or restrict the Board of Directors of the Company, at any time prior to receipt of the Company Stockholder Approval, in circumstances not involving or relating to a Company Acquisition Proposal, from effecting a Company Change of Recommendation if permit the Board of Directors of the Company determines not to effect a Change of Recommendation in good faith (after consultation connection with outside legal counsel) that failure an Intervening Event or a Superior Offer or to take such action would be reasonably likely pursuant to be inconsistent with the exercise by Section 7.1(h) in response to a Superior Offer, and (z) the Board of Directors of its duties under applicable Laws if (and only if): (A) the Company Board shall have considered in good faith any changes to this Agreement offered in writing by Parent and shall have determined in good faith, after consultation with its outside legal counsel and financial advisors, that the event continues to constitute an Intervening Event or that the Superior Offer would continue to constitute a Superior Proposal, in each case if such changes offered in writing by Parent were to be given effect; provided that, for the avoidance of Directors has provided to Parent five business days prior written notice of its intent to doubt, the Company shall not effect a Company Change of Recommendation in connection with an Intervening Event or a Superior Offer or take any action pursuant to Section 7.1(h) with respect to a Superior Offer prior to the time that is ninety-six (which 96) hours after it has provided the written notice shall include required by clause (x) above; provided further, that in the reasonable details regarding event that the cause for, and nature ofAcquisition Proposal is thereafter modified by the party making such Acquisition Proposal, the Company Change of Recommendation) and, if requested by Parent, negotiated in good faith with Parent during such five business day period regarding revisions to this Agreement that would avoid such Company Change of Recommendation and (B) the Company Board of Directors has provided to Parent advance shall provide written notice of such modified Acquisition Proposal and shall again comply with this Section 5.4(e), except that the Company’s advance written notice obligation shall be reduced to seventy-two (72) hours (rather than the ninety-six (96) hours otherwise contemplated by this Section 5.4(e)) and the time the Company shall be permitted to effect a Change of Recommendation at least in connection with a Superior Offer or to take action pursuant to Section 7.1(h) with respect to a Superior Offer shall be reduced to the time that is seventy-two (72) hours after it has provided such written notice (rather than the time that is the ninety-six (96) hours otherwise contemplated by this Section 5.4(e)) (but in no event prior theretoto the original ninety-six (96) hour advance notice period).
(f) As used in this Agreement:
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Southern Union Co), Agreement and Plan of Merger (Energy Transfer Equity, L.P.)
Non-Solicitation by the Company. (a) The Company agrees that neither it nor any Subsidiary Until the earlier of the CompanyEffective Time and the termination of this Agreement in accordance with Article VIII, nor any of the Company and its Subsidiaries shall not, and the Company shall cause its and their respective officers, directors or employees, shalland employees not to, and that it the Company shall use its reasonable best efforts to cause its and their respective Representatives not to (and shall not authorize or permit give permission to 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 inquiry, discussion, request, offer or proposal that constitutes, or would reasonably be expected to lead to, a Company Acquisition Proposal, (ii) furnish any nonpublic non-public information regarding the Company or any of its Subsidiaries to, or afford access to the properties, books and records of the Company or any person (other than Parent or Merger Sub) of its Subsidiaries to, any Third Party, in connection with or in response to, or that would be reasonably likely to lead to, a Company Acquisition Proposal, (iii) engage or participate in any discussions or negotiations with any person (other than Parent or Merger Sub) Third Party with respect to, or that would be reasonably likely to lead to, any Company Acquisition Proposal, or (iv) adopt or approve, endorse or recommend any Company Acquisition Proposal or (v) enter into any letter of intent, agreement in principle principle, memorandum of understanding, term sheet, merger agreement, acquisition agreement, option agreement or any other agreement (other than an Acceptable Confidentiality Agreement) or instrument providing for or relating to, any Company Acquisition Transaction (except as contemplated by Section 7.1(j))Proposal; provided, however, that this Section 5.4 6.4(a) shall not prohibit (A) the Company, or the Board of Directors of the Company, directly or indirectly through any officer, employee or Representative, prior to the receipt of obtaining the Company Stockholder Approval, from furnishing nonpublic information regarding the Company 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 Company Acquisition Proposal that the Board of Directors of received by the Company concludes 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 good faith, after consultation connection with its financial advisors, constitutes or a breach of this Section 6.4 that is reasonably likely to lead to a Company Superior Offer not withdrawn if (but only if): (1) the Board of Directors of the Company concludes determines in good faith, after consultation with its a financial advisor of nationally recognized reputation and outside legal counsel, that such Company Acquisition Proposal constitutes or is reasonably expected to result in a Company Superior Offer, (2) the Board of Directors of the Company determines in good faith, after consultation with outside legal counsel, that the failure to take such action with respect to such Company Acquisition Proposal would be reasonably likely to be inconsistent with the exercise by the Board of Directors of their its fiduciary duties under applicable Laws, (2) such Company Acquisition Proposal did not result from a breach of this Section 5.4(a) (other than any such breach that is unintentional and immaterial in effect)Law, (3) the Company gives to Parent the notice (which notice must state that the Company’s Board of Directors’ has made the determinations contemplated by the foregoing clauses (1) and (2)), required by Section 5.4(b6.4(b), and (4) the Company furnishes any nonpublic non-public information provided and/or provides access to the maker of the Company Acquisition Proposal such Third Party (or its directors, officers, employees or Representatives) only pursuant to a confidentiality agreement between after such Third Party enters into an Acceptable Confidentiality Agreement with the Company and such person on terms no less favorable to the Company than the Confidentiality Agreement (provided that such confidentiality agreement shall not in any way restrict the Company from complying with its disclosure obligations under this Agreement, including with respect to such proposal), and such furnished information is delivered to Parent at substantially the same time (to the extent such information has not been previously furnished or made available by the Company to Parent)only pursuant thereto; or (B) the Company from taking and disclosing waiving any standstill or similar provisions in any Acceptable Confidentiality Agreement entered into after the date of this Agreement in order to its stockholders permit the counterparty thereto to make a position contemplated by Rule Company Acquisition Proposal; or (C) the Company from complying with Rules 14d-9 and Rule 14e-2(a) 14e-2 promulgated under the Exchange Act with regard to any Company Acquisition 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 rules has may have under any other provision of this Agreement and in no event shall the Company or the Company Board of Directors or a committee thereof take any action that would constitute a Company Change in Recommendation in respect of a Company Acquisition Proposal other than in compliance with Section 5.4(d)Agreement.
(b) The From and after the date hereof until the earlier of the Effective Time and the termination of this Agreement in accordance with Article VIII, the Company shall promptly, promptly (and in no any event later than 24 hours after within twenty-four (24) hours) notify Parent orally and in writing of its receipt of (i) any Company Acquisition ProposalProposal (whether written, oral or otherwise), (ii) any inquiry or request for nonpublic information relating to regarding the Company or any of its Subsidiaries or for access to the properties, books and records of the Company or any of its Subsidiaries, in each case, in connection with or in response to a Company Acquisition Proposal, advise Parent orally and or (iii) any discussions or negotiations sought to be entered into or continued with the Company, 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 writing of such connection with or in response to a Company Acquisition Proposal or request, including providing Proposal. Any such notice pursuant to the foregoing sentence shall include (A) the identity of the person Third Party making or submitting such Company Acquisition Proposal or request, and, (xB) if it is in writing, a copy of such Company Acquisition Proposal and any related draft agreements agreements, and (yC) if oral, a reasonably detailed summary of any material communications relating to, and the material terms and conditions of, such Company Acquisition Proposal or request that is made or submitted by any person during the period between the date hereof and the Closingrequest. The Company shall (i) keep Parent reasonably informed in all material respects on a prompt basis with respect to any change to the status or material terms of any such Company Acquisition Proposal (and in no event later than 24 twenty-four (24) hours following any such change)) to any of the financial terms or any other material term or condition of any such Company Acquisition Proposal, including providing the information and documents set forth in clauses (iiA) through (C) of the foregoing sentence with respect to any material change thereto. The Company shall promptly provide to Parent as soon as practicable after receipt or delivery thereof with copies of all correspondence any non-public information regarding the Company and other written material sent or provided its Subsidiaries and promptly provide access to the Company from any third party in connection with any Company Acquisition Proposal or sent or provided by the Company to any third party in connection with any Company Acquisition Proposal properties, books and (iii) provide Parent with advance written notice of any scheduled meeting records of the Company Board and its Subsidiaries provided to any such Third Party which was not previously provided to Parent. The Company shall not enter into any agreement (or amend or modify any existing agreement) with any Third Party which would prevent the Company or any of Directors to discuss a Company Acquisition Proposalits Subsidiaries or their respective Representatives from complying with this Section 6.4.
(c) Upon Immediately following the execution of this Agreement, the Company 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 and all solicitations, discussions or negotiations existing as of the date of this Agreement between the Company or any of its Subsidiaries or any of their respective officers, directors, employees or Representatives and any person Third Party (other than Parentor its Representatives) in connection with or in response to, or that relate would be reasonably likely to any lead to, a Company Acquisition Proposal andProposal, to the extent provided by the applicable confidentiality agreement and (ii) request that each such Third Party and its Representatives promptly return or similar agreement governing such discussions, require any third party to such discussions to return to the Company or to destroy all confidential information theretofore furnished thereto by or on behalf of the Company and its Subsidiaries. The Company 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 the Company or any of its Subsidiaries (and destroy all analyses and other materials prepared by or on behalf of such Third Party that contain, reflect or analyze such information). If the Company becomes aware of any material breach by a Third Party (or its Representatives) of any standstill provision to which such Third Party is subject pursuant to any agreement with the Company or may become a party and agrees to use commercially reasonable efforts any of its Subsidiaries, the Company shall take all necessary actions to enforce the provisions of such agreementsstandstill provision.
(d) Except as contemplated by this otherwise provided in Section 5.4(d6.4(e) or Section 6.4(f), neither the Company nor the Board of Directors of the Company nor or any committee thereof shall (i) (A) withhold, withdraw, qualify withdraw or modify, or resolve to or publicly propose to withhold, withdrawwithdraw or modify, qualify or modify the Company Recommendation in a manner adverse to ParentParent and/or Merger Sub, (B) make any other public statement in connection with including by failing to include the Company Stockholders’ Meeting Recommendation in the Joint Proxy Statement, or this Agreement or the Transactions inconsistent with the Company Recommendation, (Cii) approverecommend, adopt or recommend approve, or propose publicly to recommend, adopt or approve, any Company Acquisition Proposal or (D) fail to reaffirm or re-publish the Company Recommendation within five days of being requested by Parent to do so (each such any action set forth described in clauses (A) through (D) above being this Section 6.4(d), a “Company Change of Recommendation”).
(e) or (ii) approve, adopt or recommend, or publicly propose Notwithstanding anything in this Agreement to approve, adopt or recommend, a 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 5.4(a)) or any tender offer providing for, with respect to, or in connection with any Company Acquisition Proposal. Notwithstanding the foregoingcontrary, the Board of Directors of the Company may at any time prior to receipt of the Company Stockholder Approval, in respect of a Company Acquisition Proposal, (i) make a Company Change of Recommendation and (ii) terminate this Agreement pursuant to Section 7.1(j) of this Agreement, if (and only if): (A) a Company Acquisition Proposal is made to the Company by a third party, and such offer is not withdrawn; (B) the Company’s Board of Directors determines in good faith after consultation with its financial advisors that such offer constitutes a Company Superior Offer; (C) following consultation with outside legal counsel, the Company’s Board of Directors determines that the failure to make a Company Change of Recommendation, or to terminate this Agreement pursuant to Section 7.1(j) of this Agreement, would be reasonably likely to be inconsistent with the exercise of its duties under applicable Laws, (D) the Company Board of Directors has provided to Parent five business days prior written notice of its intent to effect a Company Change of Recommendation (which notice shall include the reasonable details regarding the cause for, and nature of, the Company Change of Recommendation and, if requested by Parent, negotiated in good faith with Parent during such five business day period regarding revisions to this Agreement which would avoid such Company Change of Recommendation; and (E) the Company Board of Directors has provided to Parent advance written notice of such Company Change of Recommendation at least two hours prior thereto. The Board of Directors of the Company may not, in respect of a Company Acquisition Proposal, make a Company Change of Recommendation in a manner adverse to Parent except in compliance in all respects with this Section 5.4(d). For the avoidance of doubt, a change of the Company Recommendation to “neutral” is a Company Change of Recommendation.
(e) Nothing in this Agreement shall prohibit or restrict the Board of Directors of the Companymay, at any time prior to receipt of the Company Stockholder Approval, effect a Company Change of Recommendation in circumstances not involving connection with or relating to a Company Acquisition ProposalProposal (provided that, from effecting for the avoidance of doubt, such actions will nonetheless constitute a Company Change of Recommendation Recommendation) or terminate this Agreement pursuant to Section 8.1(j), if (but only if):
(i) a bona fide written Company Acquisition Proposal is received by the Company 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 a breach of this Section 6.4 and such Company Acquisition Proposal is not withdrawn;
(ii) the Board of Directors of the Company determines in good faith after consultation with a financial advisor of nationally recognized reputation and outside legal counsel, that such Company Acquisition Proposal constitutes a Company Superior Offer;
(iii) the Board of Directors of the Company determines in good faith, after consultation with outside legal counsel) , that the failure to take effect a Company Change of Recommendation or terminate this Agreement pursuant to Section 8.1(j) with respect to such action Company Superior Offer would be reasonably likely to be inconsistent with the exercise of the Board of Directors’ fiduciary duties under applicable Law;
(iv) the Company provides Parent at least four Business Days’ prior written notice stating that the Company will effect a Company Change of Recommendation pursuant to this Section 6.4(e) or terminate this Agreement pursuant to Section 8.1(j) after the expiration of such four Business Day period and providing the information described in clauses (A) through (C) of Section 6.4(b) with respect to such Company 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 Company Superior Offer shall require a new written notice to be delivered by the Company to Parent and the Company shall be required to comply again with the requirements of this Section 6.4(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 its the Company 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 Parent, that the Company Acquisition Proposal continues to constitute a Company Superior Offer and that the failure to effect a Company Change of Recommendation, or terminate this Agreement pursuant to Section 8.1(j), with respect to such Company Superior Offer would be reasonably likely to be inconsistent with the exercise of the Board of Directors’ fiduciary duties under applicable Laws if Law.
(and only if): (Af) Notwithstanding anything in this Agreement to the Company contrary, the Board of Directors has provided of the Company may, at any time prior to Parent five business days prior written notice receipt of its intent the Company Stockholder Approval, take the actions described in clause (i) of Section 6.4(d), not in connection with or in any way relating to a Company Acquisition Proposal (provided, that, for the avoidance of doubt, such actions will nonetheless constitute a Company Change of Recommendation), if (but only if):
(i) any material development or change in circumstances occurs or arises after the date hereof that was neither known to the Board of Directors of the Company nor reasonably foreseeable at the date of this Agreement (and which change or development does not relate to a Company Acquisition Proposal);
(ii) the Board of Directors of the Company determines in good faith, after consultation with outside legal counsel, that the failure to effect a Company 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;
(which notice shall include the reasonable details regarding the cause for, and nature of, iii) the Company Change of Recommendation) and, if requested by Parent, negotiated in good faith with provides Parent during such five business day period regarding revisions to this Agreement at least four Business Days’ prior written notice stating that would avoid such the Company will effect a Company Change of Recommendation pursuant to this Section 6.4(f) after the expiration of such four Business Day period and (B) 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 the Company to Parent and the Company shall be required to comply again with the requirements of this Section 6.4(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 has provided of the Company again determines in good faith, after consultation with outside legal counsel, and taking into account any adjustment or modification to Parent advance written notice the terms and conditions of such this Agreement proposed by Parent, that the failure to effect a Company Change of Recommendation at least two hours prior theretowith 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.
(fg) As used in The approval of the Company’s Board of Directors or any committee thereof for purposes of causing the Charter Restrictions, the DGCL 203 Restrictions and any other Takeover Law to be inapplicable to the Merger and the other transactions contemplated by this Agreement:, and the action to render the Company Rights Agreement inapplicable to this Agreement and the Merger and to exempt Parent, Merger Sub and their Affiliates from becoming an “Acquiring Person” in respect of the Merger and the other transactions contemplated by this Agreement (as such term is defined in the Company Rights Agreement), shall be irrevocable and unconditional and no Company Change of Recommendation or other action shall change such approval or action.
(h) The Company agrees that any breach of this Section 6.4 by any Representative of the Company or any Subsidiary of the Company who is a director, officer or employee of the Company or any Subsidiary of the Company 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 the Company or any Subsidiary of the Company, shall be deemed to be a breach of this Section 6.4 by the Company for all purposes of this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (NRG Energy, Inc.), Merger Agreement (GenOn Energy, Inc.)
Non-Solicitation by the Company. (a) The Company agrees that neither it nor any Subsidiary Except as permitted by this Section 5.4 or pursuant to the Additional Transactions, from the date hereof and prior to the earlier of the CompanyEffective Time and the Termination Date, nor any of the Company shall not, and the Company shall cause its Subsidiaries and its and their respective directors, officers, directors or employees, shall, employees and that it shall use its reasonable best efforts to cause its and their respective Representatives not to (and shall not authorize or permit its and their respective Representatives to), directly or indirectly: (i) solicit, initiate, seek or knowingly encourage (including by way of furnishing information) encourage, induce or knowingly take any other action designed to facilitate any inquiries regarding or the making, making or submission or announcement of any Company proposal that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (ii) furnish any nonpublic non-public information regarding the Company or any of its Subsidiaries or afford access to the business, properties, books or records of the Company or any of its Subsidiaries, to any person (other than Parent any ETP Party, Merger Sub or Merger Subtheir respective directors, officers, employees, affiliates or Representatives) in connection with or in response to a Company an Acquisition Proposal or any inquiries regarding an Acquisition Proposal, (iii) engage or participate in any discussions or negotiations with any a person (other than Parent any ETP Party, Merger Sub or Merger Subtheir respective directors, officers, employees, affiliates or Representatives) with respect to any Company an Acquisition Proposal, (iv) approve, endorse or recommend (or publicly propose to approve, endorse or recommend) any Company Acquisition Proposal or Proposal, (v) enter into any letter of intent, term sheet, memorandum of understanding, merger agreement, acquisition agreement, exchange agreement in principle or any other agreement providing for any Company Acquisition Transaction (except as or requiring the Company to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by Section 7.1(j)); providedthis Agreement, however(vi) unless the Board of Directors concludes in good faith, after consultation with its outside legal counsel, that the failure to take such action would reasonably be expected to constitute a breach by the Board of Directors of its fiduciary duties under applicable Law, (x) amend or grant any waiver, release or modification under, or fail to enforce, any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries or (y) take any action to make the provisions of Subchapters F, G and H of Chapter 25 of the PBCL inapplicable to any Acquisition Proposal or Acquisition Transaction or (vii) resolve or agree to do any of the foregoing. Notwithstanding the first sentence of this Section 5.4 shall not prohibit (A) 5.4, prior to obtaining the Company Shareholder Approval, the Company, or the Board of Directors of the Company, directly or indirectly through any officer, employee or Representative, prior to the receipt of the Company Stockholder Approval, from furnishing nonpublic may (x) furnish non-public information regarding the Company or any of its Subsidiaries to, and afford access to the business, properties, books or entering into or participating in discussions or negotiations withrecords of the Company and any of its Subsidiaries to, any person and (y) engage and participate in discussions and negotiations with any person, in each case in response to an unsolicited, written and bona fide written Company Acquisition Proposal that if the Board of Directors of the Company Company, prior to taking any such particular action, concludes in good faith, after consultation with its financial advisorsadvisors and outside legal counsel, constitutes or is could reasonably likely be expected to lead to result in a Company Superior Offer if (1) the Board of Directors of the Company concludes in good faith, after consultation with its outside legal counsel, that the failure to take such action with respect to such Company Acquisition Proposal would be reasonably likely to be inconsistent with was received after the exercise by the Board date of Directors of their duties under applicable Laws, (2) such Company Acquisition Proposal this Agreement and did not result from a material breach of this Section 5.4(a) (other than any such breach that is unintentional and immaterial in effect)5.4, (32) the Company gives provides to Parent ETP the notice required by Section 5.4(b)) with respect to such Acquisition Proposal, and (43) the Company furnishes any nonpublic non-public information provided to the maker of the Company Acquisition Proposal only pursuant to a confidentiality agreement between the Company and such person on terms no with provisions that are not less favorable restrictive to the Company such person than the provisions of the Confidentiality Agreement Agreement, a copy of which shall be promptly provided to ETP (provided it being agreed that such confidentiality agreement shall not in any way restrict between the Company from complying with its disclosure obligations under this Agreement, including with respect and such person shall permit such person to such proposalmake any Acquisition Proposal to the Board of Directors of the Company), and such furnished information is delivered to Parent at substantially the same time (to the extent such non-public information that has not been previously furnished or made available by to ETP is made available to the Company to Parent); or (B) maker of the Company from taking and disclosing to its stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act with regard to any Company Acquisition Proposal, provided, however, provide or make available such non-public information to ETP substantially concurrent with the time that compliance with such rules shall not in any way limit or modify the effect that any action taken pursuant it is provided to such rules has under other person. Nothing in this Section 5.4 shall prohibit the Company, or the Board of Directors, directly or indirectly through any other provision of officer, employee or Representative, from (1) informing any person that the Company is party to this Agreement and informing such person of the restrictions that are set forth in no event shall Section 5.4, or (2) disclosing factual information regarding the business, financial condition or results of operations of the Company or the fact that an Acquisition Proposal has been made, the identity of the party making such proposal or the material terms of such proposal in the Proxy Statement/Prospectus or otherwise; provided that, in the case of this clause (2), (x) the Company Board of Directors shall in good faith determine that such information, facts, identity or a committee thereof take any action terms is required to be disclosed under applicable Law or that would failure to make such disclosure is reasonably likely to constitute a breach of its fiduciary duties under applicable Law, and (y) the Company Change complies with the obligations set forth in Recommendation the proviso in respect Section 5.4(h). So long as the Company and its Representatives have otherwise complied with this Section 5.4, none of a the foregoing shall prohibit the Company and its Representatives from contacting any persons or group of persons who has made an Acquisition Proposal other than in compliance with after the date of this Agreement solely to request the clarification of the terms and conditions thereof so as to determine whether the Acquisition Proposal is, or could reasonably be expected to result in, a Superior Offer, and any such actions shall not be a breach of this Section 5.4(d)5.4.
(b) The Company shall promptly, and in no event later than 24 twenty-four (24) hours after its or any of its Representatives’ receipt of any Company Acquisition Proposal, Proposal or any inquiry or request for nonpublic discussions or negotiations regarding an Acquisition Transaction or non-public information relating to the Company or any of its Subsidiaries in connection with a Company an Acquisition Proposal, advise Parent ETP (orally and in writing writing) of such Company Acquisition Proposal Proposal, inquiry or request, request (including providing the identity of the person making or submitting such Company Acquisition Proposal Proposal, inquiry or request, and, (x) if it is in writing, a copy of such Company Acquisition Proposal Proposal, inquiry or request and any related draft agreements and (y) if oral, a reasonably detailed summary of thereof), in each case including any such Company Acquisition Proposal or request that is made or submitted by any person during the period between the date hereof and the Closingmodifications thereto. The Company shall (i) keep Parent ETP informed in all material respects on a prompt basis with respect to any change to the status or material terms of any such Company Acquisition Proposal (and in no event later than 24 twenty-four (24) hours following any such change), (ii) provide to Parent as soon as practicable after receipt or delivery thereof with copies of all correspondence and other written material sent or provided to the Company from any third party in connection with any Company Acquisition Proposal or sent or provided by the Company to any third party in connection with any Company Acquisition Proposal and (iii) provide Parent with advance written notice of any scheduled meeting of the Company Board of Directors to discuss a Company Acquisition Proposal.
(c) Upon Immediately following the execution of this Agreement, the Company shall, and shall cause its Subsidiaries and its and their respective officers, directors and employeesdirectors, employees and shall use its reasonable best efforts to cause its and their respective Representatives to, immediately cease and terminate any discussions existing as of the date of this Agreement between the Company or any of its Subsidiaries or any of their respective officers, directors, employees or Representatives and any person (other than ETE, Parent, ETP, Merger Sub or any of their respective officers, directors, employees or Representatives) that relate to any Company 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 the Company or to destroy all confidential information of the Company and its Subsidiaries. The Company 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 the Company or any of its Subsidiaries is or may become a party and agrees to use commercially reasonable efforts to enforce the provisions of such agreementsProposal.
(d) Except as contemplated by this otherwise provided in Section 5.4(d5.4(e) and Section 5.4(f), neither the Board of Directors of the Company nor any committee thereof shall may (i) (A) withhold, withdraw, amend, qualify or modify, or resolve to or publicly propose to withhold, withdraw, amend, qualify or modify modify, the Company Recommendation in a manner adverse to ParentETP, or (Bii) make any other public statement in connection with the Company Stockholders’ Meeting or this Agreement or the Transactions inconsistent with the Company Recommendation, (C) approverecommend, adopt or recommend approve, or propose publicly to recommend, adopt or approve, any Company Acquisition Proposal or (D) fail to reaffirm or re-publish the Company Recommendation within five days of being requested by Parent to do so (each such any action set forth described in clauses (A) through (D) above being this Section 5.4(d), a “Company Change of Recommendation”).
(e) or (ii) approve, adopt or recommend, or publicly propose Notwithstanding anything in this Agreement to approve, adopt or recommend, a 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 5.4(a)) or any tender offer providing forcontrary, with respect to, or in connection with any Company to an Acquisition Proposal. Notwithstanding the foregoing, the Board of Directors of the Company may at any time prior to receipt of the Company Stockholder Shareholder Approval, in respect of a Company Acquisition Proposal, (i) make a Company Change of Recommendation and (ii) and/or terminate this Agreement pursuant to Section 7.1(j) of this Agreement7.1(h), if (and only if): (i) (A) a Company written Acquisition Proposal (that did not result from a material breach of Section 5.4(a)) is made by a third party after the date hereof, and such Acquisition Proposal is made to the Company by a third party, and such offer is not withdrawn; , (B) the Company’s Board of Directors determines in good faith after consultation with its financial advisors and outside legal counsel that such offer Acquisition Proposal constitutes a Company Superior Offer; Offer and (C) following consultation with outside legal counsel, the Company’s Board of Directors of the Company determines that the failure to make a Company Change of Recommendation, Recommendation or to terminate this Agreement pursuant to Section 7.1(j7.1(h) of this Agreement, would be reasonably likely to be inconsistent with constitute a breach by the exercise Board of Directors of its fiduciary duties under applicable Laws, Law; and (Dii) (A) the Company Board of Directors has provided to Parent five business days provides ETP seventy-two (72) hour’s prior written notice of its intent intention to effect a Company Change of Recommendation (take such action, which notice shall include the reasonable details regarding the cause forinformation with respect to such Superior Offer that is specified in Section 5.4(b), (B) after providing such notice and nature ofprior to making such Change of Recommendation in connection with a Superior Offer or taking any action pursuant to Section 7.1(h) with respect to a Superior Offer, the Company Change of Recommendation and, if requested by Parent, negotiated shall negotiate in good faith with Parent ETP during such five business day seventy-two (72) hour period regarding (to the extent that ETP desires to negotiate) to make such revisions to the terms of this Agreement which would avoid Agreement, such Company Change of Recommendation; that the Acquisition Proposal ceases to constitute a Superior Offer, and (EC) the Company Board of Directors has provided to Parent advance written notice of such Company Change of Recommendation at least two hours prior thereto. The Board of Directors of the Company may notshall have considered in good faith any changes to this Agreement offered in writing by ETP, and following such seventy-two (72) hour period, shall have determined in good faith, after consultation with its outside legal counsel and financial advisors, that the Acquisition Proposal would continue to constitute a Superior Offer if such changes offered in writing by ETP were to be given effect; provided that, in respect of a Company the event that the Acquisition Proposal is thereafter modified by the party making such Acquisition Proposal, make a the Company Change shall provide written notice of Recommendation in a manner adverse to Parent except in compliance in all respects such modified Acquisition Proposal and shall again comply with this Section 5.4(d5.4(e). For the avoidance of doubt, a change of the Company Recommendation to “neutral” is a Company Change of Recommendation.
(ef) Nothing Other than in connection with a Superior Offer (which shall be subject to Section 5.4(e) and shall not be subject to this Section 5.4(f)), nothing in this Agreement shall prohibit or restrict the Board of Directors of the Company, at any time prior to receipt of the Company Stockholder Approval, in circumstances not involving or relating to from making a Company Acquisition Proposal, from effecting a Company Change of Recommendation if in response to an Intervening Event to the extent that (i) the Board determines in good faith, after consultation with the Company’s outside legal counsel, that the failure of the Board of Directors of the Company determines in good faith (after consultation with outside legal counsel) that failure to take such action effect a Change of Recommendation would be reasonably likely to be inconsistent constitute a breach of its fiduciary duties under applicable Law, and (ii) (A) the Company provides ETP seventy-two (72) hour’s prior written notice of its intention to take such action, which notice shall specify the reasons therefor, (B) after providing such notice and prior to making such Change of Recommendation, the Company shall negotiate in good faith with ETP during such seventy-two (72) hour period (to the exercise extent that ETP desires to negotiate) to make such revisions to the terms of this Agreement as would not permit the Board of Directors to make a Change of Recommendation pursuant to this Section 5.4(f), and (C) the Board of Directors of the Company shall have considered in good faith any changes to this Agreement offered in writing by ETP, and following such seventy-two (72) hour period, shall have determined in good faith, after consultation with its outside legal counsel and financial advisors, that the Board of Directors’ fiduciary duties under applicable Law would continue to require a Change of Recommendation with respect to an Intervening Event.
(g) Notwithstanding anything to the contrary in this Section 5.4, with respect to SXL and its Subsidiaries, the Company’s obligations under this Section 5.4 to take an action or not to take an action shall only apply to the extent permitted by the organizational documents and governance arrangements of SXL and its Subsidiaries and to the extent permitted by applicable Law.
(h) Nothing contained in this Section 5.4 or elsewhere in this Agreement shall prohibit the Company, SXL or the Board of Directors of the Company or the Board of Directors of SXL GP from taking and disclosing to its equityholders a position contemplated by Rule 14d-9 or 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” letter or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act; provided, however, that any such disclosure that addresses or relates to the approval, recommendation or declaration of advisability by the Board of Directors of its duties under applicable Laws if (and only if): (A) the Company with respect to this Agreement or an Acquisition Proposal shall be deemed to be a Change of Recommendation unless the Board of Directors has provided to Parent five business days prior written notice of its intent to effect a Company Change of Recommendation (which notice shall include the reasonable details regarding the cause for, and nature of, the Company Change of Recommendation) and, if requested by Parent, negotiated in good faith connection with Parent during such five business day period regarding revisions communication publicly states that its recommendation with respect to this Agreement that would avoid such Company Change has not changed or refers to the prior recommendation of Recommendation and (B) the Company Board of Directors has provided to Parent advance written notice of such Company Change of Recommendation at least two hours prior theretothe Company.
(fi) As used in this Agreement:
Appears in 2 contracts
Samples: Merger Agreement (Energy Transfer Partners, L.P.), Merger Agreement (Sunoco Inc)
Non-Solicitation by the Company. (a) The Except as expressly permitted by this Section 5.3, the Company agrees that neither it nor any Subsidiary shall, shall cause each of the Company, nor any of its Affiliates and its and their respective officers, directors or employees, shalland employees to, and shall direct the agents, financial advisors, investment bankers, attorneys, accountants and other representatives (collectively, “Representatives”) of the Company or any of its Affiliates to: (A) immediately cease any ongoing solicitation, knowing encouragement, discussions or negotiations with any persons that may be ongoing with respect to a Company Takeover Proposal, and promptly instruct (to the extent it shall use has contractual authority to do so and has not already done so prior to the date of this Agreement) or otherwise request, any person that has executed a confidentiality or non-disclosure agreement within the 24-month period prior to the date of this Agreement in connection with any actual or potential Company Takeover Proposal to return or destroy all such information or documents or material incorporating confidential information in the possession of such person or its reasonable best efforts to cause its Representatives and their respective Representatives not to (and shall not authorize or permit its and their respective Representatives to)B) until the Effective Time or, if earlier, the Termination Date, not, directly or indirectly: , (i1) solicit, initiate, seek initiate or knowingly facilitate or knowingly encourage (including by way of furnishing non-public information) or knowingly take any other action designed to facilitate any inquiries regarding, or the making, submission or announcement making of any proposal or offer that constitutes, or could reasonably be expected to lead to, a Company Acquisition Takeover Proposal, (ii) furnish any nonpublic information regarding the Company or any of its Subsidiaries to any person (other than Parent or Merger Sub) in connection with or in response to a Company Acquisition Proposal, (iii2) engage in, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any other person any non-public information in connection with any person or for the purpose of encouraging or facilitating, a Company Takeover Proposal (other than Parent than, solely in response to an unsolicited inquiry, to refer the inquiring person to this Section 5.3 and to limit its conversation or Merger Subother communication exclusively to such referral), or (3) approve, recommend or enter into, or propose to approve, recommend or enter into, any letter of intent or similar document, agreement, commitment, or agreement in principle (whether written or oral, binding or nonbinding) with respect to a Company Takeover Proposal. Except to the extent necessary to take any actions that the Company Acquisition Proposal, (iv) approve, endorse or recommend any Company Acquisition Proposal or (v) enter into any letter of intent, agreement in principle or other agreement providing for any Company Acquisition Transaction (except as contemplated by Section 7.1(j)); provided, however, that third party would otherwise be permitted to take pursuant to this Section 5.4 shall not prohibit 5.3 (and in such case only in accordance with the terms hereof) or with respect to the Standstill Waivers, (A) the Company, or the Board of Directors of the Company, directly or indirectly through any officer, employee or Representative, prior to the receipt of the Company Stockholder Approval, from furnishing nonpublic information regarding the Company 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 Company Acquisition Proposal that the Board of Directors of the Company concludes in good faith, after consultation with its financial advisors, constitutes or is reasonably likely to lead to a Company Superior Offer if (1) the Board of Directors of the Company concludes in good faith, after consultation with its outside legal counsel, that the failure to take such action with respect to such Company Acquisition Proposal would be reasonably likely to be inconsistent with the exercise by the Board of Directors of their duties under applicable Laws, (2) such Company Acquisition Proposal did not result from a breach of this Section 5.4(a) (other than any such breach that is unintentional and immaterial in effect), (3) the Company gives to Parent the notice required by Section 5.4(b), and (4) the Company furnishes any nonpublic information provided to the maker of the Company Acquisition Proposal only pursuant to a confidentiality agreement between the Company and such person on terms no less favorable to the Company than the Confidentiality Agreement (provided that such confidentiality agreement shall not in any way restrict the Company from complying with its disclosure obligations under this Agreement, including with respect to such proposal), and such furnished information is delivered to Parent at substantially the same time (to the extent such information has not been previously furnished or made available by the Company to Parent); or (B) the Company from taking and disclosing to its stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act with regard to any Company Acquisition 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 rules has under any other provision of this Agreement and in no event shall the Company or the Company Board of Directors or a committee thereof take any action that would constitute a Company Change in Recommendation in respect of a Company Acquisition Proposal other than in compliance with Section 5.4(d).
(b) The Company shall promptly, and in no event later than 24 hours after its receipt of any Company Acquisition Proposal, or any request for nonpublic information relating to the Company or any of its Subsidiaries in connection with a Company Acquisition Proposal, advise Parent orally and in writing of such Company Acquisition Proposal or request, including providing the identity of the person making or submitting such Company Acquisition Proposal or request, and, (x) if it is in writing, a copy of such Company Acquisition Proposal and any related draft agreements and (y) if oral, a reasonably detailed summary of any such Company Acquisition Proposal or request that is made or submitted by any person during the period between the date hereof and the Closing. The Company shall (i) keep Parent informed in all material respects on a prompt basis with respect to any change to the status or material terms of any such Company Acquisition Proposal (and in no event later than 24 hours following any such change), (ii) provide to Parent as soon as practicable after receipt or delivery thereof with copies of all correspondence and other written material sent or provided to the Company from any third party in connection with any Company Acquisition Proposal or sent or provided by the Company to any third party in connection with any Company Acquisition Proposal and (iii) provide Parent with advance written notice of any scheduled meeting of the Company Board of Directors to discuss a Company Acquisition Proposal.
(c) Upon the execution of this Agreement, the Company 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 as of the date of this Agreement between the Company or any of its Subsidiaries or any of their respective officers, directors, employees or Representatives and any person (other than Parent) that relate to any Company 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 the Company or to destroy all confidential information of the Company and its Subsidiaries. The Company agrees Subsidiaries shall not to, and to cause its Subsidiaries not to, waive, or otherwise release any third party from, the confidentiality and or waive, amend or modify any provision of, or grant permission under, (1) any standstill provisions of provision in any agreement to which the Company or any of its Subsidiaries is or may become a party and agrees or (2) any confidentiality provision in any agreement to use commercially reasonable efforts to enforce the provisions of such agreements.
(d) Except as contemplated by this Section 5.4(d), neither the Board of Directors of which the Company nor any committee thereof shall (i) (A) withhold, withdraw, qualify or modify, or resolve to or publicly propose to withhold, withdraw, qualify or modify the Company Recommendation in a manner adverse to Parent, (B) make any other public statement in connection with the Company Stockholders’ Meeting or this Agreement or the Transactions inconsistent with the Company Recommendation, (C) approve, adopt or recommend any Company Acquisition Proposal or (D) fail to reaffirm or re-publish the Company Recommendation within five days of being requested by Parent to do so (each such action set forth in clauses (A) through (D) above being a “Company Change of Recommendation”) or (ii) approve, adopt or recommend, or publicly propose to approve, adopt or recommend, a 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 5.4(a)) or any tender offer providing forof its Subsidiaries is a party other than, with respect toto this clause (2), any waiver, amendment, modification or in connection with any Company Acquisition Proposal. Notwithstanding the foregoing, the Board of Directors of the Company may at any time prior to receipt of the Company Stockholder Approval, in respect of permission under a Company Acquisition Proposal, (i) make a Company Change of Recommendation and (ii) terminate this Agreement pursuant to Section 7.1(j) of this Agreement, if (and only if): (A) a Company Acquisition Proposal is made to the Company by a third partyconfidentiality provision that does not, and such offer is would not withdrawn; (B) the Company’s Board of Directors determines in good faith after consultation with its financial advisors that such offer constitutes a Company Superior Offer; (C) following consultation with outside legal counsel, the Company’s Board of Directors determines that the failure to make a Company Change of Recommendation, or to terminate this Agreement pursuant to Section 7.1(j) of this Agreement, would be reasonably likely to be inconsistent with the exercise of its duties under applicable Lawsto, (D) the Company Board of Directors has provided to Parent five business days prior written notice of its intent to effect a Company Change of Recommendation (which notice shall include the reasonable details regarding the cause forfacilitate, and nature of, the Company Change of Recommendation and, if requested by Parent, negotiated encourage or relate in good faith with Parent during such five business day period regarding revisions to this Agreement which would avoid such Company Change of Recommendation; and (E) the Company Board of Directors has provided to Parent advance written notice of such Company Change of Recommendation at least two hours prior thereto. The Board of Directors of the Company may not, in respect of a Company Acquisition Proposal, make a Company Change of Recommendation in a manner adverse to Parent except in compliance in all respects with this Section 5.4(d). For the avoidance of doubt, a change of the Company Recommendation to “neutral” is a Company Change of Recommendation.
(e) Nothing in this Agreement shall prohibit or restrict the Board of Directors of the Company, at any time prior to receipt of the Company Stockholder Approval, in circumstances not involving or relating way to a Company Acquisition Proposal, from effecting Takeover Proposal or a potential Company Change of Recommendation if the Board of Directors of the Company determines in good faith (after consultation with outside legal counsel) that failure to take such action would be reasonably likely to be inconsistent with the exercise by the Board of Directors of its duties under applicable Laws if (and only if): (A) the Company Board of Directors has provided to Parent five business days prior written notice of its intent to effect a Company Change of Recommendation (which notice shall include the reasonable details regarding the cause for, and nature of, the Company Change of Recommendation) and, if requested by Parent, negotiated in good faith with Parent during such five business day period regarding revisions to this Agreement that would avoid such Company Change of Recommendation Takeover Proposal and (B) the Company Board shall, and shall cause its Subsidiaries to, use their respective reasonable best efforts to (1) enforce the confidentiality and standstill provisions of Directors has provided any such agreement, and (2) immediately take all steps within their power necessary to terminate any waiver that may have been heretofore granted, to any person other than Parent advance written notice or any of Parent’s Affiliates, under any such Company Change of Recommendation at least two hours prior theretoprovisions.
(fb) As used Notwithstanding anything to the contrary contained in Section 5.3(a), if at any time from and after the date of this Agreement and prior to obtaining the Company Stockholder Approval, the Company, directly or indirectly receives a bona fide, unsolicited written Company Takeover Proposal from any person that did not result from the Company’s, its Affiliates’ or the Company’s or its Affiliates’ Representatives breach of Section 5.3 and if the Company Board, acting upon the recommendation of the Company Special Committee if then in existence or otherwise by a majority of its Independent Directors, determines in good faith, after consultation with its outside financial advisors and outside legal counsel, that such Company Takeover Proposal constitutes or would reasonably be expected to lead to a Company Superior Proposal, then the Company may, directly or indirectly, (A) furnish, pursuant to an Acceptable Confidentiality Agreement:, information (including non-public information) with respect to the Company and its Subsidiaries, and afford access to the business, properties, assets, employees, officers, Contracts, books and records of the Company and its Subsidiaries, to the person who has made such Company Takeover Proposal and its Representatives and potential sources of financing; provided, that the Company shall substantially concurrently with the delivery to such person provide to Parent any non-public information concerning the Company or any of its Subsidiaries that is provided or made available to such person or its Representatives unless such non-public information has been previously provided or made available to Parent and (B) engage in or otherwise participate in discussions or negotiations with the person making such Company Takeover Proposal and its Representatives and potential sources of financing regarding such Company Takeover Proposal (including, as a part thereof, making counterproposals). “Acceptable Confidentiality Agreement” means any customary confidentiality agreement that contains provisions that are no less favorable to the Company than those applicable to Parent that are contained in the Confidentiality Agreement, provided that such confidentiality agreement (x) shall not prohibit compliance by the Company with any of the provisions of this Section 5.3 and (y) may contain a less restrictive standstill restriction.
Appears in 2 contracts
Samples: Merger Agreement (McMoran Exploration Co /De/), Merger Agreement (Freeport McMoran Copper & Gold Inc)
Non-Solicitation by the Company. (a) The Company agrees that neither it nor any Subsidiary of the Company, 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 permit give permission to 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 Company Acquisition Proposal, (ii) furnish any nonpublic information regarding the Company or any of its Subsidiaries to any person Person (other than Parent or Merger Sub) in connection with or in response to a Company Acquisition Proposal, (iii) continue or otherwise engage or participate in any discussions or negotiations with any person Person (other than Parent or Merger Sub) with respect to any Company Acquisition Proposal, (iv) approve, endorse or recommend any Company Acquisition Proposal except in connection with a Company Change of Recommendation pursuant to Section 6.4(e) or (v) except in connection with a Company Change of Recommendation pursuant to Section 6.4(e), enter into any letter of intent, agreement in principle arrangement or other agreement providing for understanding relating to any Company Acquisition Transaction (except other than a confidentiality agreement as contemplated by this Section 7.1(j6.4(a)); provided, however, that this Section 5.4 6.4 shall not prohibit (A) the Company, or the Board of Directors of the Company, directly or indirectly through any officer, employee or RepresentativeRepresentative of the Company or any of its Subsidiaries, prior to the receipt of obtaining the Company Stockholder Approval, from furnishing nonpublic information regarding the Company 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 Company Acquisition Proposal that the Board of Directors of the Company concludes in good faith, after consultation with its financial advisors, constitutes or is could reasonably likely be expected to lead to result in a Company Superior Offer if (1) the Board of Directors of the Company concludes in good faith, after consultation with its outside legal counsel, that the failure to take such action with respect to such Company Acquisition Proposal would be reasonably likely to be inconsistent with the exercise by the Board of Directors of their duties under applicable Laws, (2) such Company Acquisition Proposal did not result from a material breach of this Section 5.4(a) (other than any such breach that is unintentional and immaterial in effect)6.4, (32) prior thereto the Company gives to has given Parent the notice required by Section 5.4(b), 6.4(b) and (43) the Company furnishes any nonpublic information provided to the maker of the Company Acquisition Proposal only pursuant to a confidentiality agreement between the Company and such person on Person containing customary terms no less favorable and conditions substantially similar to the Company than those contained in the Confidentiality Agreement (provided that such confidentiality agreement shall not in any way restrict the Company from complying with its disclosure obligations under this Agreement, including with respect to such proposal), and such furnished information is delivered to Parent at substantially the same time (to the extent such information has not been previously furnished or made available by the Company to Parent); or (B) the Company from taking and disclosing to its stockholders a position contemplated by Rule complying with Rules 14d-9 and Rule 14e-2(a) 14e-2 promulgated under the Exchange Act with regard to any Company Acquisition Proposal, provided, however, that compliance with such rules shall not in any way limit or modify the effect Proposal (it being understood that any action taken pursuant to such rules has under any other provision of this Agreement and in no event shall the Company or the Company Board of Directors or a committee thereof take any action disclosure that would constitute constitutes a Company Change in of Recommendation in shall be subject to the provisions of this Section 6.4 with respect of a Company Acquisition Proposal other than in compliance with Section 5.4(dthereto).
(b) The Company shall promptly, and in no event later than 24 hours twenty-four (24) hours, after its receipt of any Company Acquisition Proposal, or any request for nonpublic information relating to the Company or any of its Subsidiaries in connection with a Company Acquisition Proposal, advise Parent orally and in writing of such Company Acquisition Proposal or request, request (including providing the identity of the person Person making or submitting such Company Acquisition Proposal or request, and, (xi) if it is in writing, a copy of such Company Acquisition Proposal and any related draft agreements and or (yii) if it is oral, a reasonably detailed summary of any such Company Acquisition Proposal or request thereof that is made or submitted by any person Person during the period between the date hereof and the Closing). The Company shall (i) keep Parent informed in all material respects on a prompt basis with respect to any change to the status or material terms of any such Company Acquisition Proposal (and and, in the case of a change of the amount of consideration being offered, in no event later than 24 twenty-four (24) hours following any such change), (ii) provide to Parent as soon as practicable after receipt or delivery thereof with copies of all correspondence and other written material sent or provided to the Company from any third party in connection with any Company Acquisition Proposal or sent or provided by the Company to any third party in connection with any Company Acquisition Proposal and (iii) provide including providing Parent with advance written notice a copy of any scheduled meeting of the Company Board of Directors to discuss a Company Acquisition Proposaldraft agreements and modifications thereof.
(c) Upon the execution of this Agreement, the Company 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 existing as of the date of this Agreement or negotiations between the Company or any of its Subsidiaries or any of their respective officers, directors, employees or Representatives and any person Person (other than Parent) that relate to any Company Acquisition Proposal and, and shall use reasonable best efforts to obtain the extent provided by the applicable confidentiality agreement prompt return or similar agreement governing such discussions, require destruction of any third party confidential information previously furnished to such discussions to return to the Company or to destroy all confidential information Persons within twelve (12) months of the Company and its Subsidiaries. The Company 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 the Company or any of its Subsidiaries is or may become a party and agrees to use commercially reasonable efforts to enforce the provisions of such agreementsdate hereof.
(d) Except as contemplated by this otherwise provided in Section 5.4(d6.4(e) or Section 6.4(f), neither none of the Company, the Board of Directors of the Company nor any committee thereof shall may (i) (A) withhold, withdraw, qualify or modify, or resolve to or publicly propose to withhold, withdraw, qualify or modify modify, the Company Recommendation in a manner adverse to Parent, (B) Parent or make any other public statement in connection with the Company Stockholders’ Meeting or this Agreement or the Transactions inconsistent with the Company RecommendationRecommendation (any of the foregoing, (C) approve, adopt or recommend any Company Acquisition Proposal or (D) fail to reaffirm or re-publish the Company Recommendation within five days of being requested by Parent to do so (each such action set forth in clauses (A) through (D) above being a “Company Change of Recommendation”) ); or (ii) approve, adopt or recommend, or publicly propose to approve, adopt or recommend, enter into a merger agreement, letter of intent, written definitive 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 5.4(a)) or any tender offer providing for, with respect to, or in connection with any for a Company Acquisition Proposal. Notwithstanding the foregoing, the Transaction.
(e) The Board of Directors of the Company may at any time prior to receipt of the Company Stockholder Approval, (A) effect a Company Change of Recommendation in respect of a Company Acquisition Proposal, (i) make a Company Change of Recommendation ; and (iiB) terminate this Agreement pursuant to Section 7.1(j8.1(c)(iii) of this Agreementin order to enter into a written definitive agreement providing for a Company Acquisition Transaction, if (and only if): (Ai) a Company Acquisition Proposal is made to the Company by a third party, and such offer is not withdrawn; (Bii) the Company’s Board of Directors determines in good faith after consultation with its financial advisors that such offer constitutes a Company Superior Offer; (Ciii) following consultation with outside legal counsel, the Company’s Board of Directors determines that the failure to make a Company Change of Recommendation, or to terminate this Agreement pursuant to Section 7.1(j) of this Agreement, take such action would be reasonably likely to be inconsistent with the exercise result in a breach of its fiduciary duties under applicable Laws, ; (Div) the Company Board of Directors has provided to provides Parent five business days (5) Business Days’ prior written notice of its intent intention to effect a Company Change of Recommendation (take such action, which notice shall include the reasonable details regarding information with respect to such Company Superior Offer that is specified in Section 6.4(b) (it being understood that any material revision or amendment to the cause forterms of such Company Superior Offer shall require a new notice and, in such case, all references to five (5) Business Days in this Section 6.4(e) shall be deemed to be three (3) Business Days); and nature of(v) at the end of the five (5) Business Day period described in clause (iv), the Board of Directors of the Company Change of Recommendation andagain makes the determination in good faith after consultation with its outside legal counsel and financial advisors (after negotiating in good faith with Parent and its Representatives, if requested by Parent, negotiated in good faith with Parent during such five business day (5) Business Day period regarding revisions any adjustments or modifications to the terms of this Agreement which would avoid proposed by Parent and taking into account any such Company Change of Recommendation; and (Eadjustments or modifications) that the Company Board Acquisition Proposal continues to be a Company Superior Offer and that the failure to take such action would be reasonably likely to result in a breach of Directors has provided to Parent advance written notice of such Company Change of Recommendation at least two hours prior thereto. its fiduciary duties under applicable Laws.
(f) The Board of Directors of the Company may not, in respect of a Company Acquisition Proposal, make a Company Change of Recommendation in a manner adverse to Parent except in compliance in all respects with this Section 5.4(d). For the avoidance of doubt, a change of the Company Recommendation to “neutral” is a Company Change of Recommendation.
(e) Nothing in this Agreement shall prohibit or restrict the Board of Directors of the Companymay, at any time prior to receipt of the Company Stockholder Approval, in circumstances not involving or relating to a Company Acquisition Proposal, from effecting effect a Company 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 the Company and its Subsidiaries, taken as a whole, or (y) the stockholders of the Company (including the benefits of the Merger to the Company or the stockholders of the Company), 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 Company 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, the Company’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) the Company provides Parent 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 the Company again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (after negotiating in good faith with Parent and its Representatives, if requested by Parent, during such five (5) Business Day period regarding any adjustments or modifications to the terms of this Agreement proposed by Parent 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 Company Change of Recommendation pursuant to Section 6.4(f), the Company shall nevertheless submit this Agreement to the stockholders of the Company for the purpose of obtaining the Company Stockholder Approval at the Company Stockholders’ Meeting and nothing contained herein shall be deemed to relieve the Company of such obligation, unless this Agreement shall have been terminated in accordance with its terms prior to the Company Stockholders’ Meeting.
(h) The parties agree that a Company Change of Recommendation effected in accordance with Section 6.4(e) or Section 6.4(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 the Company 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 the Company or any standstill agreement to which it is a party unless the Board of Directors of the Company determines in good faith (faith, after consultation with outside legal counsel) , that failure to take such action would be reasonably likely to be inconsistent with result in a breach of its fiduciary duties under applicable Laws. During such period, the exercise Company 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 the Company 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 if (and only if): (A) the Company Board of Directors has provided to Parent five business days prior written notice of its intent to effect a Company Change of Recommendation (which notice shall include the reasonable details regarding the cause for, and nature of, the Company Change of Recommendation) and, if requested by Parent, negotiated in good faith with Parent during such five business day period regarding revisions to this Agreement that would avoid such Company Change of Recommendation and (B) the Company Board of Directors has provided to Parent advance written notice of such Company Change of Recommendation at least two hours prior theretoLaws.
(f) As used in this Agreement:
Appears in 2 contracts
Samples: Merger Agreement (Exelon Corp), Merger Agreement (Constellation Energy Group Inc)
Non-Solicitation by the Company. (a) The Company agrees that neither it nor any Subsidiary of the Companyits 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 permit give permission to 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 Company Acquisition Proposal, (ii) furnish any nonpublic information regarding the Company or any of its Subsidiaries to any person (other than Parent or Merger Sub) Person in connection with or in response to a Company Acquisition Proposal, (iii) continue or otherwise engage or participate in any discussions or negotiations with any person (other than Parent or Merger Sub) Person with respect to any Company Acquisition Proposal, (iv) except in connection with a Company Change of Recommendation pursuant to Section 6.6(e), approve, endorse or recommend any Company Acquisition Proposal Proposal, or (v) except in connection with a Company Change of Recommendation pursuant to Section 6.6(e), enter into any letter of intent, arrangement, agreement in principle or other agreement providing for understanding relating to any Company Acquisition Transaction (except as contemplated by Section 7.1(j))Transaction; provided, however, that this Section 5.4 6.6 shall not prohibit (A) the Company, or the Board of Directors of the CompanyCompany or any committee thereof, directly or indirectly through any officer, employee or Representative, prior to obtaining the receipt of the Company Stockholder Court Approval, from furnishing nonpublic information regarding the Company 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 Company Acquisition Proposal that the Board of Directors of the Company or any committee thereof concludes in good faith, after consultation with its outside legal counsel and a financial advisorsadvisor, constitutes or is would reasonably likely be expected to lead to result in a Company Superior Offer if (1) the Board of Directors of the Company 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 Company Acquisition Proposal would be reasonably likely to be inconsistent with the exercise by the Board result in a breach of Directors of their its fiduciary duties under applicable LawsLaw, (2) such Company Acquisition Proposal did not result from a material breach of this Section 5.4(a) (other than any such breach that is unintentional and immaterial in effect)6.6, (3) prior thereto the Company gives to has given Parent the notice required by Section 5.4(b6.6(b), and (4) the Company furnishes any nonpublic information provided to the maker of the Company Acquisition Proposal only pursuant to a confidentiality agreement between the Company and such person on Person containing customary terms no and conditions that in the aggregate are not materially less favorable to restrictive than those contained in the Company than the Confidentiality Agreement (provided that such confidentiality agreement shall not in any way restrict the Company from complying with its disclosure obligations under this Non-Disclosure Agreement, including with respect to such proposal), and such furnished information is delivered to Parent at substantially the same time (to the extent such information has not been previously furnished or made available by the Company to Parent); or (B) the Company from taking and disclosing to its stockholders a position contemplated by complying with Rule 14d-9 and or Rule 14e-2(a) 14e-2 promulgated under the Exchange Act with regard to any Company Acquisition Proposal, providedincluding any so called “stop, howeverlook and listen” communications, or making any other statement or disclosure that the Company determines in good faith, after consultation with its outside legal counsel, that compliance with such rules shall not in any way limit or modify the effect that any action taken pursuant to such rules has under any other provision failure of this Agreement and in no event shall the Company to make such statement or disclosure would reasonably be expected to be a violation of applicable Law; provided that the Company Board of Directors or a committee thereof take any action that would constitute of the Company may make a Company Change of Recommendation only in Recommendation in respect of a Company Acquisition Proposal other than in compliance accordance with Section 5.4(d6.6(e).
(b) The Company shall promptly, and in no event later than 24 twenty-four (24) hours after its receipt of any Company Acquisition Proposal, or any request for nonpublic information relating to the Company or any of its Subsidiaries in connection with a Company Acquisition Proposal, advise Parent orally and in writing of such Company Acquisition Proposal or request, request (including providing the identity of the person Person making or submitting such Company Acquisition Proposal or request, and, (xi) if it is in writing, a copy of such Company Acquisition Proposal and any related draft agreements and (yii) if oral, a reasonably detailed summary of any such Company Acquisition Proposal or request thereof that is made or submitted by any person Person during the period between the date hereof and the ClosingClosing Date). The Company shall (i) keep Parent informed in all material respects on a prompt basis with respect to any change to the status or material terms of any such Company Acquisition Proposal (and in no event later than 24 twenty-four (24) hours following any such change), (ii) provide to Parent as soon as practicable after receipt or delivery thereof with copies of all correspondence and other written material sent or provided to the Company from any third party in connection with any Company Acquisition Proposal or sent or provided by the Company to any third party in connection with any Company Acquisition Proposal and (iii) provide including providing Parent with advance written notice a copy of any scheduled meeting of the Company Board of Directors to discuss a Company Acquisition Proposaldraft agreements and modifications thereof.
(c) Upon the execution of this Agreement, the Company 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 existing as of the date of this Agreement or negotiations between the Company or any of its Subsidiaries or any of their respective officers, directors, employees or Representatives and any person (other than Parent) Person that relate to any Company Acquisition Proposal and, 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 prior 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 the Company or to destroy all confidential information of the Company and its Subsidiaries. The Company 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 the Company or any of its Subsidiaries is or may become a party and agrees to use commercially reasonable efforts to enforce the provisions of such agreementsdate hereof.
(d) Except as contemplated by this otherwise provided in Section 5.4(d6.6(e), neither the Board of Directors of the Company nor (or any committee thereof shall thereof) may not (i) (A) withhold, withdraw, qualify withdraw or modify, or resolve to or publicly propose to withhold, withdrawwithdraw or modify, qualify or modify the Company Recommendation in a manner adverse to Parent, (B) Parent or make any other public statement statement, filing or release, in connection with obtaining the Company Stockholders’ Meeting Court Approval or this Agreement or the Transactions otherwise, inconsistent with the Company Recommendation, (Cii) approve, adopt endorse or recommend any Company Acquisition Proposal or (D) fail to reaffirm or re-publish any of the Company Recommendation within five days of being requested by Parent to do so (each such action foregoing set forth in clauses (Ai) through and (D) above being ii), a “Company Change of Recommendation”) or (iiiii) approve, adopt or recommend, or publicly propose to approve, adopt or recommend, enter into a merger agreement, letter of intent, written definitive 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 5.4(a)) or any tender offer providing for, with respect to, or in connection with any for a Company Acquisition Proposal. Notwithstanding the foregoing, the Transaction.
(e) The Board of Directors of the Company or any committee thereof may at any time prior to receipt of the Court Approval (i) effect a Company Stockholder Approval, Change of Recommendation in respect of a Company Acquisition Proposal, and/or (iii) make if it elects to do so in connection with or following a Company Change of Recommendation and (ii) Recommendation, terminate this Agreement pursuant to Section 7.1(j8.1(d)(iii) of this Agreementin order to enter into a written definitive agreement providing for a Company Acquisition Transaction, if (and only if): (A) a Company Acquisition Proposal is made to the Company by a third party, and such offer is not withdrawn; (B) the Company’s Board of Directors of the Company 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 Company Superior Offer; (C) following consultation with outside legal counsel, the Company’s Board of Directors determines that the failure to make a Company Change of Recommendation, or to terminate this Agreement pursuant to Section 7.1(j) of this Agreement, would be reasonably likely to be inconsistent with the exercise of its duties under applicable Laws, (D) the Company Board of Directors has provided to Parent five business days prior written notice of its intent to effect a Company Change of Recommendation (which notice shall include the reasonable details regarding the cause for, and nature of, the Company Change of Recommendation and, if requested by Parent, negotiated in good faith with Parent during such five business day period regarding revisions to this Agreement which would avoid such Company Change of Recommendation; and (E) the Company Board of Directors has provided to Parent advance written notice of such Company Change of Recommendation at least two hours prior thereto. The Board of Directors of the Company may not, in respect of a Company Acquisition Proposal, make a Company Change of Recommendation in a manner adverse to Parent except in compliance in all respects with this Section 5.4(d). For the avoidance of doubt, a change of the Company Recommendation to “neutral” is a Company Change of Recommendation.
(e) Nothing in this Agreement shall prohibit or restrict the Board of Directors of the Company, at any time prior to receipt of the Company Stockholder Approval, in circumstances not involving or relating to a Company Acquisition Proposal, from effecting a Company Change of Recommendation if the Board of Directors of the Company such 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 Law; (D) the Company provides Parent five (5) Business Days’ prior written notice of its intention to take such action, which notice shall include the information with respect to such Company Superior Offer that is specified in Section 6.6(b) (it being understood that any material revision or amendment to the terms of such Company Superior Offer shall require a new notice and, in such case, all references to five (5) Business Days in this Section 6.6(e) shall be inconsistent with deemed to be two (2) Business Days); and (E) at the exercise by end of the five (5) Business Day period described in clause (D), the Board of Directors of its duties under applicable Laws if (and only if): (A) the Company Board of Directors has provided to Parent five business days prior written notice of its intent to effect or such committee thereof again makes the determination in good faith after consultation with outside legal counsel and a Company Change of Recommendation financial advisor (which notice shall include the reasonable details regarding the cause for, and nature of, the Company Change of Recommendation) and, if requested by Parent, negotiated after negotiating in good faith with Parent and its Representatives if requested by Parent during such five business day (5) Business Day period regarding revisions any adjustments or modifications to the terms of this Agreement proposed by Parent and taking into account any such adjustments or modifications) that would avoid such Company Change of Recommendation and (B) the Company Board Acquisition Proposal continues to be a Company 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 Directors has provided to Parent advance written notice of such Company Change of Recommendation at least two hours prior theretoits fiduciary duties under applicable Law.
(f) As used During the period from the date of this Agreement through the Effective Time, neither the Company 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 the Company or any standstill agreement to which it is a party unless the Board of Directors of the Company or any committee thereof determines in this Agreement: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 Law. During such period, the Company 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 the Company 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 Law.
Appears in 2 contracts
Samples: Merger Agreement (S1 Corp /De/), Merger Agreement (Fundtech LTD)
Non-Solicitation by the Company. (a) The Company agrees that neither it nor any Subsidiary of the Company, 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 permit give permission to 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 of, any Company proposal that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (ii) furnish any nonpublic non-public information regarding the Company or any of its Subsidiaries to, or afford access to the business, properties, books or records of the Company or any of its Subsidiaries to, any person (other than Parent or Merger Sub) ), in connection with or in response to a Company an Acquisition Proposal, (iii) engage or participate in any discussions or negotiations with any person (other than Parent or Merger Sub) with respect to any Company Acquisition Proposal, (iv) approve, endorse or recommend (or publicly propose to approve, endorse or recommend) any Company Acquisition Proposal or Proposal, (v) enter into any letter of intent, term sheet, memorandum of understanding, merger agreement, acquisition agreement, exchange agreement in principle or any other agreement providing for any Company Acquisition Transaction or requiring the Company to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement (except as contemplated by Section 7.1(j7.1(h))) or (vi) resolve, propose or agree to do any of the foregoing; provided, however, that this Section 5.4 5.3 shall not prohibit prohibit: (A) the Company, or ora duly constituted and acting committee of the Board of Directors of the CompanyCompany consisting solely of independent directors (the “Special Committee”), directly or indirectly through any officer, employee or orPermitted Representative, prior to the receipt of obtaining the Company Stockholder Approval, from furnishing nonpublic information regarding the Company 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 Company unsolicited Acquisition Proposal that the Board of Directors of the Company and the Special Committee, prior to taking any such particular action, concludes in good faith, after consultation with its itstheir financial advisorsadvisors and outside legal counsel (it being understood that, for purposes of this Section 5.3, such a financial advisor or outside legal counsel shall include a financial advisor or outside legal counsel to a duly constituted and acting committee of the Board of Directors of the Companythe Special Committee), constitutes or is reasonably likely to lead to result in a Company Superior Offer if (1) the Board of Directors of the Company concludes concludesand the Special Committee conclude in good faith, after consultation with its itstheir outside legal counsel, that the failure to take such action with respect to such Company Acquisition Proposal would be reasonably likely to be inconsistent with the exercise constitute a breach by the Board of Directors of their its fiduciary duties under applicable Laws, (2) such Company Acquisition Proposal did not result from a breach of this Section 5.4(a) (other than any such breach that is unintentional and immaterial in effect)5.3, (3) the Company gives to Parent the notice required by this Section 5.4(b)5.3, and (4) the Company furnishes any nonpublic non-public information provided to the maker of the Company Acquisition Proposal only pursuant to a confidentiality agreement between the Company and such person on substantially the same terms no less favorable to the Company than as the Confidentiality Agreement (provided it being acknowledged and agreed that such confidentiality agreement shall need not in contain a “standstill” or similar provision that prohibits the third party recipient of such information from making any way restrict the Company from complying with its disclosure obligations under this Agreement, including with respect to such proposal), Acquisition Proposal) and such furnished information is delivered to Parent at substantially the same time (to the extent such non-public information that has not been previously furnished or made available by to Parent is made available to the Company maker of the Acquisition Proposal, provideprovides such non-public information to Parent)Parent substantially concurrent with the time that it is provided to such other person; or (B) the Company from taking and disclosing to its stockholders a position contemplated by Rule complying with Rules 14d-9 and Rule 14e-2(a) 14e-2 promulgated under the Exchange Act with regard to any Company Acquisition Proposal, provided, however, that compliance Proposal (or making any similar communication to stockholders in connection with such rules shall not in any way limit amendment to the terms of a tender offer or modify the effect that exchange offer) so long as any action taken pursuant or statement made to such rules has under so comply is consistent with this Section 5.3; (C) the Company, or the Board of Directors, directly or indirectly through any other provision officer, employee or Representative disclosing factual information regarding the business, financial condition or results of this Agreement and in no event shall operations of the Company or the fact that an Acquisition Proposal has been made, the identity of the party making such proposal or the material terms of such proposal in the Proxy Statement or otherwise, to the extent the Company in good faith determines that such information, facts, identity or terms is required to be disclosed under applicable Law or that failure to make such disclosure is reasonably likely to be inconsistent with its fiduciary duties under applicable Law; or (D) the Company, or the Board of Directors, directly or indirectly through any officer, employee or Representative making any statement or disclosure to the Company’s stockholders required by applicable Law; provided that any such action taken or statement or disclosure made that relates to an Acquisition Proposal shall be deemed to be a Change of Recommendation unless the Board of Directors reaffirms its recommendation in favor of the proposed transaction in such statement or disclosure or in connection with such action (except that a committee thereof take any action that would constitute a Company Change in Recommendation in respect of a Company Acquisition Proposal other than mere “stop, look and listen” disclosure in compliance with Rule 14d-9(f) of the 1934 Act shall not constitute a Change of Recommendation). So long as the Company and its Representatives have otherwise complied with this Section 5.4(d)5.3, none of the foregoing shall prohibit the CompanySpecial Committee and its Permitted Representatives from contacting in writing any persons or group of persons who has made an Acquisition Proposal after the date of this Agreement solely to request the clarification of the terms and conditions thereof so as to determine whether the Acquisition Proposal is, or could reasonably be expected to lead to, a Superior Offer, and any such actions shall not be a breach of this Section 5.3.
(b) The Company shall promptly, and in no event later than 24 twenty-four (24) hours after its or any of its Representatives’ receipt of any Company Acquisition Proposal, Proposal or any request for nonpublic non-public information relating to the Company or any of its Subsidiaries in connection with a Company an Acquisition Proposal, advise Parent orally and in writing of such Company Acquisition Proposal or request, request (including providing the identity of the person making or submitting such Company Acquisition Proposal or request, and, (x) if it is in writing, a copy of such Company Acquisition Proposal and any related draft agreements and (y) if oral, a reasonably detailed summary of any such Company Acquisition Proposal or request thereof that is made or submitted by any person during the period between the date hereof and the Closing). The Company shall (i) keep Parent informed in all material respects on a prompt basis with respect to any change to the status or material terms of any such Company Acquisition Proposal (and in no event later than 24 twenty-four (24) hours following any such change), (ii) . The Company agrees that it shall promptly provide to Parent as soon as practicable after receipt any non-public information concerning itself or delivery thereof with copies of all correspondence and other written material sent or its Subsidiaries provided to the Company from any third party other person in connection with any Company Acquisition Proposal or sent or which was not previously provided by the Company to any third party in connection with any Company Acquisition Proposal and (iii) provide Parent with advance written notice of any scheduled meeting of the Company Board of Directors to discuss a Company Acquisition ProposalParent.
(c) Upon Immediately following the execution of this Agreement, (i) the Company 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 as of the date of this Agreement between the Company or any of its Subsidiaries or any of their respective officers, directors, employees or Representatives and any person (other than Parent) ), including Energy Transfer, that relate to any Company Acquisition Proposal andProposal, 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 and (ii) the Company shall, and shall use its reasonable best efforts to cause its Representatives to, cause to be returned or to destroy destroyed all confidential information provided by or on behalf of the Company and its Subsidiaries. The Company 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 the Company or any of its Subsidiaries is or may become a party and agrees Subsidiary to use commercially reasonable efforts to enforce the provisions of such agreementsperson.
(d) Except as contemplated by this otherwise provided in Section 5.4(d5.3(e), neither the Board of Directors of the Company nor any committee thereof shall may (i) (A) withhold, withdraw, qualify withdraw or modify, or resolve to or publicly propose to withhold, withdrawwithdraw or modify, qualify or modify the Company Recommendation in a manner adverse to Parent, or (Bii) make any other public statement in connection with the Company Stockholders’ Meeting or this Agreement or the Transactions inconsistent with the Company Recommendation, (C) approverecommend, adopt or recommend approve, or propose publicly to recommend, adopt or approve, any Company Acquisition Proposal or (D) fail to reaffirm or re-publish the Company Recommendation within five days of being requested by Parent to do so (each such any action set forth described in clauses (A) through (D) above being this Section 5.3(d), a “Company Change of Recommendation”).
(e) Notwithstanding anything in this Agreement to the contrary, with respect to (i) an Intervening Event or (ii) approve, adopt or recommend, or publicly propose to approve, adopt or recommend, a 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 5.4(a)) or any tender offer providing for, with respect to, or in connection with any Company an Acquisition Proposal. Notwithstanding the foregoing, the Board of Directors of the Company may at any time prior to receipt of the Company Stockholder Approval, in respect of a Company Acquisition Proposal, (i) make a Company Change of Recommendation and (ii) and/or terminate this Agreement pursuant to Section 7.1(j) of this Agreement7.1(h), if (and only if): (A) a Company in the case of (ii) above, (x) an Acquisition Proposal (that did not result from a breach of Section 5.3(a)) is made to the Company by a third party, and such offer Acquisition Proposal is not withdrawn; and (By) the Company’s Board of Directors determines determinesand the Special Committee determine in good faith after consultation with its itstheir financial advisors and outside legal counsel that such offer Acquisition Proposal constitutes a Company Superior Offer; and (Cz) the Company’s Board of Directors and the Special Committee determine to terminate this Agreement pursuant to Section 7.1(h), (B) in the case of (i) above, following consultation with outside legal counsel, the Company’s Board of Directors determines determinesand the Special Committee determine that the failure to make a Company Change of Recommendation, or to terminate this Agreement pursuant to Section 7.1(j) of this Agreement, Recommendation would be reasonably likely to be inconsistent with constitute a breach by the exercise Board of Directors of its fiduciary duties under applicable Laws; (C) in the case of (i) and (ii) above, (Dx) the Company Board of Directors has provided to provides Parent five business days ninety-six (96) hours’ prior written notice of its intent intention to effect a Company Change of Recommendation (take such action, which notice shall include the reasonable details regarding information with respect to such Intervening Event or Superior Offer, as the cause forcase may be, that is specified in Section 5.3(b), (y) after providing such notice and nature ofprior to making such Change of Recommendation in connection with an Intervening Event or a Superior Offer or taking any action pursuant to Section 7.1(h) with respect to a Superior Offer, the Company Change of Recommendation and, if requested by Parent, negotiated shall negotiate in good faith with Parent during such five business day ninety-six (96) hour period regarding (to the extent that Parent desires to negotiate) to make such revisions to the terms of this Agreement which as would avoid such Company Change of Recommendation; and (E) the Company Board of Directors has provided to Parent advance written notice of such Company Change of Recommendation at least two hours prior thereto. The Board of Directors of the Company may not, in respect of a Company Acquisition Proposal, make a Company Change of Recommendation in a manner adverse to Parent except in compliance in all respects with this Section 5.4(d). For the avoidance of doubt, a change of the Company Recommendation to “neutral” is a Company Change of Recommendation.
(e) Nothing in this Agreement shall prohibit or restrict the Board of Directors of the Company, at any time prior to receipt of the Company Stockholder Approval, in circumstances not involving or relating to a Company Acquisition Proposal, from effecting a Company Change of Recommendation if permit the Board of Directors of the Company determines and the Special Committee not to effect a Change of Recommendation in good faith (after consultation connection with outside legal counsel) that failure an Intervening Event or a Superior Offer or to take such action would be reasonably likely pursuant to be inconsistent with the exercise by Section 7.1(h) in response to a Superior Offer, and (z) the Board of Directors of its duties under applicable Laws if (and only if): (A) the Company Board and the Special Committee shall have considered in good faith any changes to this Agreement offered in writing by Parent and shall have determined in good faith, after consultation with itstheir outside legal counsel and financial advisors, that the event continues to constitute an Intervening Event or that the Superior Offer would continue to constitute a Superior Offer, in each case if such changes offered in writing by Parent were to be given effect; provided that, for the avoidance of Directors has provided to Parent five business days prior written notice of its intent to doubt, the Company shall not effect a Company Change of Recommendation in connection with an Intervening Event or a Superior Offer or take any action pursuant to Section 7.1(h) with respect to a Superior Offer prior to the time that is ninety-six (which 96) hours after it has provided the written notice shall include required by clause (x) above; provided further, that in the reasonable details regarding event that the cause for, and nature ofAcquisition Proposal is thereafter modified by the party making such Acquisition Proposal, the Company Change of Recommendation) and, if requested by Parent, negotiated in good faith with Parent during such five business day period regarding revisions to this Agreement that would avoid such Company Change of Recommendation and (B) the Company Board of Directors has provided to Parent advance shall provide written notice of such modified Acquisition Proposal and shall again comply with this Section 5.3(e), except that the Company’s advance written notice obligation shall be reduced to seventy-two (72) hours (rather than the ninety-six (96) hours otherwise contemplated by this Section 5.3(e)) and the time the Company shall be permitted to effect a Change of Recommendation at least in connection with a Superior Offer or to take action pursuant to Section 7.1(h) with respect to a Superior Offer shall be reduced to the time that is seventy-two (72) hours after it has provided such written notice (rather than the time that is the ninety-six (96) hours otherwise contemplated by this Section 5.3(e)) (but in no event prior theretoto the original ninety-six (96) hour advance notice period).
(f) As used in this Agreement:
Appears in 1 contract
Non-Solicitation by the Company. (a) The Until the earlier of the Effective Time or the date this Agreement is terminated in accordance with the provisions of Section 9.01, the Company agrees that neither it nor any Subsidiary of the Companyits Subsidiaries, nor any of their respective officers, directors or employees, employees (acting through the Company Board or the Special Committee or otherwise) shall, and that it shall use its reasonable best efforts to cause its and their respective Representatives not to (and shall not authorize or permit give permission to its and their respective Representatives to), directly or indirectly: (i) solicit, initiate, seek initiate 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 Company Acquisition Proposal, (ii) furnish any nonpublic information regarding the Company or any of its Subsidiaries to any person (other than Parent or Merger Sub) Person in connection with or in response to a Company Acquisition Proposal, (iii) continue or otherwise engage or participate in any discussions or negotiations with any person (other than Parent or Merger Sub) Person with respect to any Company Acquisition Proposal, (iv) except in connection with a Change in Recommendation pursuant to Section 6.02(e), approve, endorse or recommend any Company Acquisition Proposal Proposal, or (v) except in connection with a Change in Recommendation pursuant to Section 6.02(e), enter into any letter of intent, arrangement, agreement in principle or other agreement providing for understanding relating to any Company Acquisition Transaction (except as contemplated by Section 7.1(j))Transaction; provided, however, that this Section 5.4 6.02 shall not prohibit (A) the Company, Special Committee or the Company Board of Directors (acting through and at the direction of the CompanySpecial Committee), directly or indirectly through any officer, employee or Representative, prior to obtaining the receipt of the Company Stockholder Approval, from furnishing nonpublic information regarding the Company 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 Company Acquisition Proposal that the Special Committee or Company Board of Directors of the Company concludes in good faith, after consultation with its outside legal counsel and a financial advisorsadvisor, constitutes or is could reasonably likely be expected to lead to result in a Company Superior Offer if (1) the Board of Directors of the Company Special Committee concludes in good faith, after consultation with its outside legal counsel, that the failure to take such action with respect to such Company Acquisition Proposal would be reasonably likely to be inconsistent with the exercise by Special Committee’s or the Board of Directors of their Company Board’s fiduciary duties to the Stockholders under applicable LawsLaw, (2) such Company Acquisition Proposal did not result from a material breach of this Section 5.4(a) (other than any such breach that is unintentional and immaterial in effect)6.02, (3) prior thereto the Company gives to Parent has given Merger SPV the notice required by Section 5.4(b6.02(b), and (4) the Company furnishes any nonpublic information provided to the maker of the Company Acquisition Proposal only pursuant to a confidentiality agreement between the Company and such person on Person containing customary terms no less favorable to the Company than the Confidentiality Agreement (provided that such confidentiality agreement shall not in any way restrict the Company from complying with its disclosure obligations under this Agreement, including with respect to such proposal), and such furnished information is delivered to Parent at substantially the same time (to the extent such information has not been previously furnished or made available by the Company to Parent)conditions; or (B) the Company from taking and disclosing to its stockholders a position contemplated by complying with Rule 14d-9 and or Rule 14e-2(a) 14e-2 promulgated under the Exchange Act with regard to any Company Acquisition Proposal, providedincluding any so called “stop, howeverlook and listen” communications, or making any other statement or disclosure that the Company determines in good faith, after consultation with its outside legal counsel, that compliance with such rules shall not in any way limit or modify the effect that any action taken pursuant to such rules has under any other provision failure of this Agreement and in no event shall the Company to make such statement or disclosure would reasonably be expected to be a violation of applicable Law; provided that the Special Committee or the Company Board of Directors or may make a committee thereof take any action that would constitute a Company Change in Recommendation only in respect of a Company Acquisition Proposal other than in compliance accordance with Section 5.4(d6.02(e).
(b) The Until the earlier of the Effective Time or the date this Agreement is terminated in accordance with the provisions of Section 9.01, the Company shall promptly, and in no event later than 24 twenty-four (24) hours after its receipt of any Company Acquisition Proposal, or any request for nonpublic information relating to the Company or any of its Subsidiaries in connection with a Company Acquisition Proposal, advise Parent Merger SPV orally and in writing of such Company Acquisition Proposal or request, request (including providing the identity of the person Person making or submitting such Company Acquisition Proposal or request, and, (xi) if it is in writing, a copy of such Company Acquisition Proposal and any related draft agreements and (yii) if oral, a reasonably detailed summary of any such Company Acquisition Proposal or request thereof that is made or submitted by any person Person during the period between the date hereof and the ClosingClosing Date). The Company shall (i) keep Parent Merger SPV informed in all material respects on a prompt basis with respect to any change to the status or material terms of any such Company Acquisition Proposal (and in no event later than 24 twenty-four (24) hours following any such change), (ii) provide to Parent as soon as practicable after receipt or delivery thereof including providing Merger SPV with copies of all correspondence and other written material sent or provided to the Company from any third party in connection with any Company Acquisition Proposal or sent or provided by the Company to any third party in connection with any Company Acquisition Proposal and (iii) provide Parent with advance written notice a copy of any scheduled meeting of the Company Board of Directors to discuss a Company Acquisition Proposaldraft agreements and modifications thereof.
(c) Upon the execution of this Agreement, the Company shall, and shall cause its Subsidiaries and Subsidiaries, its and their respective officers, directors and employees, and the Special Committee, and shall use its reasonable best efforts to cause its and their respective Representatives to, immediately cease and terminate any existing activities, discussions existing as of the date of this Agreement or negotiations between the Company or any of its Subsidiaries or any of their respective officers, directors, employees or Representatives or the Special Committee, and any person (other than Parent) Person that relate to any Company Acquisition Proposal and, 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 prior 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 the Company or to destroy all confidential information of the Company and its Subsidiaries. The Company 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 the Company or any of its Subsidiaries is or may become a party and agrees to use commercially reasonable efforts to enforce the provisions of such agreementsdate hereof.
(d) Except as contemplated by this otherwise provided in Section 5.4(d6.02(e), neither the Board of Directors of Special Committee and/or the Company nor any committee thereof shall Board may not (i) (A) withhold, withdraw, qualify withdraw or modify, or resolve to or publicly propose to withhold, withdrawwithdraw or modify, qualify or modify the Company Board Recommendation in a manner adverse to Parent, (B) Merger SPV or make any other public statement statement, filing or release, in connection with obtaining the Company Stockholders’ Meeting Stockholder Approval or this Agreement or the Transactions otherwise, inconsistent with the Company Board Recommendation, (Cii) approve, adopt endorse or recommend any Company Acquisition Proposal or (D) fail to reaffirm or re-publish any of the Company Recommendation within five days of being requested by Parent to do so (each such action foregoing set forth in clauses (Ai) through and (D) above being ii), a “Company Change of in Recommendation”) or (iiiii) approve, adopt or recommend, or publicly propose to approve, adopt or recommend, enter into a merger agreement, letter of intent, written definitive 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 5.4(a)) or any tender offer providing for, with respect to, or in connection with any for a Company Acquisition Proposal. Notwithstanding the foregoing, the Transaction.
(e) The Special Committee or Company Board of Directors of the Company may at any time prior to receipt of the Company Stockholder Approval, Approval (i) effect a Change in Recommendation in respect of a Company Acquisition Proposal, (i) make a Company Change of Recommendation and and/or (ii) if it elects to do so in connection with or following a Change in Recommendation, terminate this Agreement pursuant to Section 7.1(j9.01(e) of this Agreementin order to enter into a written definitive agreement providing for a Company Acquisition Transaction, if (and only if): (A) a Company Acquisition Proposal is made to the Company by a third party, and such offer is not withdrawn; (B) the Company’s Special Committee or Company Board of Directors determines in good faith after consultation with its outside legal counsel and a financial advisors advisor that such offer constitutes a Company Superior Offer; and (C) following consultation with outside legal counsel, the Company’s Board of Directors determines that the failure to make a Company Change of Recommendation, Special Committee or to terminate this Agreement pursuant to Section 7.1(j) of this Agreement, would be reasonably likely to be inconsistent with the exercise of its duties under applicable Laws, (D) the Company Board of Directors has provided to Parent five business days prior written notice of its intent to effect a Company Change of Recommendation (which notice shall include the reasonable details regarding the cause for, and nature of, the Company Change of Recommendation and, if requested by Parent, negotiated in good faith with Parent during such five business day period regarding revisions to this Agreement which would avoid such Company Change of Recommendation; and (E) the Company Board of Directors has provided to Parent advance written notice of such Company Change of Recommendation at least two hours prior thereto. The Board of Directors of the Company may not, in respect of a Company Acquisition Proposal, make a Company Change of Recommendation in a manner adverse to Parent except in compliance in all respects with this Section 5.4(d). For the avoidance of doubt, a change of the Company Recommendation to “neutral” is a Company Change of Recommendation.
(e) Nothing in this Agreement shall prohibit or restrict the Board of Directors of the Company, at any time prior to receipt of the Company Stockholder Approval, in circumstances not involving or relating to a Company Acquisition Proposal, from effecting a Company Change of Recommendation if the Board of Directors of the Company determines in good faith (after consultation with outside legal counsel) that failure to take such action would be reasonably likely to be inconsistent with the exercise by the Board of Directors result in a breach of its respective fiduciary duties under applicable Laws if Law; (and only if): (AD) the Special Committee or the Company Board of Directors has provided to Parent provides Merger SPV five business days (5) Business Days’ prior written notice of its intent intention to effect a Company Change of Recommendation (take such action, which notice shall include the reasonable details regarding information with respect to such Company Superior Offer that is specified in Section 6.02(b) (it being understood that any material revision or amendment to the cause forterms of such Company Superior Offer shall require a new notice and, in such case, all references to five (5) Business Days in this Section 6.02(e) shall be deemed to be two (2) Business Days); and nature of(E) at the end of the five (5) Business Day period described in clause (D), the Special Committee or the Company Change of Recommendation) and, if requested by Parent, negotiated Board again makes the determination in good faith after consultation with outside legal counsel and a financial advisor (after negotiating in good faith with Parent Merger SPV and its Representatives if requested by Merger SPV during such five business day (5) Business Day period regarding revisions any adjustments or modifications to the terms of this Agreement proposed by Merger SPV and taking into account any such adjustments or modifications) that would avoid such Company Change of Recommendation and (B) the Company Board Acquisition Proposal continues to be a Company 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 Directors has provided to Parent advance written notice of such Company Change of Recommendation at least two hours prior theretoits respective fiduciary duties under applicable Law.
(f) As used During the period from the date of this Agreement through the earlier of the Effective Time or the date this Agreement is terminated in this Agreement:accordance with the provisions of Section 9.01, neither the Company 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 the Company or any standstill agreement to which it is a party unless the Special Committee or the Company Board 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 respective fiduciary duties under applicable Law. During such period, the Company 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 Special Committee or the Company Board 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 respective fiduciary duties under applicable Law.
Appears in 1 contract
Samples: Merger Agreement (Marlborough Software Development Holdings Inc.)
Non-Solicitation by the Company. (a) The Company agrees that neither it nor any Subsidiary of the Company, 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 permit give permission to 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 of, any Company proposal that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (ii) furnish any nonpublic non-public information regarding the Company or any of its Subsidiaries to, or afford access to the business, properties, books or records of the Company or any of its Subsidiaries to, any person (other than Parent or Merger Sub) ), in connection with or in response to a Company an Acquisition Proposal, (iii) engage or participate in any discussions or negotiations with any person (other than Parent or Merger Sub) with respect to any Company Acquisition Proposal, (iv) approve, endorse or recommend (or publicly propose to approve, endorse or recommend) any Company Acquisition Proposal or Proposal, (v) enter into any letter of intent, term sheet, memorandum of understanding, merger agreement, acquisition agreement, exchange agreement in principle or any other agreement providing for any Company Acquisition Transaction or requiring the Company to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement (except as contemplated by Section 7.1(j7.1(h))) or (vi) resolve, propose or agree to do any of the foregoing; provided, however, that this Section 5.4 shall not prohibit (A) the Company, or the Board of Directors of the Company, directly or indirectly through any officer, employee or Representative, prior to the receipt of obtaining the Company Stockholder Approval, from furnishing nonpublic information regarding the Company 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 Company unsolicited Acquisition Proposal that the Board of Directors of the Company Company, prior to taking any such particular action, concludes in good faith, after consultation with its financial advisorsadvisors and outside legal counsel (it being understood that, for purposes of this Section 5.4, such a financial advisor or outside legal counsel shall include a financial advisor or outside legal counsel to a duly constituted and acting committee of the Board of Directors of the Company), constitutes or is reasonably likely to lead to result in a Company Superior Offer if (1) the Board of Directors of the Company concludes in good faith, after consultation with its outside legal counsel, that the failure to take such action with respect to such Company Acquisition Proposal would be reasonably likely to be inconsistent with the exercise constitute a breach by the Board of Directors of their its fiduciary duties under applicable Laws, (2) such Company Acquisition Proposal did not result from a breach of this Section 5.4(a) (other than any such breach that is unintentional and immaterial in effect)5.4, (3) the Company gives to Parent the notice required by Section 5.4(b)5.4, and (4) the Company furnishes any nonpublic non-public information provided to the maker of the Company Acquisition Proposal only pursuant to a confidentiality agreement between the Company and such person on substantially the same terms no less favorable to the Company than as the Confidentiality Agreement (provided it being acknowledged and agreed that such confidentiality agreement shall need not in contain a “standstill” or similar provision that prohibits the third party recipient of such information from making any way restrict the Company from complying with its disclosure obligations under this Agreement, including with respect to such proposal), Acquisition Proposal) and such furnished information is delivered to Parent at substantially the same time (to the extent such non-public information that has not been previously furnished or made available by to Parent is made available to the Company maker of the Acquisition Proposal, provide such non-public information to Parent)Parent substantially concurrent with the time that it is provided to such other person; or (B) the Company from taking and disclosing to its stockholders a position contemplated by Rule complying with Rules 14d-9 and Rule 14e-2(a) 14e-2 promulgated under the Exchange Act with regard to any Company Acquisition Proposal, provided, however, that compliance Proposal (or making any similar communication to stockholders in connection with such rules shall not in any way limit amendment to the terms of a tender offer or modify the effect that exchange offer) so long as any action taken pursuant or statement made to such rules has under so comply is consistent with this Section 5.4; ( C) the Company, or the Board of Directors, directly or indirectly through any other provision officer, employee or Representative disclosing factual information regarding the business, financial condition or results of this Agreement and in no event shall operations of the Company or the fact that an Acquisition Proposal has been made, the identity of the party making such proposal or the material terms of such proposal in the Proxy Statement or otherwise, to the extent the Company in good faith determines that such information, facts, identity or terms is required to be disclosed under applicable Law or that failure to make such disclosure is reasonably likely to be inconsistent with its fiduciary duties under applicable Law; or (D) the Company, or the Board of Directors, directly or indirectly through any officer, employee or Representative making any statement or disclosure to the Company’s stockholders required by applicable Law; provided that any such action taken or statement or disclosure made that relates to an Acquisition Proposal shall be deemed to be a Change of Recommendation unless the Board of Directors reaffirms its recommendation in favor of the proposed transaction in such statement or disclosure or in connection with such action (except that a committee thereof take any action that would constitute a Company Change in Recommendation in respect of a Company Acquisition Proposal other than mere “stop, look and listen” disclosure in compliance with Rule 14d-9(f) of the 1934 Act shall not constitute a Change of Recommendation). So long as the Company and its Representatives have otherwise complied with this Section 5.4(d)5.4, none of the foregoing shall prohibit the Company and its Representatives from contacting in writing any persons or group of persons who has made an Acquisition Proposal after the date of this Agreement solely to request the clarification of the terms and conditions thereof so as to determine whether the Acquisition Proposal is, or could reasonably be expected to lead to, a Superior Offer, and any such actions shall not be a breach of this Section 5.4.
(b) The Company shall promptly, and in no event later than 24 twenty-four (24) hours after its or any of its Representatives’ receipt of any Company Acquisition Proposal, Proposal or any request for nonpublic non-public information relating to the Company or any of its Subsidiaries in connection with a Company an Acquisition Proposal, advise Parent orally and in writing of such Company Acquisition Proposal or request, request (including providing the identity of the person making or submitting such Company Acquisition Proposal or request, and, (x) if it is in writing, a copy of such Company Acquisition Proposal and any related draft agreements and (y) if oral, a reasonably detailed summary of any such Company Acquisition Proposal or request thereof that is made or submitted by any person during the period between the date hereof and the Closing). The Company shall (i) keep Parent informed in all material respects on a prompt basis with respect to any change to the status or material terms of any such Company Acquisition Proposal (and in no event later than 24 twenty-four (24) hours following any such change), (ii) . The Company agrees that it shall promptly provide to Parent as soon as practicable after receipt any non-public information concerning itself or delivery thereof with copies of all correspondence and other written material sent or its Subsidiaries provided to the Company from any third party other person in connection with any Company Acquisition Proposal or sent or which was not previously provided by the Company to any third party in connection with any Company Acquisition Proposal and (iii) provide Parent with advance written notice of any scheduled meeting of the Company Board of Directors to discuss a Company Acquisition ProposalParent.
(c) Upon Immediately following the execution of this Agreement, (i) the Company 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 as of the date of this Agreement between the Company or any of its Subsidiaries or any of their respective officers, directors, employees or Representatives and any person (other than Parent) that relate to any Company Acquisition Proposal andProposal, 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 and (ii) the Company shall, and shall use its reasonable best efforts to cause its Representatives to, cause to be returned or to destroy destroyed all confidential information provided by or on behalf of the Company and its Subsidiaries. The Company 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 the Company or any of its Subsidiaries is or may become a party and agrees Subsidiary to use commercially reasonable efforts to enforce the provisions of such agreementsperson.
(d) Except as contemplated by this otherwise provided in Section 5.4(d5.4(e), neither the Board of Directors of the Company nor any committee thereof shall may (i) (A) withhold, withdraw, qualify withdraw or modify, or resolve to or publicly propose to withhold, withdrawwithdraw or modify, qualify or modify the Company Recommendation in a manner adverse to Parent, or (Bii) make any other public statement in connection with the Company Stockholders’ Meeting or this Agreement or the Transactions inconsistent with the Company Recommendation, (C) approverecommend, adopt or recommend approve, or propose publicly to recommend, adopt or approve, any Company Acquisition Proposal or (D) fail to reaffirm or re-publish the Company Recommendation within five days of being requested by Parent to do so (each such any action set forth described in clauses (A) through (D) above being this Section 5.4(d), a “Company Change of Recommendation”).
(e) Notwithstanding anything in this Agreement to the contrary, with respect to (i) an Intervening Event or (ii) approve, adopt or recommend, or publicly propose to approve, adopt or recommend, a 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 5.4(a)) or any tender offer providing for, with respect to, or in connection with any Company an Acquisition Proposal. Notwithstanding the foregoing, the Board of Directors of the Company may at any time prior to receipt of the Company Stockholder Approval, in respect of a Company Acquisition Proposal, (i) make a Company Change of Recommendation and (ii) and/or terminate this Agreement pursuant to Section 7.1(j) of this Agreement7.1(h), if (and only if): (A) a Company in the case of (ii) above, (x) an Acquisition Proposal (that did not result from a breach of Section 5.4(a)) is made to the Company by a third party, and such offer Acquisition Proposal is not withdrawn; (By) the Company’s Board of Directors determines in good faith after consultation with its financial advisors and outside legal counsel that such offer Acquisition Proposal constitutes a Company Superior Offer; and (Cz) the Company’s Board of Directors determines to terminate this Agreement pursuant to Section 7.1(h), (B) in the case of (i) above, following consultation with outside legal counsel, the Company’s Board of Directors determines that the failure to make a Company Change of Recommendation, or to terminate this Agreement pursuant to Section 7.1(j) of this Agreement, Recommendation would be reasonably likely to be inconsistent with constitute a breach by the exercise Board of Directors of its fiduciary duties under applicable Laws; (C) in the case of (i) and (ii) above, (Dx) the Company Board of Directors has provided to provides Parent five business days ninety-six (96) hour’s prior written notice of its intent intention to effect a Company Change of Recommendation (take such action, which notice shall include the reasonable details regarding information with respect to such Intervening Event or Superior Offer, as the cause forcase may be, that is specified in Section 5.4(b), (y) after providing such notice and nature ofprior to making such Change of Recommendation in connection with an Intervening Event or a Superior Offer or taking any action pursuant to Section 7.1(h) with respect to a Superior Offer, the Company Change of Recommendation and, if requested by Parent, negotiated shall negotiate in good faith with Parent during such five business day ninety-six (96) hour period regarding (to the extent that Parent desires to negotiate) to make such revisions to the terms of this Agreement which as would avoid such Company Change of Recommendation; and (E) the Company Board of Directors has provided to Parent advance written notice of such Company Change of Recommendation at least two hours prior thereto. The Board of Directors of the Company may not, in respect of a Company Acquisition Proposal, make a Company Change of Recommendation in a manner adverse to Parent except in compliance in all respects with this Section 5.4(d). For the avoidance of doubt, a change of the Company Recommendation to “neutral” is a Company Change of Recommendation.
(e) Nothing in this Agreement shall prohibit or restrict the Board of Directors of the Company, at any time prior to receipt of the Company Stockholder Approval, in circumstances not involving or relating to a Company Acquisition Proposal, from effecting a Company Change of Recommendation if permit the Board of Directors of the Company determines not to effect a Change of Recommendation in good faith (after consultation connection with outside legal counsel) that failure an Intervening Event or a Superior Offer or to take such action would be reasonably likely pursuant to be inconsistent with the exercise by Section 7.1(h) in response to a Superior Offer, and (z) the Board of Directors of its duties under applicable Laws if (and only if): (A) the Company Board shall have considered in good faith any changes to this Agreement offered in writing by Parent and shall have determined in good faith, after consultation with its outside legal counsel and financial advisors, that the event continues to constitute an Intervening Event or that the Superior Offer would continue to constitute a Superior Proposal, in each case if such changes offered in writing by Parent were to be given effect; provided that, for the avoidance of Directors has provided to Parent five business days prior written notice of its intent to doubt, the Company shall not effect a Company Change of Recommendation in connection with an Intervening Event or a Superior Offer or take any action pursuant to Section 7.1(h) with respect to a Superior Offer prior to the time that is ninety-six (which 96) hours after it has provided the written notice shall include required by clause (x) above; provided further, that in the reasonable details regarding event that the cause for, and nature ofAcquisition Proposal is thereafter modified by the party making such Acquisition Proposal, the Company Change of Recommendation) and, if requested by Parent, negotiated in good faith with Parent during such five business day period regarding revisions to this Agreement that would avoid such Company Change of Recommendation and (B) the Company Board of Directors has provided to Parent advance shall provide written notice of such modified Acquisition Proposal and shall again comply with this Section 5.4(e), except that the Company’s advance written notice obligation shall be reduced to seventy-two (72) hours (rather than the ninety-six (96) hours otherwise contemplated by this Section 5.4(e)) and the time the Company shall be permitted to effect a Change of Recommendation at least in connection with a Superior Offer or to take action pursuant to Section 7.1(h) with respect to a Superior Offer shall be reduced to the time that is seventy-two (72) hours after it has provided such written notice (rather than the time that is the ninety-six (96) hours otherwise contemplated by this Section 5.4(e)) (but in no event prior theretoto the original ninety-six (96) hour advance notice period).
(f) As used in this Agreement:
Appears in 1 contract
Samples: Agreement and Plan of Merger (Energy Transfer Equity, L.P.)
Non-Solicitation by the Company. (a) The Company agrees that neither it nor any Subsidiary of the Companyits Subsidiaries, nor any of their respective officers, directors or employees, shallwill, and that it shall use its reasonable best efforts to will cause its and their respective Representatives not to (and shall will not authorize or permit give permission to its and their respective Representatives to), directly or indirectly: 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 Company Acquisition Proposal, (ii) furnish any nonpublic information regarding the Company or any of its Subsidiaries to any person (other than Parent or Merger Sub) Person in connection with or in response to a Company Acquisition Proposal, (iii) continue or otherwise engage or participate in any discussions or negotiations with any person (other than Parent or Merger Sub) Person with respect to any Company Acquisition Proposal, (iv) except in connection with a Company Change of Recommendation pursuant to Sections 6.5(e) or (f), approve, endorse or recommend any Company Acquisition Proposal Proposal, or (v) except in connection with a Company Change of Recommendation pursuant to Section 6.5(e), enter into any letter of intent, arrangement, agreement in principle or other agreement providing for understanding relating to any Company Acquisition Transaction (except as contemplated by Section 7.1(j))Transaction; provided, however, that this Section 5.4 shall 6.5 will not prohibit (A) the Company, or the Board of Directors of the CompanyCompany Board, directly or indirectly through any officer, employee or Representative, prior to the receipt of the Company Stockholder Approval and the Company Special Required Approval, from furnishing nonpublic information regarding the Company 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 Company Acquisition Proposal that the Company Board of Directors of the Company concludes in good faith, after consultation with its outside legal counsel and a financial advisorsadvisor, constitutes or is could reasonably likely be expected to lead to a Company Superior Offer if (1) the Company Board of Directors of the Company concludes in good faith, after consultation with its outside legal counsel, that the failure to take such action with respect to such Company Acquisition Proposal would be reasonably likely to be inconsistent with the exercise by the Board result in a breach of Directors of their its fiduciary duties under applicable LawsLaw, (2) such Company Acquisition Proposal did not result from a breach of this Section 5.4(a) (other than any such breach that is unintentional and immaterial in effect)6.5, (3) prior thereto the Company gives to has given Parent the notice required by Section 5.4(b6.5(b), and (4) the Company furnishes any nonpublic information provided to the maker of the Company Acquisition Proposal only pursuant to a confidentiality agreement between the Company and such person on Person containing customary terms no and conditions that in the aggregate are not materially less favorable to restrictive than those contained in the Company than the Confidentiality Non-Disclosure Agreement (provided that such confidentiality agreement shall not in any way restrict the Company from complying with its disclosure obligations under this Agreement, including with respect to such proposal), and such furnished information is delivered to Parent at substantially the same time (to the extent such information has not been previously furnished or made available by the Company to Parent); or (B) the Company from taking and disclosing to its stockholders a position contemplated by complying with Rule 14d-9 and or Rule 14e-2(a) 14e-2 promulgated under the Exchange Act with regard to any Company Acquisition Proposal, providedincluding any so called “stop, howeverlook and listen” communications, or making any other statement or disclosure that the Company determines in good faith, after consultation with its outside legal counsel, that compliance with such rules shall not in any way limit or modify the effect that any action taken pursuant to such rules has under any other provision failure of this Agreement and in no event shall the Company to make such statement or disclosure would reasonably be expected to be a violation of applicable Law; provided that the Company Board of Directors or a committee thereof take any action that would constitute may make a Company Change of Recommendation only in Recommendation in respect of a Company Acquisition Proposal other than in compliance accordance with Section 5.4(dSections 6.5(e) or (f).
(b) The Company shall will promptly, and in no event later than 24 hours after its receipt of any Company Acquisition Proposal, or any request for nonpublic information relating to the Company or any of its Subsidiaries in connection with a Company Acquisition Proposal, advise Parent orally and in writing of such Company Acquisition Proposal or request, (including providing the identity of the person Person making or submitting such Company Acquisition Proposal or requestProposal, and, (xi) if it is in writing, a copy of such Company Acquisition Proposal and any related draft agreements and (yii) if oral, a reasonably detailed summary of any such Company Acquisition Proposal or request thereof that is made or submitted by any person Person during the period between the date hereof and the ClosingClosing Date). The Company shall (i) will keep Parent informed in all material respects on a prompt basis with respect to any change to the status or material terms of any such Company Acquisition Proposal (and in no event later than 24 hours following any such change), (ii) provide to Parent as soon as practicable after receipt or delivery thereof with copies of all correspondence and other written material sent or provided to the Company from any third party in connection with any Company Acquisition Proposal or sent or provided by the Company to any third party in connection with any Company Acquisition Proposal and (iii) provide including providing Parent with advance written notice a copy of any scheduled meeting of the Company Board of Directors to discuss a Company Acquisition Proposaldraft agreements and modifications thereof.
(c) Upon the execution of this Agreement, the Company shallwill, and shall will cause its Subsidiaries and its and their respective officers, directors and employees, and shall will use its reasonable best efforts to cause its and their respective Representatives to, immediately cease and terminate any existing activities, discussions existing as of the date of this Agreement or negotiations between the Company or any of its Subsidiaries or any of their respective officers, directors, employees or Representatives and any person (other than Parent) Person that relate to any Company Acquisition Proposal and, and will use reasonable best efforts to obtain the prompt return or destruction of any confidential information previously furnished to such Persons with respect thereto within 12 months prior 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 the Company or to destroy all confidential information of the Company and its Subsidiaries. The Company 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 the Company or any of its Subsidiaries is or may become a party and agrees to use commercially reasonable efforts to enforce the provisions of such agreementsdate hereof.
(d) Except as contemplated by this Section 5.4(dotherwise provided in Sections 6.5(e) or (f), neither the Board of Directors of the Company nor any committee thereof shall Board may not (i) (A) withhold, withdraw, qualify withdraw or modify, or resolve to or publicly propose to withhold, withdrawwithdraw or modify, qualify or modify the Company Recommendation in a manner adverse to Parent, (B) Parent or make any other public statement statement, filing or release, in connection with obtaining the Company Stockholders’ Meeting Stockholder Approval, the Company Special Required Approval or this Agreement or the Transactions otherwise, inconsistent with the Company Recommendation, (Cii) approve, adopt endorse or recommend any Company Acquisition Proposal or (D) fail to reaffirm or re-publish any of the Company Recommendation within five days of being requested by Parent to do so (each such action foregoing set forth in clauses (Ai) through and (D) above being ii), a “Company Change of Recommendation”) ), or (iiiii) approve, adopt or recommend, or publicly propose to approve, adopt or recommend, enter into a merger agreement, letter of intent, written definitive 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 5.4(a)) or any tender offer providing for, with respect to, or in connection with any for a Company Acquisition Proposal. Notwithstanding the foregoing, the Transaction.
(e) The Company Board of Directors of the Company may at any time prior to receipt of the Company Stockholder Approval, Approval and the Company Special Required Approval (i) effect a Company Change of Recommendation in respect of a Company Acquisition Proposal, and/or (iii) make if it elects to do so in connection with or following a Company Change of Recommendation and (ii) Recommendation, terminate this Agreement pursuant to Section 7.1(j8.1(d)(ii) of this Agreementin order to enter into a written definitive agreement providing for a Company Acquisition Transaction, if (and and, subject to Section 6.5(f), only if): (A) a Company Acquisition Proposal is made to the Company by a third party, and such offer is not withdrawn; , (B) the Company’s Company Board of Directors determines in good faith after consultation with its outside legal counsel and a financial advisors advisor that such offer constitutes a Company Superior Offer; , (C) following consultation with outside legal counsel, the Company’s Board of Directors determines that the failure to make a Company Change of Recommendation, or to terminate this Agreement pursuant to Section 7.1(j) of this Agreement, would be reasonably likely to be inconsistent with the exercise of its duties under applicable Laws, (D) the Company Board of Directors has provided to Parent five business days prior written notice of its intent to effect a Company Change of Recommendation (which notice shall include the reasonable details regarding the cause for, and nature of, the Company Change of Recommendation and, if requested by Parent, negotiated in good faith with Parent during such five business day period regarding revisions to this Agreement which would avoid such Company Change of Recommendation; and (E) the Company Board of Directors has provided to Parent advance written notice of such Company Change of Recommendation at least two hours prior thereto. The Board of Directors of the Company may not, in respect of a Company Acquisition Proposal, make a Company Change of Recommendation in a manner adverse to Parent except in compliance in all respects with this Section 5.4(d). For the avoidance of doubt, a change of the Company Recommendation to “neutral” is a Company Change of Recommendation.
(e) Nothing in this Agreement shall prohibit or restrict the Board of Directors of the Company, at any time prior to receipt of the Company Stockholder Approval, in circumstances not involving or relating to a Company Acquisition Proposal, from effecting a Company Change of Recommendation if the Board of Directors of the Company determines in good faith (after consultation with outside legal counsel) that failure to take such action would be reasonably likely to be inconsistent with the exercise by the Board of Directors result in a breach of its fiduciary duties under applicable Laws if Law, (and only if): (AD) the Company Board of Directors has provided to provides Parent five business days Business Days’ prior written notice of its intent intention to take such action (such five-Business Day period, the “Notice Period”), which notice includes the information with respect to such Company Superior Offer that is specified in Section 6.5(b) (it being understood that any material revision or amendment to the terms of such Company Superior Offer will require a new notice and, in such case, all references to five Business Days in this Section 6.5(e) will be deemed to be two Business Days), and (E) at the end of the Notice Period described in clause (D), the Company Board again makes the determination in good faith after consultation with outside legal counsel and a financial advisor that the Company Acquisition Proposal continues to be a Company 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 Law. If requested by Parent, the Company will, and will cause its Representatives to be available to, negotiate with Parent any adjustments or modifications to the terms of this Agreement that, if accepted, would be binding on Parent, during such Notice Period.
(f) Prior to the receipt of the Company Stockholder Approval and the Company Special Required Approval, the Company Board may, if the Company Board determines in good faith, after consultation with its outside legal counsel, that failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Law, effect a Company Change of Recommendation unrelated to a Company Acquisition Proposal (it being understood and agreed that any Company Change of Recommendation proposed to be made in relation to an Acquisition Proposal may only be made pursuant to and in accordance with Section 6.5(e)) in response to an Intervening Event; provided that (i) the Company has provided to Parent at least five Business Days prior written notice that it intends to take such action, which notice shall include must specify the reasonable details regarding the cause forreasons for proposing to take such action, and nature ofinclude a reasonably detailed description of the Intervening Event and (ii) Parent will not, within five Business Days after receipt of such notice from the Company, have made a proposal that, if accepted, would be binding on Parent and that has not been withdrawn, to make such adjustments in the terms and conditions of this Agreement in such manner that would obviate the need for the Company Board to effect such Company Change of Recommendation) and, if . If requested by Parent, negotiated in good faith the Company will, and will cause its Representatives to be available to, negotiate with Parent regarding any proposal by Parent during such five business day Business Day period.
(g) During the period regarding revisions to from the date of this Agreement that would avoid such through the Effective Time, neither the Company Change nor any of Recommendation and (B) its Subsidiaries may terminate, amend, modify or waive any provision of any confidentiality agreement to which it is a party relating to a proposed business combination involving the Company or any standstill agreement to which it is a party unless the Company Board 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 Directors has provided its fiduciary duties under applicable Law; provided, however, that any provision of any such agreement that purports to Parent advance written notice prohibit any third party from requesting a waiver of any standstill restriction to permit such third party to make an Acquisition Proposal is hereby waived. During such period, the Company or its Subsidiaries, as the case may be, will enforce, to the fullest extent permitted under applicable Law, the other 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 Company Change Board determines in good faith, after consultation with outside legal counsel, that taking such action would be reasonably likely to result in a breach of Recommendation at least two hours prior theretoits fiduciary duties under applicable Law.
(f) As used in this Agreement:
Appears in 1 contract
Samples: Transaction Agreement (Dover Downs Gaming & Entertainment Inc)
Non-Solicitation by the Company. (a) The Company agrees that neither it nor any Subsidiary of the Company, 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 permit give permission to 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 of, any Company proposal that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (ii) furnish any nonpublic non-public information regarding the Company or any of its Subsidiaries to, or afford access to the business, properties, books or records of the Company or any of its Subsidiaries to, any person (other than Parent or Merger Sub) ), in connection with or in response to a Company an Acquisition Proposal, (iii) engage or participate in any discussions or negotiations with any person (other than Parent or Merger Sub) with respect to any Company Acquisition Proposal, (iv) approve, endorse or recommend (or publicly propose to approve, endorse or recommend) any Company Acquisition Proposal or Proposal, (v) enter into any letter of intent, term sheet, memorandum of understanding, merger agreement, acquisition agreement, exchange agreement in principle or any other agreement providing for any Company Acquisition Transaction or requiring the Company to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement (except as contemplated by Section 7.1(j7.1(h))) or (vi) resolve, propose or agree to do any of the foregoing; provided, however, that this Section 5.4 5.3 shall not prohibit prohibit: (A) the Company, or a duly constituted and acting committee of the Board of Directors of the CompanyCompany consisting solely of independent directors (the “Special Committee”), directly or indirectly through any officer, employee or Permitted Representative, prior to the receipt of obtaining the Company Stockholder Approval, from furnishing nonpublic information regarding the Company 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 Company unsolicited Acquisition Proposal that the Board of Directors of the Company and the Special Committee, prior to taking any such particular action, concludes in good faith, after consultation with its their financial advisorsadvisors and outside legal counsel (it being understood that, for purposes of this Section 5.3, such a financial advisor or outside legal counsel shall include a financial advisor or outside legal counsel to the Special Committee), constitutes or is reasonably likely to lead to result in a Company Superior Offer if (1) the Board of Directors of the Company concludes and the Special Committee conclude in good faith, after consultation with its their outside legal counsel, that the failure to take such action with respect to such Company Acquisition Proposal would be reasonably likely to be inconsistent with the exercise constitute a breach by the Board of Directors of their its fiduciary duties under applicable Laws, (2) such Company Acquisition Proposal did not result from a breach of this Section 5.4(a) (other than any such breach that is unintentional and immaterial in effect)5.3, (3) the Company gives to Parent the notice required by this Section 5.4(b)5.3, and (4) the Company furnishes any nonpublic non-public information provided to the maker of the Company Acquisition Proposal only pursuant to a confidentiality agreement between the Company and such person on substantially the same terms no less favorable to the Company than as the Confidentiality Agreement (provided it being acknowledged and agreed that such confidentiality agreement shall need not in contain a “standstill” or similar provision that prohibits the third party recipient of such information from making any way restrict the Company from complying with its disclosure obligations under this Agreement, including with respect to such proposal), Acquisition Proposal) and such furnished information is delivered to Parent at substantially the same time (to the extent such non-public information that has not been previously furnished or made available by to Parent is made available to the Company maker of the Acquisition Proposal, provides such non-public information to Parent)Parent substantially concurrent with the time that it is provided to such other person; or (B) the Company from taking and disclosing to its stockholders a position contemplated by Rule complying with Rules 14d-9 and Rule 14e-2(a) 14e-2 promulgated under the Exchange Act with regard to any Company Acquisition Proposal, provided, however, that compliance Proposal (or making any similar communication to stockholders in connection with such rules shall not in any way limit amendment to the terms of a tender offer or modify the effect that exchange offer) so long as any action taken pursuant or statement made to such rules has under so comply is consistent with this Section 5.3; (C) the Company, or the Board of Directors, directly or indirectly through any other provision officer, employee or Representative disclosing factual information regarding the business, financial condition or results of this Agreement and in no event shall operations of the Company or the fact that an Acquisition Proposal has been made, the identity of the party making such proposal or the material terms of such proposal in the Proxy Statement or otherwise, to the extent the Company in good faith determines that such information, facts, identity or terms is required to be disclosed under applicable Law or that failure to make such disclosure is reasonably likely to be inconsistent with its fiduciary duties under applicable Law; or (D) the Company, or the Board of Directors, directly or indirectly through any officer, employee or Representative making any statement or disclosure to the Company’s stockholders required by applicable Law; provided that any such action taken or statement or disclosure made that relates to an Acquisition Proposal shall be deemed to be a Change of Recommendation unless the Board of Directors reaffirms its recommendation in favor of the proposed transaction in such statement or disclosure or in connection with such action (except that a committee thereof take any action that would constitute a Company Change in Recommendation in respect of a Company Acquisition Proposal other than mere “stop, look and listen” disclosure in compliance with Rule 14d-9(f) of the 1934 Act shall not constitute a Change of Recommendation). So long as the Company and its Representatives have otherwise complied with this Section 5.4(d)5.3, none of the foregoing shall prohibit the Special Committee and its Permitted Representatives from contacting in writing any persons or group of persons who has made an Acquisition Proposal after the date of this Agreement solely to request the clarification of the terms and conditions thereof so as to determine whether the Acquisition Proposal is, or could reasonably be expected to lead to, a Superior Offer, and any such actions shall not be a breach of this Section 5.3.
(b) The Company shall promptly, and in no event later than 24 twenty-four (24) hours after its or any of its Representatives’ receipt of any Company Acquisition Proposal, Proposal or any request for nonpublic non-public information relating to the Company or any of its Subsidiaries in connection with a Company an Acquisition Proposal, advise Parent orally and in writing of such Company Acquisition Proposal or request, request (including providing the identity of the person making or submitting such Company Acquisition Proposal or request, and, (x) if it is in writing, a copy of such Company Acquisition Proposal and any related draft agreements and (y) if oral, a reasonably detailed summary of any such Company Acquisition Proposal or request thereof that is made or submitted by any person during the period between the date hereof and the Closing). The Company shall (i) keep Parent informed in all material respects on a prompt basis with respect to any change to the status or material terms of any such Company Acquisition Proposal (and in no event later than 24 twenty-four (24) hours following any such change), (ii) . The Company agrees that it shall promptly provide to Parent as soon as practicable after receipt any non-public information concerning itself or delivery thereof with copies of all correspondence and other written material sent or its Subsidiaries provided to the Company from any third party other person in connection with any Company Acquisition Proposal or sent or which was not previously provided by the Company to any third party in connection with any Company Acquisition Proposal and (iii) provide Parent with advance written notice of any scheduled meeting of the Company Board of Directors to discuss a Company Acquisition ProposalParent.
(c) Upon Immediately following the execution of this Agreement, (i) the Company 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 as of the date of this Agreement between the Company or any of its Subsidiaries or any of their respective officers, directors, employees or Representatives and any person (other than Parent) ), including Energy Transfer, that relate to any Company Acquisition Proposal andProposal, 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 and (ii) the Company shall, and shall use its reasonable best efforts to cause its Representatives to, cause to be returned or to destroy destroyed all confidential information provided by or on behalf of the Company and its Subsidiaries. The Company 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 the Company or any of its Subsidiaries is or may become a party and agrees Subsidiary to use commercially reasonable efforts to enforce the provisions of such agreementsperson.
(d) Except as contemplated by this otherwise provided in Section 5.4(d5.3(e), neither the Board of Directors of the Company nor any committee thereof shall may (i) (A) withhold, withdraw, qualify withdraw or modify, or resolve to or publicly propose to withhold, withdrawwithdraw or modify, qualify or modify the Company Recommendation in a manner adverse to Parent, or (Bii) make any other public statement in connection with the Company Stockholders’ Meeting or this Agreement or the Transactions inconsistent with the Company Recommendation, (C) approverecommend, adopt or recommend approve, or propose publicly to recommend, adopt or approve, any Company Acquisition Proposal or (D) fail to reaffirm or re-publish the Company Recommendation within five days of being requested by Parent to do so (each such any action set forth described in clauses (A) through (D) above being this Section 5.3(d), a “Company Change of Recommendation”).
(e) Notwithstanding anything in this Agreement to the contrary, with respect to (i) an Intervening Event or (ii) approve, adopt or recommend, or publicly propose to approve, adopt or recommend, a 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 5.4(a)) or any tender offer providing for, with respect to, or in connection with any Company an Acquisition Proposal. Notwithstanding the foregoing, the Board of Directors of the Company may at any time prior to receipt of the Company Stockholder Approval, in respect of a Company Acquisition Proposal, (i) make a Company Change of Recommendation and (ii) and/or terminate this Agreement pursuant to Section 7.1(j) of this Agreement7.1(h), if (and only if): (A) a Company in the case of (ii) above, (x) an Acquisition Proposal (that did not result from a breach of Section 5.3(a)) is made to the Company by a third party, and such offer Acquisition Proposal is not withdrawn; (By) the Company’s Board of Directors determines and the Special Committee determine in good faith after consultation with its their financial advisors and outside legal counsel that such offer Acquisition Proposal constitutes a Company Superior Offer; and (Cz) the Company’s Board of Directors and the Special Committee determine to terminate this Agreement pursuant to Section 7.1(h), (B) in the case of (i) above, following consultation with outside legal counsel, the Company’s Board of Directors determines and the Special Committee determine that the failure to make a Company Change of Recommendation, or to terminate this Agreement pursuant to Section 7.1(j) of this Agreement, Recommendation would be reasonably likely to be inconsistent with constitute a breach by the exercise Board of Directors of its fiduciary duties under applicable Laws; (C) in the case of (i) and (ii) above, (Dx) the Company Board of Directors has provided to provides Parent five business days ninety-six (96) hours’ prior written notice of its intent intention to effect a Company Change of Recommendation (take such action, which notice shall include the reasonable details regarding information with respect to such Intervening Event or Superior Offer, as the cause forcase may be, that is specified in Section 5.3(b), (y) after providing such notice and nature ofprior to making such Change of Recommendation in connection with an Intervening Event or a Superior Offer or taking any action pursuant to Section 7.1(h) with respect to a Superior Offer, the Company Change of Recommendation and, if requested by Parent, negotiated shall negotiate in good faith with Parent during such five business day ninety-six (96) hour period regarding (to the extent that Parent desires to negotiate) to make such revisions to the terms of this Agreement which as would avoid such Company Change of Recommendation; and (E) the Company Board of Directors has provided to Parent advance written notice of such Company Change of Recommendation at least two hours prior thereto. The Board of Directors of the Company may not, in respect of a Company Acquisition Proposal, make a Company Change of Recommendation in a manner adverse to Parent except in compliance in all respects with this Section 5.4(d). For the avoidance of doubt, a change of the Company Recommendation to “neutral” is a Company Change of Recommendation.
(e) Nothing in this Agreement shall prohibit or restrict the Board of Directors of the Company, at any time prior to receipt of the Company Stockholder Approval, in circumstances not involving or relating to a Company Acquisition Proposal, from effecting a Company Change of Recommendation if permit the Board of Directors of the Company determines and the Special Committee not to effect a Change of Recommendation in good faith (after consultation connection with outside legal counsel) that failure an Intervening Event or a Superior Offer or to take such action would be reasonably likely pursuant to be inconsistent with the exercise by Section 7.1(h) in response to a Superior Offer, and (z) the Board of Directors of its duties under applicable Laws if (and only if): (A) the Company Board and the Special Committee shall have considered in good faith any changes to this Agreement offered in writing by Parent and shall have determined in good faith, after consultation with their outside legal counsel and financial advisors, that the event continues to constitute an Intervening Event or that the Superior Offer would continue to constitute a Superior Offer, in each case if such changes offered in writing by Parent were to be given effect; provided that, for the avoidance of Directors has provided to Parent five business days prior written notice of its intent to doubt, the Company shall not effect a Company Change of Recommendation in connection with an Intervening Event or a Superior Offer or take any action pursuant to Section 7.1(h) with respect to a Superior Offer prior to the time that is ninety-six (which 96) hours after it has provided the written notice shall include required by clause (x) above; provided further, that in the reasonable details regarding event that the cause for, and nature ofAcquisition Proposal is thereafter modified by the party making such Acquisition Proposal, the Company Change of Recommendation) and, if requested by Parent, negotiated in good faith with Parent during such five business day period regarding revisions to this Agreement that would avoid such Company Change of Recommendation and (B) the Company Board of Directors has provided to Parent advance shall provide written notice of such modified Acquisition Proposal and shall again comply with this Section 5.3(e), except that the Company’s advance written notice obligation shall be reduced to seventy-two (72) hours (rather than the ninety-six (96) hours otherwise contemplated by this Section 5.3(e)) and the time the Company shall be permitted to effect a Change of Recommendation at least in connection with a Superior Offer or to take action pursuant to Section 7.1(h) with respect to a Superior Offer shall be reduced to the time that is seventy-two (72) hours after it has provided such written notice (rather than the time that is the ninety-six (96) hours otherwise contemplated by this Section 5.3(e)) (but in no event prior theretoto the original ninety-six (96) hour advance notice period).
(f) As used in this Agreement:
Appears in 1 contract
Non-Solicitation by the Company. (a) The Company agrees that neither it nor any Subsidiary of the Company, 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 permit give permission to 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 proposal that constitutes, or would reasonably be expected to lead to, a Company Acquisition Proposal, (ii) furnish any nonpublic non-public information regarding the Company or any of its Subsidiaries to, or afford access to the properties, books and records of the Company to, any person (other than Parent or Merger Sub) ), in connection with or in response to a Company Acquisition Proposal, (iii) engage or participate in any discussions or negotiations with any person (other than Parent or Merger Sub) with respect to any Company Acquisition Proposal, (iv) approve, endorse or recommend any Company Acquisition Proposal or (v) enter into any letter of intent, memorandum of understanding, merger agreement, acquisition agreement in principle or any other agreement providing for any Company Acquisition Transaction (except as contemplated by where the Company has validly terminated this Agreement pursuant to Section 7.1(j7.1(k)); provided, however, that this Section 5.4 shall not prohibit (A) the Company, or the Board of Directors of the Company, directly or indirectly through any officer, employee or Representative, prior to the receipt of obtaining the Company Stockholder Approval, from furnishing nonpublic information regarding the Company 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 Company Acquisition Proposal that the Board of Directors of the Company concludes in good faith, after consultation with its financial advisors, constitutes or is reasonably likely expected to lead to result in a Company Superior Offer if (1) the Board of Directors of the Company concludes in good faith, after consultation with its outside legal counsel, that the failure to take such action with respect to such Company Acquisition Proposal would be reasonably likely to be inconsistent with the exercise by the Board of Directors of their its fiduciary duties under applicable Laws, (2) such Company Acquisition Proposal did not result from a breach of this Section 5.4(a) (other than any such breach that is unintentional and immaterial in effect), (3) the Company gives to Parent the notice required by Section 5.4(b), and (4) the Company furnishes any nonpublic non-public information provided to, and affords access to the properties, books and records of the Company to, the maker of the Company Acquisition Proposal only pursuant to a confidentiality agreement between the Company and such person on substantially the same terms no less favorable to the Company than the Confidentiality Agreement (provided that such confidentiality agreement shall not in any way restrict the Company from complying with its disclosure obligations under this Agreement, including with respect to such proposal), confidentiality and such furnished information is delivered to Parent at substantially use of “Evaluation Material” (as defined in the same time (to Confidentiality Agreement) as the extent such information has not been previously furnished or made available by the Company to Parent)Confidentiality Agreement; or (B) the Company from taking and disclosing to its stockholders a position contemplated by Rule complying with Rules 14d-9 and Rule 14e-2(a) 14e-2 promulgated under the Exchange Act with regard to any Company Acquisition 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 rules has under any other provision of this Agreement and in no event shall the Company or the Company Board of Directors or a committee thereof take any action that would constitute a Company Change in Recommendation in respect of a Company Acquisition Proposal other than in compliance with Section 5.4(d)Agreement.
(b) The Company shall promptly, and in no event later than 24 twenty-four (24) hours after its receipt of any Company Acquisition Proposal, or any request for nonpublic information relating to the Company or any of its Subsidiaries in connection with a Company Acquisition Proposal, advise Parent orally and in writing of such Company Acquisition Proposal or request, request (including providing the identity of the person making or submitting such Company Acquisition Proposal or request, and, (x) if it is in writing, a an unredacted copy of such Company Acquisition Proposal and any related draft agreements and (y) if oral, a reasonably detailed summary of any such Company Acquisition Proposal or request thereof that is made or submitted by any person during the period between the date hereof and the Closing). The Company shall (i) keep Parent informed in all material respects on a prompt basis with respect to any change to the status or material terms of any such Company Acquisition Proposal (and in no event later than 24 twenty-four (24) hours following any such change), (ii) . The Company agrees that it shall promptly provide to Parent as soon as practicable after receipt any information concerning itself or delivery thereof with copies of all correspondence and other written material sent or its Subsidiaries provided to the Company from any third party other person in connection with any Company Acquisition Proposal which was not previously provided (or sent or provided by the Company made available) to any third party in connection with any Company Acquisition Proposal and (iii) provide Parent with advance written notice of any scheduled meeting of the Company Board of Directors to discuss a Company Acquisition ProposalParent.
(c) Upon Immediately following the execution of this Agreement, the Company 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 as of the date of this Agreement between the Company or any of its Subsidiaries or any of their respective officers, directors, employees or Representatives and any person (other than Parent) that relate to any Company Acquisition Proposal andProposal. In addition, 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 the Company shall (i) promptly (and in any event within 24 hours) request the prompt return or to destroy destruction of all confidential information of the Company previously furnished to any such person or its Representatives and its Subsidiaries. The Company 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 the Company or any of its Subsidiaries is or may become a party and agrees to use commercially reasonable best efforts to enforce obtain the provisions return or the destruction of such agreementsconfidential information and (iii) immediately terminate all physical and electronic data room access previously granted to any such person or its Representatives.
(d) Except as contemplated by this otherwise provided in Section 5.4(d5.4(e) or Section 5.4(f), neither the Board of Directors of the Company nor any committee thereof shall may (i) (A) withhold, withdraw, qualify withdraw or modify, or resolve to or publicly propose to withhold, withdrawwithdraw or modify, qualify or modify the Company Recommendation in a manner adverse to Parent, Parent or (Bii) make any other public statement in connection with the Company Stockholders’ Meeting or this Agreement or the Transactions inconsistent with the Company Recommendation, (C) approverecommend, adopt or recommend approve, or propose publicly to recommend, adopt or approve, any Company Acquisition Proposal or (D) fail to reaffirm or re-publish the Company Recommendation within five days of being requested by Parent to do so (each such any action set forth described in clauses (A) through (D) above being this Section 5.4(d), a “Company Change of Recommendation”).
(e) or (ii) approve, adopt or recommend, or publicly propose Notwithstanding anything in this Agreement to approve, adopt or recommend, a 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 5.4(a)) or any tender offer providing forcontrary, with respect to, or in connection with any to a Company Acquisition Proposal. Notwithstanding the foregoing, the Board of Directors of the Company may at any time prior to receipt of the Company Stockholder Approval, in respect of a Company Acquisition Proposal, (i) make a Company Change of Recommendation and (ii) or terminate this Agreement pursuant to Section 7.1(j) of this Agreement7.1(k), if (and only if): (Ai) a written Company Acquisition Proposal (that did not result from a breach of Section 5.4(a)) is made to the Company by a third party, and such offer Company Acquisition Proposal is not withdrawn; (Bii) the Company’s Board of Directors determines in good faith after consultation with its financial advisors that such offer Company Acquisition Proposal constitutes a Company Superior Offer; (Ciii) following consultation with outside legal counsel, the Company’s Board of Directors determines that the failure to make a Company Change of Recommendation, Recommendation or to terminate this Agreement pursuant to Section 7.1(j) of this Agreement7.1(k), would be reasonably likely to be inconsistent with the exercise of its fiduciary duties under applicable Laws, ; (Div) the Company Board of Directors has provided to provides Parent five (5) business days days’ prior written notice of its intent intention to effect a Company Change of Recommendation (take such action, which notice shall include all of the reasonable details regarding the cause for, and nature ofinformation with respect to such Company Superior Offer that is specified in Section 5.4(b); (v) during such five (5) day notice period, the Company Change of Recommendation and, if requested by Parent, negotiated and its Representatives negotiate with Parent in good faith with (to the extent Parent during such five business day period regarding revisions desires to so negotiate) to make adjustments in the terms and conditions of this Agreement which would avoid so that such Company Change Superior Offer ceases to constitute (in the good faith judgment of Recommendation; and (E) the Company Board of Directors has provided to Parent advance written notice of such Company Change of Recommendation at least two hours prior thereto. The Board of Directors of the Company may notafter consultation with the Company’s financial advisors and outside legal counsel) a Company Superior Offer relative to such adjusted terms and conditions; and (vi) at the end of the five (5) business day period described in clause (iv), the Board of Directors of the Company again makes the determination in good faith after consultation with its outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed by Parent) that the Company Acquisition Proposal continues to be a Company Superior Offer and that failure to make the Company Change of Recommendation or terminate this Agreement pursuant to Section 7.1(k) would be reasonably likely to be inconsistent with the exercise of its fiduciary duties under applicable Laws. If during the aforementioned five (5) day notice period, any material revisions are made to the Company Superior Offer (it being agreed and understood that any change in the amount or form of consideration included in the Company Superior Offer shall be deemed to be a “material revision”), the Company shall deliver a new written notice, which notice shall include the information with respect to the revised Company Superior Offer that is specified in Section 5.4 to Parent within 24 hours thereof, and such notice period shall commence anew (except that such new notice period shall be three (3) days) and the Company shall comply with the requirements of this Section 5.4(e) with respect to such new written notice. Notwithstanding anything to the contrary contained herein, neither the Company nor any Subsidiary of the Company shall enter into any agreement in respect of a Company Acquisition Proposal, make Transaction (other than a Company Change of Recommendation confidentiality agreement as contemplated herein) unless this Agreement has been terminated in a manner adverse to Parent except in compliance in all respects accordance with this Section 5.4(d). For the avoidance of doubt, a change of the Company Recommendation to “neutral” is a Company Change of Recommendationits terms.
(ef) Nothing in this Agreement shall prohibit or restrict the Board of Directors of the Company, at any time prior to receipt of the Company Stockholder Approval, in circumstances not involving or relating to a Company Acquisition Proposal, from effecting a Company Change of Recommendation if (i) in response to (A) a material development or change in circumstances occurring or arising after the date hereof that was neither known to the Board of Directors of the Company nor reasonably foreseeable at the date of this Agreement (and which change or development does not relate to a Company Acquisition Proposal), or (B) Parent or any of its Significant Subsidiaries commencing (or there having been commenced against Parent or any of its Significant Subsidiaries (an “An Involuntary Parent Filing Event”), and, in such case, the involuntary claim, action or proceeding has not been dismissed within forty (40) days) any claim, action or proceeding under any 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 receiver, trustee, custodian, conservator, or other similar official for it or for all or any substantial part of its assets, or any of Parent or any of its Significant Subsidiaries making a general assignment for the benefit of its creditors, the Board of Directors of the Company determines in good faith (after consultation with outside legal counsel) that failure to take such action effect a Company Change of Recommendation would be reasonably likely to be inconsistent with the exercise by the Board of Directors of its fiduciary duties under applicable Laws if Laws, (and only if): (Aii) the Company Board of Directors has provided to notified Parent in writing, at least five (5) business days prior written notice of its intent to effect a Company Change of Recommendation (which notice shall include the reasonable details regarding the cause for, and nature of, the Company Change of Recommendation) and, if requested by Parent, negotiated in good faith with Parent during such five business day period regarding revisions to this Agreement that would avoid such Company Change of Recommendation and (B) the Company Board of Directors has provided to Parent advance written notice of such Company Change of Recommendation Recommendation, that it is considering taking such action and specifying in reasonable detail the reasons therefor and (iii) during such five (5) business day period, the Company has considered and, at least two hours prior theretothe reasonable request of Parent, engaged in discussions with Parent regarding, any adjustments proposed in writing by Parent in the terms and conditions of this Agreement, should Parent propose any such adjustments.
(fg) As used in this Agreement:
Appears in 1 contract
Samples: Merger Agreement (KLX Energy Services Holdings, Inc.)
Non-Solicitation by the Company. (a) The Company agrees that neither it nor any Subsidiary of the Company, 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 permit give permission to 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 of, any Company proposal that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (ii) furnish any nonpublic non-public information regarding the Company or any of its Subsidiaries to, or afford access to the business, properties, books or records of the Company or any of its Subsidiaries to, any person (other than Parent or Merger Sub) ), in connection with or in response to a Company an Acquisition Proposal, (iii) engage or participate in any discussions or negotiations with any person (other than Parent or Merger Sub) with respect to any Company Acquisition Proposal, (iv) approve, endorse or recommend (or publicly propose to approve, endorse or recommend) any Company Acquisition Proposal or Proposal, (v) enter into any letter of intent, term sheet, memorandum of understanding, merger agreement, acquisition agreement, exchange agreement in principle or any other agreement providing for any Company Acquisition Transaction or requiring the Company to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement (except as contemplated by Section 7.1(j7.1(h))) or (vi) resolve, propose or agree to do any of the foregoing; provided, however, that this Section 5.4 shall not prohibit (A) the Company, or the Board of Directors of the Company, directly or indirectly through any officer, employee or Representative, prior to the receipt of obtaining the Company Stockholder Approval, from furnishing nonpublic information regarding the Company 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 Company unsolicited Acquisition Proposal that the Board of Directors of the Company Company, prior to taking any such particular action, concludes in good faith, after consultation with its financial advisorsadvisors and outside legal counsel (it being understood that, for purposes of this Section 5.4, such a financial advisor or outside legal counsel shall include a financial advisor or outside legal counsel to a duly constituted and acting committee of the Board of Directors of the Company), constitutes or is reasonably likely to lead to result in a Company Superior Offer if (1) the Board of Directors of the Company concludes in good faith, after consultation with its outside legal counsel, that the failure to take such action with respect to such Company Acquisition Proposal would be reasonably likely to be inconsistent with the exercise constitute a breach by the Board of Directors of their its fiduciary duties under applicable Laws, (2) such Company Acquisition Proposal did not result from a breach of this Section 5.4(a) (other than any such breach that is unintentional and immaterial in effect)5.4, (3) the Company gives to Parent the notice required by Section 5.4(b)5.4, and (4) the Company furnishes any nonpublic non-public information provided to the maker of the Company Acquisition Proposal only pursuant to a confidentiality agreement between the Company and such person on substantially the same terms no less favorable to the Company than as the Confidentiality Agreement (provided it being acknowledged and agreed that such confidentiality agreement shall need not in contain a “standstill” or similar provision that prohibits the third party recipient of such information from making any way restrict the Company from complying with its disclosure obligations under this Agreement, including with respect to such proposal), Acquisition Proposal) and such furnished information is delivered to Parent at substantially the same time (to the extent such non-public information that has not been previously furnished or made available by to Parent is made available to the Company maker of the Acquisition Proposal, provide such non-public information to Parent)Parent substantially concurrent with the time that it is provided to such other person; or (B) the Company from taking and disclosing to its stockholders a position contemplated by Rule complying with Rules 14d-9 and Rule 14e-2(a) 14e-2 promulgated under the Exchange Act with regard to any Company Acquisition Proposal, provided, however, that compliance Proposal (or making any similar communication to stockholders in connection with such rules shall not in any way limit amendment to the terms of a tender offer or modify the effect that exchange offer) so long as any action taken pursuant or statement made to such rules has under so comply is consistent with this Section 5.4; (C) the Company, or the Board of Directors, directly or indirectly through any other provision officer, employee or Representative disclosing factual information regarding the business, financial condition or results of this Agreement and in no event shall operations of the Company or the fact that an Acquisition Proposal has been made, the identity of the party making such proposal or the material terms of such proposal in the Proxy Statement or otherwise, to the extent the Company in good faith determines that such information, facts, identity or terms is required to be disclosed under applicable Law or that failure to make such disclosure is reasonably likely to be inconsistent with its fiduciary duties under applicable Law; or (D) the Company, or the Board of Directors, directly or indirectly through any officer, employee or Representative making any statement or disclosure to the Company’s stockholders required by applicable Law; provided that any such action taken or statement or disclosure made that relates to an Acquisition Proposal shall be deemed to be a Change of Recommendation unless the Board of Directors reaffirms its recommendation in favor of the proposed transaction in such statement or disclosure or in connection with such action (except that a committee thereof take any action that would constitute a Company Change in Recommendation in respect of a Company Acquisition Proposal other than mere “stop, look and listen” disclosure in compliance with Rule 14d-9(f) of the 1934 Act shall not constitute a Change of Recommendation). So long as the Company and its Representatives have otherwise complied with this Section 5.4(d)5.4, none of the foregoing shall prohibit the Company and its Representatives from contacting in writing any persons or group of persons who has made an Acquisition Proposal after the date of this Agreement solely to request the clarification of the terms and conditions thereof so as to determine whether the Acquisition Proposal is, or could reasonably be expected to lead to, a Superior Offer, and any such actions shall not be a breach of this Section 5.4.
(b) The Company shall promptly, and in no event later than 24 twenty-four (24) hours after its or any of its Representatives’ receipt of any Company Acquisition Proposal, Proposal or any request for nonpublic non-public information relating to the Company or any of its Subsidiaries in connection with a Company an Acquisition Proposal, advise Parent orally and in writing of such Company Acquisition Proposal or request, request (including providing the identity of the person making or submitting such Company Acquisition Proposal or request, and, (x) if it is in writing, a copy of such Company Acquisition Proposal and any related draft agreements and (y) if oral, a reasonably detailed summary of any such Company Acquisition Proposal or request thereof that is made or submitted by any person during the period between the date hereof and the Closing). The Company shall (i) keep Parent informed in all material respects on a prompt basis with respect to any change to the status or material terms of any such Company Acquisition Proposal (and in no event later than 24 twenty-four (24) hours following any such change), (ii) . The Company agrees that it shall promptly provide to Parent as soon as practicable after receipt any non-public information concerning itself or delivery thereof with copies of all correspondence and other written material sent or its Subsidiaries provided to the Company from any third party other person in connection with any Company Acquisition Proposal or sent or which was not previously provided by the Company to any third party in connection with any Company Acquisition Proposal and (iii) provide Parent with advance written notice of any scheduled meeting of the Company Board of Directors to discuss a Company Acquisition ProposalParent.
(c) Upon Immediately following the execution of this Agreement, (i) the Company 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 as of the date of this Agreement between the Company or any of its Subsidiaries or any of their respective officers, directors, employees or Representatives and any person (other than Parent) that relate to any Company Acquisition Proposal andProposal, 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 and (ii) the Company shall, and shall use its reasonable best efforts to cause its Representatives to, cause to be returned or to destroy destroyed all confidential information provided by or on behalf of the Company and its Subsidiaries. The Company 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 the Company or any of its Subsidiaries is or may become a party and agrees Subsidiary to use commercially reasonable efforts to enforce the provisions of such agreementsperson.
(d) Except as contemplated by this otherwise provided in Section 5.4(d5.4(e), neither the Board of Directors of the Company nor any committee thereof shall may (i) (A) withhold, withdraw, qualify withdraw or modify, or resolve to or publicly propose to withhold, withdrawwithdraw or modify, qualify or modify the Company Recommendation in a manner adverse to Parent, or (Bii) make any other public statement in connection with the Company Stockholders’ Meeting or this Agreement or the Transactions inconsistent with the Company Recommendation, (C) approverecommend, adopt or recommend approve, or propose publicly to recommend, adopt or approve, any Company Acquisition Proposal or (D) fail to reaffirm or re-publish the Company Recommendation within five days of being requested by Parent to do so (each such any action set forth described in clauses (A) through (D) above being this Section 5.4(d), a “Company Change of Recommendation”).
(e) Notwithstanding anything in this Agreement to the contrary, with respect to (i) an Intervening Event or (ii) approve, adopt or recommend, or publicly propose to approve, adopt or recommend, a 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 5.4(a)) or any tender offer providing for, with respect to, or in connection with any Company an Acquisition Proposal. Notwithstanding the foregoing, the Board of Directors of the Company may at any time prior to receipt of the Company Stockholder Approval, in respect of a Company Acquisition Proposal, (i) make a Company Change of Recommendation and (ii) and/or terminate this Agreement pursuant to Section 7.1(j) of this Agreement7.1(h), if (and only if): (A) a Company in the case of (ii) above, (x) an Acquisition Proposal (that did not result from a breach of Section 5.4(a)) is made to the Company by a third party, and such offer Acquisition Proposal is not withdrawn; (By) the Company’s Board of Directors determines in good faith after consultation with its financial advisors and outside legal counsel that such offer Acquisition Proposal constitutes a Company Superior Offer; and (Cz) the Company’s Board of Directors determines to terminate this Agreement pursuant to Section 7.1(h), (B) in the case of (i) above, following consultation with outside legal counsel, the Company’s Board of Directors determines that the failure to make a Company Change of Recommendation, or to terminate this Agreement pursuant to Section 7.1(j) of this Agreement, Recommendation would be reasonably likely to be inconsistent with constitute a breach by the exercise Board of Directors of its fiduciary duties under applicable Laws; (C) in the case of (i) and (ii) above, (Dx) the Company Board of Directors has provided to provides Parent five business days ninety-six (96) hour’s prior written notice of its intent intention to effect a Company Change of Recommendation (take such action, which notice shall include the reasonable details regarding information with respect to such Intervening Event or Superior Offer, as the cause forcase may be, that is specified in Section 5.4(b), (y) after providing such notice and nature ofprior to making such Change of Recommendation in connection with an Intervening Event or a Superior Offer or taking any action pursuant to Section 7.1(h) with respect to a Superior Offer, the Company Change of Recommendation and, if requested by Parent, negotiated shall negotiate in good faith with Parent during such five business day ninety-six (96) hour period regarding (to the extent that Parent desires to negotiate) to make such revisions to the terms of this Agreement which as would avoid such Company Change of Recommendation; and (E) the Company Board of Directors has provided to Parent advance written notice of such Company Change of Recommendation at least two hours prior thereto. The Board of Directors of the Company may not, in respect of a Company Acquisition Proposal, make a Company Change of Recommendation in a manner adverse to Parent except in compliance in all respects with this Section 5.4(d). For the avoidance of doubt, a change of the Company Recommendation to “neutral” is a Company Change of Recommendation.
(e) Nothing in this Agreement shall prohibit or restrict the Board of Directors of the Company, at any time prior to receipt of the Company Stockholder Approval, in circumstances not involving or relating to a Company Acquisition Proposal, from effecting a Company Change of Recommendation if permit the Board of Directors of the Company determines not to effect a Change of Recommendation in good faith (after consultation connection with outside legal counsel) that failure an Intervening Event or a Superior Offer or to take such action would be reasonably likely pursuant to be inconsistent with the exercise by Section 7.1(h) in response to a Superior Offer, and (z) the Board of Directors of its duties under applicable Laws if (and only if): (A) the Company Board shall have considered in good faith any changes to this Agreement offered in writing by Parent and shall have determined in good faith, after consultation with its outside legal counsel and financial advisors, that the event continues to constitute an Intervening Event or that the Superior Offer would continue to constitute a Superior Proposal, in each case if such changes offered in writing by Parent were to be given effect; provided that, for the avoidance of Directors has provided to Parent five business days prior written notice of its intent to doubt, the Company shall not effect a Company Change of Recommendation in connection with an Intervening Event or a Superior Offer or take any action pursuant to Section 7.1(h) with respect to a Superior Offer prior to the time that is ninety-six (which 96) hours after it has provided the written notice shall include required by clause (x) above; provided further, that in the reasonable details regarding event that the cause for, and nature ofAcquisition Proposal is thereafter modified by the party making such Acquisition Proposal, the Company Change of Recommendation) and, if requested by Parent, negotiated in good faith with Parent during such five business day period regarding revisions to this Agreement that would avoid such Company Change of Recommendation and (B) the Company Board of Directors has provided to Parent advance shall provide written notice of such modified Acquisition Proposal and shall again comply with this Section 5.4(e), except that the Company’s advance written notice obligation shall be reduced to seventy-two (72) hours (rather than the ninety-six (96) hours otherwise contemplated by this Section 5.4(e)) and the time the Company shall be permitted to effect a Change of Recommendation at least in connection with a Superior Offer or to take action pursuant to Section 7.1(h) with respect to a Superior Offer shall be reduced to the time that is seventy-two (72) hours after it has provided such written notice (rather than the time that is the ninety-six (96) hours otherwise contemplated by this Section 5.4(e)) (but in no event prior theretoto the original ninety-six (96) hour advance notice period).
(f) As used in this Agreement:
Appears in 1 contract
Non-Solicitation by the Company. (a) The Company agrees that neither it nor any Subsidiary Except as permitted by this Section 5.4, from the date hereof and prior to the earlier of the CompanyEffective Time and the Termination Date, nor any of the Company shall not, and the Company shall cause its Subsidiaries and its and their respective directors, officers, directors or employees, shall, employees and that it shall use its reasonable best efforts to cause its and their respective Representatives not to (and shall not authorize or permit its and their respective Representatives to), directly or indirectly: (i) solicit, initiate, seek or knowingly encourage (including by way of furnishing information) encourage, induce or knowingly take any other action designed to facilitate any inquiries regarding or the making, making or submission or announcement of any Company proposal that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (ii) furnish any nonpublic non-public information regarding the Company or any of its Subsidiaries or afford access to the business, properties, books or records of the Company or any of its Subsidiaries, to any person (other than Parent any ETP Party, HHI, Merger Sub or Merger Subtheir respective directors, officers, employees, affiliates or Representatives) in connection with or in response to a Company an Acquisition Proposal or any inquiries regarding an Acquisition Proposal, (iii) engage or participate in any discussions or negotiations with any a person (other than Parent any ETP Party, HHI, Merger Sub or Merger Subtheir respective directors, officers, employees, affiliates or Representatives) with respect to any Company an Acquisition Proposal, (iv) approve, endorse or recommend (or publicly propose to approve, endorse or recommend) any Company Acquisition Proposal or Proposal, (v) enter into any letter of intent, term sheet, memorandum of understanding, merger agreement, acquisition agreement, exchange agreement in principle or any other agreement providing for any Company Acquisition Transaction (except as or requiring the Company to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by Section 7.1(j)); providedthis Agreement, however, that this Section 5.4 shall not prohibit (Avi) the Company, or the Board of Directors of the Company, directly or indirectly through any officer, employee or Representative, prior to the receipt of the Company Stockholder Approval, from furnishing nonpublic information regarding the Company 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 Company Acquisition Proposal that the Board of Directors of the Company concludes in good faith, after consultation with its financial advisors, constitutes or is reasonably likely to lead to a Company Superior Offer if (1) unless the Board of Directors of the Company concludes in good faith, after consultation with its outside legal counsel, that the failure to take such action would reasonably be expected to constitute a breach of its fiduciary duties under applicable Law, (x) amend or grant any waiver, release or modification under, or fail to enforce, any standstill or similar agreement with respect to such any class of equity securities of the Company or any of its Subsidiaries or (y) take any action to make the provisions of Section 203 of the DGCL inapplicable to any Acquisition Proposal would be reasonably likely or Acquisition Transaction or (vii) resolve or agree to be inconsistent with do any of the exercise by foregoing. Notwithstanding the first sentence of this Section 5.4(a), prior to obtaining the Company Stockholder Approval, the Company, or the Board of Directors of their duties under applicable Lawsthe Company, directly or indirectly through any officer, employee or Representative, may (2x) furnish non-public information regarding the Company or any of its Subsidiaries to, and afford access to the business, properties, books or records of the Company and any of its Subsidiaries to, any person and (y) engage and participate in discussions and negotiations with any person, in each case in response to an unsolicited, written and bona fide Acquisition Proposal if the Board of Directors of the Company, prior to taking any such particular action, concludes in good faith, after consultation with its financial advisors and outside legal counsel, that such Acquisition Proposal constitutes or could reasonably be expected to result in a Superior Offer if (1) such Company Acquisition Proposal was received after the date of this Agreement and did not result from a breach of this Section 5.4(a) (other than any such breach that is unintentional and immaterial in effect)5.4, (32) the Company gives provides to Parent ETP the notice required by Section 5.4(b)) with respect to such Acquisition Proposal, and (43) the Company furnishes any nonpublic non-public information provided to the maker of the Company Acquisition Proposal only pursuant to a confidentiality agreement between the Company and such person on terms no with provisions that are not less favorable restrictive to the Company such person than the provisions of the Confidentiality Agreement (provided that such confidentiality agreement shall not in any way restrict the Company from complying with its disclosure obligations under this Agreement, including with respect to such proposal), and such furnished information is delivered to Parent at substantially the same time (to the extent such non-public information that has not been previously furnished or made available by to ETP is made available to the Company to Parent); or (B) maker of the Company from taking and disclosing to its stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act with regard to any Company Acquisition Proposal, provided, however, provide or make available such non-public information to ETP substantially concurrent with the time that compliance with such rules shall not in any way limit or modify the effect that any action taken pursuant it is provided to such rules has under other person. Nothing in this Section 5.4 shall prohibit the Company, or the Board of Directors of the Company, directly or indirectly through any other provision of officer, employee or Representative, from (1) informing any person that the Company is party to this Agreement and informing such person of the restrictions that are set forth in no event shall Section 5.4, or (2) disclosing factual information regarding the business, financial condition or results of operations of the Company or the fact that an Acquisition Proposal has been made, the identity of the party making such proposal or the material terms of such proposal in the Proxy Statement/Prospectus or otherwise; provided that, in the case of this clause (2), (x) the Company Board of Directors shall in good faith determine, after consultation with its outside legal counsel, that such information, facts, identity or a committee thereof take any action terms is required to be disclosed under applicable Law or that would failure to make such disclosure is reasonably likely to constitute a breach of its fiduciary duties under applicable Law, and (y) the Company Change complies with the obligations set forth in Recommendation the proviso in respect Section 5.4(h). So long as the Company and its Representatives have otherwise complied with this Section 5.4, none of a the foregoing shall prohibit the Company and its Representatives from contacting any persons or group of persons who has made an Acquisition Proposal other than in compliance with after the date of this Agreement solely to request the clarification of the terms and conditions thereof so as to determine whether the Acquisition Proposal is, or could reasonably be expected to result in, a Superior Offer, and any such actions shall not be a breach of this Section 5.4(d)5.4.
(b) The Company shall reasonably promptly, and in no event later than 24 twenty-four (24) hours after its or any of its Representatives’ receipt of any Company Acquisition Proposal, Proposal or any inquiry or request for nonpublic discussions or negotiations regarding an Acquisition Transaction or non-public information relating to the Company or any of its Subsidiaries in connection with a Company an Acquisition Proposal, advise Parent ETP (orally and in writing writing) of such Company Acquisition Proposal Proposal, inquiry or request, request (including providing the identity of the person making or submitting such Company Acquisition Proposal Proposal, inquiry or request, and, (x) if it is in writing, a copy of such Company Acquisition Proposal Proposal, inquiry or request and any related draft agreements and (y) if oral, a reasonably detailed summary of thereof), in each case including any such Company Acquisition Proposal or request that is made or submitted by any person during the period between the date hereof and the Closingmodifications thereto. The Company shall (i) keep Parent ETP informed in all material respects on a reasonably prompt basis with respect to any change to the status or material terms of any such Company Acquisition Proposal (and in no event later than 24 twenty-four (24) hours following any such change), (ii) provide to Parent as soon as practicable after receipt or delivery thereof with copies of all correspondence and other written material sent or provided to the Company from any third party in connection with any Company Acquisition Proposal or sent or provided by the Company to any third party in connection with any Company Acquisition Proposal and (iii) provide Parent with advance written notice of any scheduled meeting of the Company Board of Directors to discuss a Company Acquisition Proposal.
(c) Upon Immediately following the execution of this Agreement, the Company shall, and shall cause its Subsidiaries and its and their respective officers, directors and employeesdirectors, employees and shall use its reasonable best efforts to cause its and their respective Representatives to, immediately cease and terminate any discussions existing as of the date of this Agreement between the Company or any of its Subsidiaries or any of their respective officers, directors, employees or Representatives and any person (other than ETE, Parent, ETP, HHI, Merger Sub or any of their respective officers, directors, employees or Representatives) that relate to any Company 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 the Company or to destroy all confidential information of the Company and its Subsidiaries. The Company 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 the Company or any of its Subsidiaries is or may become a party and agrees to use commercially reasonable efforts to enforce the provisions of such agreementsProposal.
(d) Except as contemplated by this otherwise provided in Section 5.4(d5.4(e) and Section 5.4(f), neither the Board of Directors of the Company nor any committee thereof shall may (i) (A) fail to make, withhold, withdraw, amend, change, qualify or modify, or resolve to or publicly propose to withhold, withdraw, amend, change, qualify or modify modify, the Company Recommendation in a manner adverse to ParentETP, (Bii) make fail to recommend against acceptance of any other public statement in connection with tender offer or exchange offer for the shares of Company Common Stock within ten (10) Business Days after the commencement of any such offer, (iii) fail to, within five business days of receipt of a written request of ETP following the receipt by the Company Stockholders’ Meeting or this Agreement or the Transactions inconsistent with of any Acquisition Proposal, publicly reconfirm the Company Recommendation, (Civ) approverecommend, adopt or recommend approve, or propose publicly to recommend, adopt or approve, any Company Acquisition Proposal Proposal, or (Dv) fail to reaffirm or re-publish make any public statement that is materially inconsistent with the Company Recommendation within five days of being requested by Parent to do so (each such any action set forth described in clauses (A) through (D) above being this Section 5.4(d), a “Company Change of Recommendation”). No Change of Recommendation, whether or not in accordance with Section 5.4(e) or Section 5.4(f), shall change the approval of this Agreement for purposes of Section 251 of the DGCL, and no Change of Recommendation shall have the effect of causing any state (iiincluding Delaware) approve, adopt or recommend, or publicly propose to approve, adopt or recommend, a merger agreement, letter of intent, agreement in principle, share purchase agreement, asset purchase agreement, share exchange agreement, option agreement corporate takeover statute or other similar contract statute to be applicable to the transactions contemplated by this Agreement (other than including the confidentiality agreement referred Merger).
(e) Notwithstanding anything in this Agreement to in Section 5.4(a)) or any tender offer providing forthe contrary, with respect to, or in connection with any Company to an Acquisition Proposal. Notwithstanding the foregoing, the Board of Directors of the Company may at any time prior to receipt of the Company Stockholder Approval, in respect of a Company Acquisition Proposal, (i) make a Company Change of Recommendation and (ii) and/or terminate this Agreement pursuant to Section 7.1(j) of this Agreement7.1(h), if (and only if): (i) (A) a written, Acquisition Proposal (that (x) did not result from a breach of this Section 5.4 by the Company and (y) was not initially solicited by the Company’s Representatives) is made by a third party after the date hereof, and such Acquisition Proposal is made to the Company by a third party, and such offer is not withdrawn; , (B) the Company’s Board of Directors determines in good faith after consultation with its financial advisors and outside legal counsel that such offer Acquisition Proposal constitutes a Company Superior Offer; Offer and (C) following consultation with outside legal counsel, the Company’s Board of Directors of the Company determines that the failure to make a Company Change of Recommendation, Recommendation or to terminate this Agreement pursuant to Section 7.1(j7.1(h) of this Agreement, would be reasonably likely to be inconsistent with constitute a breach by the exercise Board of Directors of its fiduciary duties under applicable Laws, Law; and (Dii) (A) the Company Board of Directors has provided to Parent five business days provides ETP seventy-two (72) hour’s prior written notice of its intent intention to effect a Company Change of Recommendation (take such action, which notice shall include the reasonable details regarding the cause forinformation with respect to such Superior Offer that is specified in Section 5.4(b), (B) after providing such notice and nature ofprior to making such Change of Recommendation in connection with a Superior Offer or taking any action pursuant to Section 7.1(h) with respect to a Superior Offer, the Company Change of Recommendation and, if requested by Parent, negotiated shall negotiate in good faith with Parent ETP during such five business day seventy-two (72) hour period regarding (to the extent that ETP desires to negotiate) to make such revisions to the terms of this Agreement which would avoid Agreement, such Company Change of Recommendation; that the Acquisition Proposal ceases to constitute a Superior Offer, and (EC) the Company Board of Directors has provided to Parent advance written notice of such Company Change of Recommendation at least two hours prior thereto. The Board of Directors of the Company may notshall have considered in good faith any changes to this Agreement offered in writing by ETP, and following such seventy-two (72) hour period, shall have determined in good faith, after consultation with its outside legal counsel and financial advisors, that the Acquisition Proposal would continue to constitute a Superior Offer if such changes offered in writing by ETP were to be given effect; provided that, in respect of a Company the event that the Acquisition Proposal is thereafter modified by the party making such Acquisition Proposal, make a the Company Change shall provide written notice of Recommendation in a manner adverse to Parent except in compliance in all respects such modified Acquisition Proposal and shall again comply with this Section 5.4(d5.4(e). For the avoidance of doubt, a change of the Company Recommendation to “neutral” is a Company Change of Recommendation.
(ef) Nothing Other than in connection with a Superior Offer (which shall be subject to Section 5.4(e) and shall not be subject to this Section 5.4(f)), nothing in this Agreement shall prohibit or restrict the Board of Directors of the Company, at any time prior to receipt of the Company Stockholder Approval, in circumstances not involving or relating to from making a Company Acquisition Proposal, from effecting a Company Change of Recommendation if in response to an Intervening Event to the extent that (i) the Board determines in good faith, after consultation with the Company’s outside legal counsel, that the failure of the Board of Directors of the Company determines in good faith (after consultation with outside legal counsel) that failure to take such action effect a Change of Recommendation would be reasonably likely to be inconsistent constitute a breach of its fiduciary duties under applicable Law, and (ii) (A) the Company provides ETP seventy-two (72) hour’s prior written notice of its intention to take such action, which notice shall specify the reasons therefor, (B) after providing such notice and prior to making such Change of Recommendation, the Company shall negotiate in good faith with ETP during such seventy-two (72) hour period (to the exercise extent that ETP desires to negotiate) to make such revisions to the terms of this Agreement as would not permit the Board of Directors to make a Change of Recommendation pursuant to this Section 5.4(f), and (C) the Board of Directors of the Company shall have considered in good faith any changes to this Agreement offered in writing by ETP, and following such seventy-two (72) hour period, shall have determined in good faith, after consultation with its outside legal counsel and financial advisors, that the Board of Directors’ fiduciary duties under applicable Law would continue to require a Change of Recommendation with respect to an Intervening Event.
(g) Notwithstanding anything to the contrary in this Section 5.4, with respect to Susser MLP and its Subsidiaries, the Company’s obligations under this Section 5.4 to take an action or not to take an action shall only apply to the extent permitted by the organizational documents of Susser MLP and its Subsidiaries and to the extent permitted by applicable Law.
(h) Nothing contained in this Section 5.4 or elsewhere in this Agreement shall prohibit the Company, Susser MLP or the Board of Directors of the Company or the Board of Directors of Susser MLP GP from taking and disclosing to its equityholders a position contemplated by Rule 14d-9 or 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” letter or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act; provided, however, that any such disclosure that addresses or relates to the approval, recommendation or declaration of advisability by the Board of Directors of its duties under applicable Laws if (and only if): (A) the Company with respect to this Agreement or an Acquisition Proposal shall be deemed to be a Change of Recommendation unless the Board of Directors has provided to Parent five business days prior written notice of its intent to effect a Company Change of Recommendation (which notice shall include the reasonable details regarding the cause for, and nature of, the Company Change of Recommendation) and, if requested by Parent, negotiated in good faith connection with Parent during such five business day period regarding revisions communication publicly states that its recommendation with respect to this Agreement that would avoid such Company Change has not changed or refers to the prior recommendation of Recommendation and (B) the Company Board of Directors has provided to Parent advance written notice of such Company Change of Recommendation at least two hours prior theretothe Company.
(fi) As used in this Agreement:
Appears in 1 contract
Non-Solicitation by the Company. (a) The Company agrees that neither it nor any Subsidiary Except as permitted by this Section 5.4, from the date hereof and prior to the earlier of the CompanyEffective Time and the Termination Date, nor any of the Company shall not, and the Company shall cause its Subsidiaries and its and their respective directors, officers, directors or employees, shall, employees and that it shall use its reasonable best efforts to cause its and their respective Representatives not to (and shall not authorize or permit its and their respective Representatives to), directly or indirectly: (i) solicit, initiate, seek or knowingly encourage (including by way of furnishing information) encourage, induce or knowingly take any other action designed to facilitate any inquiries regarding or the making, making or submission or announcement of any Company proposal that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (ii) furnish any nonpublic non-public information regarding the Company or any of its Subsidiaries or afford access to the business, properties, books or records of the Company or any of its Subsidiaries, to any person (other than Parent any ETP Party, HHI, Merger Sub or Merger Subtheir respective directors, officers, employees, affiliates or Representatives) in connection with or in response to a Company an Acquisition Proposal or any inquiries regarding an Acquisition Proposal, (iii) engage or participate in any discussions or negotiations with any a person (other than Parent any ETP Party, HHI, Merger Sub or Merger Subtheir respective directors, officers, employees, affiliates or Representatives) with respect to any Company an Acquisition Proposal, (iv) approve, endorse or recommend (or publicly propose to approve, endorse or recommend) any Company Acquisition Proposal or Proposal, (v) enter into any letter of intent, term sheet, memorandum of understanding, merger agreement, acquisition agreement, exchange agreement in principle or any other agreement providing for any Company Acquisition Transaction (except as or requiring the Company to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by Section 7.1(j)); providedthis Agreement, however, that this Section 5.4 shall not prohibit (Avi) the Company, or the Board of Directors of the Company, directly or indirectly through any officer, employee or Representative, prior to the receipt of the Company Stockholder Approval, from furnishing nonpublic information regarding the Company 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 Company Acquisition Proposal that the Board of Directors of the Company concludes in good faith, after consultation with its financial advisors, constitutes or is reasonably likely to lead to a Company Superior Offer if (1) unless the Board of Directors of the Company concludes in good faith, after consultation with its outside legal counsel, that the failure to take such action would reasonably be expected to constitute a breach of its fiduciary duties under applicable Law, (x) amend or grant any waiver, release or modification under, or fail to enforce, any standstill or similar agreement with respect to such any class of equity securities of the Company or any of its Subsidiaries or (y) take any action to make the provisions of Section 203 of the DGCL inapplicable to any Acquisition Proposal would be reasonably likely or Acquisition Transaction or (vii) resolve or agree to be inconsistent with do any of the exercise by foregoing. Notwithstanding the first sentence of this Section 5.4(a), prior to obtaining the Company Stockholder Approval, the Company, or the Board of Directors of their duties under applicable Lawsthe Company, directly or indirectly through any officer, employee or Representative, may (2x) furnish non-public information regarding the Company or any of its Subsidiaries to, and afford access to the business, properties, books or records of the Company and any of its Subsidiaries to, any person and (y) engage and participate in discussions and negotiations with any person, in each case in response to an unsolicited, written and bona fide Acquisition Proposal if the Board of Directors of the Company, prior to taking any such particular action, concludes in good faith, after consultation with its financial advisors and outside legal counsel, that such Acquisition Proposal constitutes or could reasonably be expected to result in a Superior Offer if (1) such Company Acquisition Proposal was received after the date of this Agreement and did not result from a breach of this Section 5.4(a) (other than any such breach that is unintentional and immaterial in effect)5.4, (32) the Company gives provides to Parent ETP the notice required by Section 5.4(b)) with respect to such Acquisition Proposal, and (43) the Company furnishes any nonpublic non-public information provided to the maker of the Company Acquisition Proposal only pursuant to a confidentiality agreement between the Company and such person on terms no with provisions that are not less favorable restrictive to the Company such person than the provisions of the Confidentiality Agreement (provided that such confidentiality agreement shall not in any way restrict the Company from complying with its disclosure obligations under this Agreement, including with respect to such proposal), and such furnished information is delivered to Parent at substantially the same time (to the extent such non-public information that has not been previously furnished or made available by to ETP is made available to the Company to Parent); or (B) maker of the Company from taking and disclosing to its stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act with regard to any Company Acquisition Proposal, provided, however, provide or make available such non-public information to ETP substantially concurrent with the time that compliance with such rules shall not in any way limit or modify the effect that any action taken pursuant it is provided to such rules has under other person. Nothing in this Section 5.4 shall prohibit the Company, or the Board of Directors of the Company, directly or indirectly through any other provision of officer, employee or Representative, from (1) informing any person that the Company is party to this Agreement and informing such person of the restrictions that are set forth in no event shall Section 5.4, or (2) disclosing factual information regarding the business, financial condition or results of operations of the Company or the fact that an Acquisition Proposal has been made, the identity of the party making such proposal or the material terms of such proposal in the Proxy Statement/Prospectus or otherwise; provided that, in the case of this clause (2), (x) the Company Board of Directors shall in good faith determine, after consultation with its outside legal counsel, that such information, facts, identity or a committee thereof take any action terms is required to be disclosed under applicable Law or that would failure to make such disclosure is reasonably likely to constitute a breach of its fiduciary duties under applicable Law, and (y) the Company Change complies with the obligations set forth in Recommendation the proviso in respect Section 5.4(h). So long as the Company and its Representatives have otherwise complied with this Section 5.4, none of a the foregoing shall prohibit the Company and its Representatives from contacting any persons or group of persons who has made an Acquisition Proposal other than in compliance with after the date of this Agreement solely to request the clarification of the terms and conditions thereof so as to determine whether the Acquisition Proposal is, or could reasonably be expected to result in, a Superior Offer, and any such actions shall not be a breach of this Section 5.4(d)5.4.
(b) The Company shall reasonably promptly, and in no event later than 24 twenty-four (24) hours after its or any of its Representatives’ receipt of any Company Acquisition Proposal, Proposal or any inquiry or request for nonpublic discussions or negotiations regarding an Acquisition Transaction or non-public information relating to the Company or any of its Subsidiaries in connection with a Company an Acquisition Proposal, advise Parent ETP (orally and in writing writing) of such Company Acquisition Proposal Proposal, inquiry or request, request (including providing the identity of the person making or submitting such Company Acquisition Proposal Proposal, inquiry or request, and, (x) if it is in writing, a copy of such Company Acquisition Proposal Proposal, inquiry or request and any related draft agreements and (y) if oral, a reasonably detailed summary of thereof), in each case including any such Company Acquisition Proposal or request that is made or submitted by any person during the period between the date hereof and the Closingmodifications thereto. The Company shall (i) keep Parent ETP informed in all material respects on a reasonably prompt basis with respect to any change to the status or material terms of any such Company Acquisition Proposal (and in no event later than 24 twenty-four (24) hours following any such change), (ii) provide to Parent as soon as practicable after receipt or delivery thereof with copies of all correspondence and other written material sent or provided to the Company from any third party in connection with any Company Acquisition Proposal or sent or provided by the Company to any third party in connection with any Company Acquisition Proposal and (iii) provide Parent with advance written notice of any scheduled meeting of the Company Board of Directors to discuss a Company Acquisition Proposal.
(c) Upon Immediately following the execution of this Agreement, the Company shall, and shall cause its Subsidiaries and its and their respective officers, directors and employeesdirectors, employees and shall use its reasonable best efforts to cause its and their respective Representatives to, immediately cease and terminate any discussions existing as of the date of this Agreement between the Company or any of its Subsidiaries or any of their respective officers, directors, employees or Representatives and any person (other than ETE, Parent, ETP, HHI, Merger Sub or any of their respective officers, directors, employees or Representatives) that relate to any Company 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 the Company or to destroy all confidential information of the Company and its Subsidiaries. The Company 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 the Company or any of its Subsidiaries is or may become a party and agrees to use commercially reasonable efforts to enforce the provisions of such agreementsProposal.
(d) Except as contemplated by this otherwise provided in Section 5.4(d5.4(e) and Section 5.4(f), neither the Board of Directors of the Company nor any committee thereof shall may (i) (A) fail to make, withhold, withdraw, amend, change, qualify or modify, or resolve to or publicly propose to withhold, withdraw, amend, change, qualify or modify modify, the Company Recommendation in a manner adverse to ParentETP, (Bii) make fail to recommend against acceptance of any other public statement in connection with tender offer or exchange offer for the shares of Company Common Stock within ten (10) Business Days after the commencement of any such offer, (iii) fail to, within five business days of receipt of a written request of ETP following the receipt by the Company Stockholders’ Meeting or this Agreement or the Transactions inconsistent with of any Acquisition Proposal, publicly reconfirm the Company Recommendation, (Civ) approverecommend, adopt or recommend approve, or propose publicly to recommend, adopt or approve, any Company Acquisition Proposal Proposal, or (Dv) fail to reaffirm or re-publish make any public statement that is materially inconsistent with the Company Recommendation within five days of being requested by Parent to do so (each such any action set forth described in clauses (A) through (D) above being this Section 5.4(d), a “Company Change of Recommendation”). No Change of Recommendation, whether or not in accordance with Section 5.4(e) or Section 5.4(f), shall change the approval of this Agreement for purposes of Section 251 of the DGCL, and no Change of Recommendation shall have the effect of causing any state (iiincluding Delaware) approve, adopt or recommend, or publicly propose to approve, adopt or recommend, a merger agreement, letter of intent, agreement in principle, share purchase agreement, asset purchase agreement, share exchange agreement, option agreement corporate takeover statute or other similar contract statute to be applicable to the transactions contemplated by this Agreement (other than including the confidentiality agreement referred Merger).
(e) Notwithstanding anything in this Agreement to in Section 5.4(a)) or any tender offer providing forthe contrary, with respect to, or in connection with any Company to an Acquisition Proposal. Notwithstanding the foregoing, the Board of Directors of the Company may at any time prior to receipt of the Company Stockholder Approval, in respect of a Company Acquisition Proposal, (i) make a Company Change of Recommendation and (ii) and/or terminate this Agreement pursuant to Section 7.1(j) of this Agreement7.1(h), if (and only if): (i) (A) a written, Acquisition Proposal (that (x) did not result from a breach of this Section 5.4 by the Company and (y) was not initially solicited by the Company’s Representatives) is made by a third party after the date hereof, and such Acquisition Proposal is made to the Company by a third party, and such offer is not withdrawn; , (B) the Company’s Board of Directors determines in good faith after consultation with its financial advisors and outside legal counsel that such offer Acquisition Proposal constitutes a Company Superior Offer; Offer and (C) following consultation with outside legal counsel, the Company’s Board of Directors of the Company determines that the failure to make a Company Change of Recommendation, Recommendation or to terminate this Agreement pursuant to Section 7.1(j7.1(h) of this Agreement, would be reasonably likely to be inconsistent with constitute a breach by the exercise Board of Directors of its fiduciary duties under applicable Laws, Law; and (Dii) (A) the Company Board of Directors has provided to Parent five business days provides ETP seventy-two (72) hour’s prior written notice of its intent intention to effect a Company Change of Recommendation (take such action, which notice shall include the reasonable details regarding the cause forinformation with respect to such Superior Offer that is specified in Section 5.4(b), (B) after - 52 - providing such notice and nature ofprior to making such Change of Recommendation in connection with a Superior Offer or taking any action pursuant to Section 7.1(h) with respect to a Superior Offer, the Company Change of Recommendation and, if requested by Parent, negotiated shall negotiate in good faith with Parent ETP during such five business day seventy-two (72) hour period regarding (to the extent that ETP desires to negotiate) to make such revisions to the terms of this Agreement which would avoid Agreement, such Company Change of Recommendation; that the Acquisition Proposal ceases to constitute a Superior Offer, and (EC) the Company Board of Directors has provided to Parent advance written notice of such Company Change of Recommendation at least two hours prior thereto. The Board of Directors of the Company may notshall have considered in good faith any changes to this Agreement offered in writing by ETP, and following such seventy-two (72) hour period, shall have determined in good faith, after consultation with its outside legal counsel and financial advisors, that the Acquisition Proposal would continue to constitute a Superior Offer if such changes offered in writing by ETP were to be given effect; provided that, in respect of a Company the event that the Acquisition Proposal is thereafter modified by the party making such Acquisition Proposal, make a the Company Change shall provide written notice of Recommendation in a manner adverse to Parent except in compliance in all respects such modified Acquisition Proposal and shall again comply with this Section 5.4(d5.4(e). For the avoidance of doubt, a change of the Company Recommendation to “neutral” is a Company Change of Recommendation.
(ef) Nothing Other than in connection with a Superior Offer (which shall be subject to Section 5.4(e) and shall not be subject to this Section 5.4 (f)), nothing in this Agreement shall prohibit or restrict the Board of Directors of the Company, at any time prior to receipt of the Company Stockholder Approval, in circumstances not involving or relating to from making a Company Acquisition Proposal, from effecting a Company Change of Recommendation if in response to an Intervening Event to the extent that (i) the Board determines in good faith, after consultation with the Company’s outside legal counsel, that the failure of the Board of Directors of the Company determines in good faith (after consultation with outside legal counsel) that failure to take such action effect a Change of Recommendation would be reasonably likely to be inconsistent constitute a breach of its fiduciary duties under applicable Law, and (ii) (A) the Company provides ETP seventy-two (72) hour’s prior written notice of its intention to take such action, which notice shall specify the reasons therefor, (B) after providing such notice and prior to making such Change of Recommendation, the Company shall negotiate in good faith with ETP during such seventy-two (72) hour period (to the exercise extent that ETP desires to negotiate) to make such revisions to the terms of this Agreement as would not permit the Board of Directors to make a Change of Recommendation pursuant to this Section 5.4(f), and (C) the Board of Directors of the Company shall have considered in good faith any changes to this Agreement offered in writing by ETP, and following such seventy-two (72) hour period, shall have determined in good faith, after consultation with its outside legal counsel and financial advisors, that the Board of Directors’ fiduciary duties under applicable Law would continue to require a Change of Recommendation with respect to an Intervening Event.
(g) Notwithstanding anything to the contrary in this Section 5.4, with respect to Susser MLP and its Subsidiaries, the Company’s obligations under this Section 5.4 to take an action or not to take an action shall only apply to the extent permitted by the organizational documents of Susser MLP and its Subsidiaries and to the extent permitted by applicable Law.
(h) Nothing contained in this Section 5.4 or elsewhere in this Agreement shall prohibit the Company, Susser MLP or the Board of Directors of the Company or the Board of Directors of Susser MLP GP from taking and disclosing to its equityholders a position contemplated by Rule 14d-9 or 14e-2(a) promulgated under the Exchange Act or from issuing a “stop, look and listen” letter or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act; provided, however, that any such disclosure that addresses or relates to the approval, recommendation or declaration of advisability by the Board of Directors of its duties under applicable Laws if (and only if): (A) the Company with respect to this Agreement or an Acquisition Proposal shall be deemed to be a Change of Recommendation unless the Board of Directors has provided to Parent five business days prior written notice of its intent to effect a Company Change of Recommendation (which notice shall include the reasonable details regarding the cause for, and nature of, the Company Change of Recommendation) and, if requested by Parent, negotiated in good faith connection with Parent during such five business day period regarding revisions communication publicly states that its recommendation with respect to this Agreement that would avoid such Company Change has not changed or refers to the prior recommendation of Recommendation and (B) the Company Board of Directors has provided to Parent advance written notice of such Company Change of Recommendation at least two hours prior theretothe Company.
(fi) As used in this Agreement:
Appears in 1 contract
Samples: Merger Agreement
Non-Solicitation by the Company. (a) The Company agrees that neither it nor any Subsidiary of the Company, 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 permit give permission to 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 of, any Company proposal that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (ii) furnish any nonpublic non-public information regarding the Company or any of its Subsidiaries to, or afford access to the business, properties, books or records of the Company or any of its Subsidiaries to, any person (other than Parent or Merger Sub) ), in connection with or in response to a Company an Acquisition Proposal, (iii) engage or participate in any discussions or negotiations with any person (other than Parent or Merger Sub) with respect to any Company Acquisition Proposal, (iv) approve, endorse or recommend (or publicly propose to approve, endorse or recommend) any Company Acquisition Proposal or Proposal, (v) enter into any letter of intent, term sheet, memorandum of understanding, merger agreement, acquisition agreement, exchange agreement in principle or any other agreement providing for any Company Acquisition Transaction (except as or requiring the Company to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by Section 7.1(j))this Agreement or (vi) resolve, propose or agree to do any of the foregoing; provided, however, that this Section 5.4 5.3 shall not prohibit prohibit: (A) the Company, or the Board of Directors of the Company, directly or indirectly through any officer, employee or Representative, prior to the receipt of obtaining the Company Stockholder Approval, from furnishing nonpublic information regarding the Company 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 Company unsolicited Acquisition Proposal that the Board of Directors of the Company Company, prior to taking any such particular action, concludes in good faith, after consultation with its financial advisorsadvisors and outside legal counsel (it being understood that, for purposes of this Section 5.3, such a financial advisor or outside legal counsel shall include a financial advisor or outside legal counsel to a duly constituted and acting committee of the Board of Directors of the Company), constitutes or is reasonably likely to lead to result in a Company Superior Offer if (1) the Board of Directors of the Company concludes in good faith, after consultation with its outside legal counsel, that the failure to take such action with respect to such Company Acquisition Proposal would be reasonably likely to be inconsistent with the exercise constitute a breach by the Board of Directors of their its fiduciary duties under applicable Laws, (2) such Company Acquisition Proposal did not result from a breach of this Section 5.4(a) (other than any such breach that is unintentional and immaterial in effect)5.3, (3) the Company gives to Parent the notice required by this Section 5.4(b)5.3, and (4) the Company furnishes any nonpublic non-public information provided to the maker of the Company Acquisition Proposal only pursuant to a confidentiality agreement between the Company and such person on substantially the same terms no less favorable to the Company than as the Confidentiality Agreement (provided it being acknowledged and agreed that such confidentiality agreement shall need not in contain a “standstill” or similar provision that prohibits the third party recipient of such information from making any way restrict the Company from complying with its disclosure obligations under this Agreement, including with respect to such proposal), Acquisition Proposal) and such furnished information is delivered to Parent at substantially the same time (to the extent such non-public information that has not been previously furnished or made available by to Parent is made available to the Company maker of the Acquisition Proposal, provide such non-public information to Parent)Parent substantially concurrent with the time that it is provided to such other person; or (B) the Company from taking and disclosing to its stockholders a position contemplated by Rule complying with Rules 14d-9 and Rule 14e-2(a) 14e-2 promulgated under the Exchange Act with regard to any Company Acquisition Proposal, provided, however, that compliance Proposal (or making any similar communication to stockholders in connection with such rules shall not in any way limit amendment to the terms of a tender offer or modify the effect that exchange offer) so long as any action taken pursuant or statement made to such rules has under so comply is consistent with this Section 5.3; (C) the Company, or the Board of Directors, directly or indirectly through any other provision officer, employee or Representative disclosing factual information regarding the business, financial condition or results of this Agreement and in no event shall operations of the Company or the fact that an Acquisition Proposal has been made, the identity of the party making such proposal or the material terms of such proposal in the Proxy Statement or otherwise, to the extent the Company in good faith determines that such information, facts, identity or terms is required to be disclosed under applicable Law or that failure to make such disclosure is reasonably likely to be inconsistent with its fiduciary duties under applicable Law; or (D) the Company, or the Board of Directors, directly or indirectly through any officer, employee or Representative making any statement or disclosure to the Company’s stockholders required by applicable Law; provided that any such action taken or statement or disclosure made that relates to an Acquisition Proposal shall be deemed to be a Change of Recommendation unless the Board of Directors reaffirms its recommendation in favor of the proposed transaction in such statement or disclosure or in connection with such action (except that a committee thereof take any action that would constitute a Company Change in Recommendation in respect of a Company Acquisition Proposal other than mere “stop, look and listen” disclosure in compliance with Rule 14d-9(f) of the 1934 Act shall not constitute a Change of Recommendation). So long as the Company and its Representatives have otherwise complied with this Section 5.4(d)5.3, none of the foregoing shall prohibit the Company and its Representatives from contacting in writing any persons or group of persons who has made an Acquisition Proposal after the date of this Agreement solely to request the clarification of the terms and conditions thereof so as to determine whether the Acquisition Proposal is, or could reasonably be expected to lead to, a Superior Offer, and any such actions shall not be a breach of this Section 5.3.
(b) The Company shall promptly, and in no event later than 24 twenty-four (24) hours after its or any of its Representatives’ receipt of any Company Acquisition Proposal, Proposal or any request for nonpublic non-public information relating to the Company or any of its Subsidiaries in connection with a Company an Acquisition Proposal, advise Parent orally and in writing of such Company Acquisition Proposal or request, request (including providing the identity of the person making or submitting such Company Acquisition Proposal or request, and, (x) if it is in writing, a copy of such Company Acquisition Proposal and any related draft agreements and (y) if oral, a reasonably detailed summary of any such Company Acquisition Proposal or request thereof that is made or submitted by any person during the period between the date hereof and the Closing). The Company shall (i) keep Parent informed in all material respects on a prompt basis with respect to any change to the status or material terms of any such Company Acquisition Proposal (and in no event later than 24 twenty-four (24) hours following any such change), (ii) . The Company agrees that it shall promptly provide to Parent as soon as practicable after receipt any non-public information concerning itself or delivery thereof with copies of all correspondence and other written material sent or its Subsidiaries provided to the Company from any third party other person in connection with any Company Acquisition Proposal or sent or which was not previously provided by the Company to any third party in connection with any Company Acquisition Proposal and (iii) provide Parent with advance written notice of any scheduled meeting of the Company Board of Directors to discuss a Company Acquisition ProposalParent.
(c) Upon Immediately following the execution of this Agreement, (i) the Company 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 as of the date of this Agreement between the Company or any of its Subsidiaries or any of their respective officers, directors, employees or Representatives and any person (other than Parent) that relate to any Company Acquisition Proposal andProposal, 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 and (ii) the Company shall, and shall use its reasonable best efforts to cause its Representatives to, cause to be returned or to destroy destroyed all confidential information provided by or on behalf of the Company and its Subsidiaries. The Company 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 the Company or any of its Subsidiaries is or may become a party and agrees Subsidiary to use commercially reasonable efforts to enforce the provisions of such agreementsperson.
(d) Except as contemplated by this otherwise provided in Section 5.4(d5.3(e), neither the Board of Directors of the Company nor any committee thereof shall may (i) (A) withhold, withdraw, qualify withdraw or modify, or resolve to or publicly propose to withhold, withdrawwithdraw or modify, qualify or modify the Company Recommendation in a manner adverse to Parent, or (Bii) make any other public statement in connection with the Company Stockholders’ Meeting or this Agreement or the Transactions inconsistent with the Company Recommendation, (C) approverecommend, adopt or recommend approve, or propose publicly to recommend, adopt or approve, any Company Acquisition Proposal or (D) fail to reaffirm or re-publish the Company Recommendation within five days of being requested by Parent to do so (each such any action set forth described in clauses (A) through (D) above being this Section 5.3(d), a “Company Change of Recommendation”).
(e) Notwithstanding anything in this Agreement to the contrary, with respect to (i) an Intervening Event or (ii) approve, adopt or recommend, or publicly propose to approve, adopt or recommend, a 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 5.4(a)) or any tender offer providing for, with respect to, or in connection with any Company an Acquisition Proposal. Notwithstanding the foregoing, the Board of Directors of the Company may at any time prior to receipt of the Company Stockholder Approval, in respect of a Company Acquisition Proposal, (i) make a Company Change of Recommendation and (ii) terminate this Agreement pursuant to Section 7.1(j) of this Agreement, if (and only if): (A) a Company in the case of (ii) above, (x) an Acquisition Proposal (that did not result from a breach of Section 5.3(a)) is made to the Company by a third party, and such offer Acquisition Proposal is not withdrawn; and (By) the Company’s Board of Directors determines in good faith after consultation with its financial advisors and outside legal counsel that such offer Acquisition Proposal constitutes a Company Superior Offer; , (CB) in the case of (i) above, following consultation with outside legal counsel, the Company’s Board of Directors determines that the failure to make a Company Change of Recommendation, or to terminate this Agreement pursuant to Section 7.1(j) of this Agreement, Recommendation would be reasonably likely to be inconsistent with constitute a breach by the exercise Board of Directors of its fiduciary duties under applicable Laws; (C) in the case of (i) and (ii) above, (Dx) the Company Board of Directors has provided to provides Parent five business days ninety-six (96) hours’ prior written notice of its intent intention to effect a Company Change of Recommendation (take such action, which notice shall include the reasonable details regarding information with respect to such Intervening Event or Superior Offer, as the cause forcase may be, that is specified in Section 5.3(b), (y) after providing such notice and nature ofprior to making such Change of Recommendation in connection with an Intervening Event or a Superior Offer, the Company Change of Recommendation and, if requested by Parent, negotiated shall negotiate in good faith with Parent during such five business day ninety-six (96) hour period regarding (to the extent that Parent desires to negotiate) to make such revisions to the terms of this Agreement which as would avoid such Company Change of Recommendation; and (E) the Company Board of Directors has provided to Parent advance written notice of such Company Change of Recommendation at least two hours prior thereto. The Board of Directors of the Company may not, in respect of a Company Acquisition Proposal, make a Company Change of Recommendation in a manner adverse to Parent except in compliance in all respects with this Section 5.4(d). For the avoidance of doubt, a change of the Company Recommendation to “neutral” is a Company Change of Recommendation.
(e) Nothing in this Agreement shall prohibit or restrict the Board of Directors of the Company, at any time prior to receipt of the Company Stockholder Approval, in circumstances not involving or relating to a Company Acquisition Proposal, from effecting a Company Change of Recommendation if permit the Board of Directors of the Company determines not to effect a Change of Recommendation in good faith connection with an Intervening Event or a Superior Offer, and (after consultation with outside legal counselz) that failure to take such action would be reasonably likely to be inconsistent with the exercise by the Board of Directors of its duties under applicable Laws if (and only if): (A) the Company Board shall have considered in good faith any changes to this Agreement offered in writing by Parent and shall have determined in good faith, after consultation with its outside legal counsel and financial advisors, that the event continues to constitute an Intervening Event or that the Superior Offer would continue to constitute a Superior Offer, in each case if such changes offered in writing by Parent were to be given effect; provided that, for the avoidance of Directors has provided to Parent five business days prior written notice of its intent to doubt, the Company shall not effect a Company Change of Recommendation in connection with an Intervening Event or a Superior Offer prior to the time that is ninety-six (which 96) hours after it has provided the written notice shall include required by clause (x) above; provided further, that in the reasonable details regarding event that the cause for, and nature ofAcquisition Proposal is thereafter modified by the party making such Acquisition Proposal, the Company Change of Recommendation) and, if requested by Parent, negotiated in good faith with Parent during such five business day period regarding revisions to this Agreement that would avoid such Company Change of Recommendation and (B) the Company Board of Directors has provided to Parent advance shall provide written notice of such modified Acquisition Proposal and shall again comply with this Section 5.3(e), except that the Company’s advance written notice obligation shall be reduced to seventy-two (72) hours (rather than the ninety-six (96) hours otherwise contemplated by this Section 5.3(e)) and the time the Company shall be permitted to effect a Change of Recommendation at least in connection with a Superior Offer shall be reduced to the time that is seventy-two (72) hours after it has provided such written notice (rather than the time that is the ninety-six (96) hours otherwise contemplated by this Section 5.3(e)) (but in no event prior theretoto the original ninety-six (96) hour advance notice period).
(f) As used in this Agreement:
Appears in 1 contract
Non-Solicitation by the Company. (a) The Company agrees that neither it nor any Subsidiary of the Companyits 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 permit give permission to 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 Company Acquisition Proposal, (ii) furnish any nonpublic information regarding the Company or any of its Subsidiaries to any person (other than Parent or Merger Sub) Person in connection with or in response to a Company Acquisition Proposal, (iii) continue or otherwise engage or participate in any discussions or negotiations with any person (other than Parent or Merger Sub) Person with respect to any Company Acquisition Proposal, (iv) except in connection with a Company Change of Recommendation pursuant to Section 6.6(e), approve, endorse or recommend any Company Acquisition Proposal Proposal, or (v) except in connection with a Company Change of Recommendation pursuant to Section 6.6(e), enter into any letter of intent, arrangement, agreement in principle or other agreement providing for understanding relating to any Company Acquisition Transaction (except as contemplated by Section 7.1(j))Transaction; provided, however, that this Section 5.4 6.6 shall not prohibit (A) the Company, or the Board of Directors of the CompanyCompany or any committee thereof, directly or indirectly through any officer, employee or Representative, prior to the receipt of obtaining the Company Stockholder Shareholder Approval, from furnishing nonpublic information regarding the Company 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 Company Acquisition Proposal that the Board of Directors of the Company or any committee thereof concludes in good faith, after consultation with its outside legal counsel and a financial advisorsadvisor, constitutes or is would reasonably likely be expected to lead to result in a Company Superior Offer if (1) the Board of Directors of the Company 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 Company Acquisition Proposal would be reasonably likely to be inconsistent with the exercise by the Board result in a breach of Directors of their its fiduciary duties under applicable LawsLaw, (2) such Company Acquisition Proposal did not result from a material breach of this Section 5.4(a) (other than any such breach that is unintentional and immaterial in effect)6.6, (3) prior thereto the Company gives to has given Parent the notice required by Section 5.4(b6.6(b), and (4) the Company furnishes any nonpublic information provided to the maker of the Company Acquisition Proposal only pursuant to a confidentiality agreement between the Company and such person on Person containing customary terms no and conditions that in the aggregate are not materially less favorable to restrictive than those contained in the Company than the Confidentiality Agreement (provided that such confidentiality agreement shall not in any way restrict the Company from complying with its disclosure obligations under this Non-Disclosure Agreement, including with respect to such proposal), and such furnished information is delivered to Parent at substantially the same time (to the extent such information has not been previously furnished or made available by the Company to Parent); or (B) the Company from taking and disclosing to its stockholders a position contemplated by complying with Rule 14d-9 and or Rule 14e-2(a) 14e-2 promulgated under the Exchange Act with regard to any Company Acquisition Proposal, providedincluding any so called “stop, howeverlook and listen” communications, or making any other statement or disclosure that the Company determines in good faith, after consultation with its outside legal counsel, that compliance with such rules shall not in any way limit or modify the effect that any action taken pursuant to such rules has under any other provision failure of this Agreement and in no event shall the Company to make such statement or disclosure would reasonably be expected to be a violation of applicable Law; provided that the Company Board of Directors or a committee thereof take any action that would constitute of the Company may make a Company Change of Recommendation only in Recommendation in respect of a Company Acquisition Proposal other than in compliance accordance with Section 5.4(d6.6(e).
(b) The Company shall promptly, and in no event later than 24 twenty-four (24) hours after its receipt of any Company Acquisition Proposal, or any request for nonpublic information relating to the Company or any of its Subsidiaries in connection with a Company Acquisition Proposal, advise Parent orally and in writing of such Company Acquisition Proposal or request, request (including providing the identity of the person Person making or submitting such Company Acquisition Proposal or request, and, (xi) if it is in writing, a copy of such Company Acquisition Proposal and any related draft agreements and (yii) if oral, a reasonably detailed summary of any such Company Acquisition Proposal or request thereof that is made or submitted by any person Person during the period between the date hereof and the ClosingClosing Date). The Company shall (i) keep Parent informed in all material respects on a prompt basis with respect to any change to the status or material terms of any such Company Acquisition Proposal (and in no event later than 24 twenty-four (24) hours following any such change), (ii) provide to Parent as soon as practicable after receipt or delivery thereof with copies of all correspondence and other written material sent or provided to the Company from any third party in connection with any Company Acquisition Proposal or sent or provided by the Company to any third party in connection with any Company Acquisition Proposal and (iii) provide including providing Parent with advance written notice a copy of any scheduled meeting of the Company Board of Directors to discuss a Company Acquisition Proposaldraft agreements and modifications thereof.
(c) Upon the execution of this Agreement, the Company 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 existing as of the date of this Agreement or negotiations between the Company or any of its Subsidiaries or any of their respective officers, directors, employees or Representatives and any person (other than Parent) Person that relate to any Company Acquisition Proposal and, 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 prior 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 the Company or to destroy all confidential information of the Company and its Subsidiaries. The Company 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 the Company or any of its Subsidiaries is or may become a party and agrees to use commercially reasonable efforts to enforce the provisions of such agreementsdate hereof.
(d) Except as contemplated by this otherwise provided in Section 5.4(d6.6(e), neither the Board of Directors of the Company nor (or any committee thereof shall thereof) may not (i) (A) withhold, withdraw, qualify withdraw or modify, or resolve to or publicly propose to withhold, withdrawwithdraw or modify, qualify or modify the Company Recommendation in a manner adverse to Parent, (B) Parent or make any other public statement statement, filing or release, in connection with obtaining the Company Stockholders’ Meeting Shareholder Approval or this Agreement or the Transactions otherwise, inconsistent with the Company Recommendation, (Cii) approve, adopt endorse or recommend any Company Acquisition Proposal or (D) fail to reaffirm or re-publish any of the Company Recommendation within five days of being requested by Parent to do so (each such action foregoing set forth in clauses (Ai) through and (D) above being ii), a “Company Change of Recommendation”) or (iiiii) approve, adopt or recommend, or publicly propose to approve, adopt or recommend, enter into a merger agreement, letter of intent, written definitive 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 5.4(a)) or any tender offer providing for, with respect to, or in connection with any for a Company Acquisition Proposal. Notwithstanding the foregoing, the Transaction.
(e) The Board of Directors of the Company or any committee thereof may at any time prior to receipt of the Company Stockholder Approval, Shareholder Approval (i) effect a Company Change of Recommendation in respect of a Company Acquisition Proposal, and/or (iii) make if it elects to do so in connection with or following a Company Change of Recommendation and (ii) Recommendation, terminate this Agreement pursuant to Section 7.1(j8.1(d)(ii) of this Agreementin order to enter into a written definitive agreement providing for a Company Acquisition Transaction, if (and only if): (A) a Company Acquisition Proposal is made to the Company by a third party, and such offer is not withdrawn; (B) the Company’s Board of Directors of the Company 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 Company Superior Offer; (C) following consultation with outside legal counsel, the Company’s Board of Directors determines that the failure to make a Company Change of Recommendation, or to terminate this Agreement pursuant to Section 7.1(j) of this Agreement, would be reasonably likely to be inconsistent with the exercise of its duties under applicable Laws, (D) the Company Board of Directors has provided to Parent five business days prior written notice of its intent to effect a Company Change of Recommendation (which notice shall include the reasonable details regarding the cause for, and nature of, the Company Change of Recommendation and, if requested by Parent, negotiated in good faith with Parent during such five business day period regarding revisions to this Agreement which would avoid such Company Change of Recommendation; and (E) the Company Board of Directors has provided to Parent advance written notice of such Company Change of Recommendation at least two hours prior thereto. The Board of Directors of the Company may not, in respect of a Company Acquisition Proposal, make a Company Change of Recommendation in a manner adverse to Parent except in compliance in all respects with this Section 5.4(d). For the avoidance of doubt, a change of the Company Recommendation to “neutral” is a Company Change of Recommendation.
(e) Nothing in this Agreement shall prohibit or restrict the Board of Directors of the Company, at any time prior to receipt of the Company Stockholder Approval, in circumstances not involving or relating to a Company Acquisition Proposal, from effecting a Company Change of Recommendation if the Board of Directors of the Company such 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 Law; (D) the Company provides Parent five (5) Business Days’ prior written notice of its intention to take such action, which notice shall include the information with respect to such Company Superior Offer that is specified in Section 6.6(b) (it being understood that any material revision or amendment to the terms of such Company Superior Offer shall require a new notice and, in such case, all references to five (5) Business Days in this Section 6.6(e) shall be inconsistent with deemed to be two (2) Business Days); and (E) at the exercise by end of the five (5) Business Day period described in clause (D), the Board of Directors of its duties under applicable Laws if (and only if): (A) the Company Board of Directors has provided to Parent five business days prior written notice of its intent to effect or such committee thereof again makes the determination in good faith after consultation with outside legal counsel and a Company Change of Recommendation financial advisor (which notice shall include the reasonable details regarding the cause for, and nature of, the Company Change of Recommendation) and, if requested by Parent, negotiated after negotiating in good faith with Parent and its Representatives if requested by Parent during such five business day (5) Business Day period regarding revisions any adjustments or modifications to the terms of this Agreement proposed by Parent and taking into account any such adjustments or modifications) that would avoid such Company Change of Recommendation and (B) the Company Board Acquisition Proposal continues to be a Company 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 Directors has provided to Parent advance written notice of such Company Change of Recommendation at least two hours prior theretoits fiduciary duties under applicable Law.
(f) As used During the period from the date of this Agreement through the Effective Time, neither the Company 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 the Company or any standstill agreement to which it is a party unless the Board of Directors of the Company or any committee thereof determines in this Agreement: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 Law. During such period, the Company 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 the Company 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 Law.
Appears in 1 contract
Samples: Merger Agreement (Fundtech LTD)
Non-Solicitation by the Company. (a) The Company agrees that neither it nor any Subsidiary of the Companyits 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 permit give permission to 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 Company Acquisition Proposal, (ii) furnish any nonpublic information regarding the Company or any of its Subsidiaries to any person (other than Parent or Merger Sub) Person in connection with or in response to a Company Acquisition Proposal, (iii) continue or otherwise engage or participate in any discussions or negotiations with any person (other than Parent or Merger Sub) Person with respect to any Company Acquisition Proposal, (iv) except in connection with a Company Change of Recommendation pursuant to Section 7.5(e), approve, endorse or recommend any Company Acquisition Proposal Proposal, or (v) except in connection with a Company Change of Recommendation pursuant to Section 7.5(e), enter into any letter of intent, arrangement, agreement in principle or other agreement providing for understanding relating to any Company Acquisition Transaction (except as contemplated by Section 7.1(j))Transaction; provided, however, that this Section 5.4 7.5 shall not prohibit (A) the Company, or the Board of Directors of the CompanyCompany or any committee thereof, directly or indirectly through any officer, employee or Representative, prior to the earlier of the Acceptance Time or the receipt of the Company Stockholder Approval, from furnishing nonpublic information regarding the Company 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 Company Acquisition Proposal that the Board of Directors of the Company or any committee thereof concludes in good faith, after consultation with its outside legal counsel and a financial advisorsadvisor, constitutes or is would reasonably likely be expected to lead to result in a Company Superior Offer if (1) the Board of Directors of the Company 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 Company Acquisition Proposal would be reasonably likely to be inconsistent with the exercise by the Board result in a breach of Directors of their its fiduciary duties under applicable LawsLaw, (2) such Company Acquisition Proposal did not result from a material breach of this Section 5.4(a) (other than any such breach that is unintentional and immaterial in effect)7.5, (3) prior thereto the Company gives to has given Parent the notice required by Section 5.4(b7.5(b), and (4) the Company furnishes any nonpublic information provided to the maker of the Company Acquisition Proposal only pursuant to a confidentiality agreement between the Company and such person on Person containing customary terms no and conditions that in the aggregate are not materially less favorable to restrictive than those contained in the Company than the Confidentiality Agreement (provided that such confidentiality agreement shall not in any way restrict the Company from complying with its disclosure obligations under this Non-Disclosure Agreement, including with respect to such proposal), and such furnished information is delivered to Parent at substantially the same time (to the extent such information has not been previously furnished or made available by the Company to Parent); or (B) the Company from taking and disclosing to its stockholders a position contemplated by complying with Rule 14d-9 and or Rule 14e-2(a) 14e-2 promulgated under the Exchange Act with regard to any Company Acquisition Proposal, providedincluding any so called “stop, howeverlook and listen” communications, or making any other statement or disclosure that the Company determines in good faith, after consultation with its outside legal counsel, that compliance with such rules shall not in any way limit or modify the effect that any action taken pursuant to such rules has under any other provision failure of this Agreement and in no event shall the Company to make such statement or disclosure would reasonably be expected to be a violation of applicable Law; provided that the Company Board of Directors or a committee thereof take any action that would constitute of the Company may make a Company Change of Recommendation only in Recommendation in respect of a Company Acquisition Proposal other than in compliance accordance with Section 5.4(d7.5(e).
(b) The Company shall promptly, and in no event later than 24 hours after its receipt of any Company Acquisition Proposal, or any request for nonpublic information relating to the Company or any of its Subsidiaries in connection with a Company Acquisition Proposal, advise Parent orally and in writing of such Company Acquisition Proposal or request, request (including providing the identity of the person Person making or submitting such Company Acquisition Proposal or request, and, (xi) if it is in writing, a copy of such Company Acquisition Proposal and any related draft agreements and (yii) if oral, a reasonably detailed summary of any such Company Acquisition Proposal or request thereof that is made or submitted by any person Person during the period between the date hereof and the ClosingClosing Date). The Company shall (i) keep Parent informed in all material respects on a prompt basis with respect to any change to the status or material terms of any such Company Acquisition Proposal (and in no event later than 24 hours following any such change), (ii) provide to Parent as soon as practicable after receipt or delivery thereof with copies of all correspondence and other written material sent or provided to the Company from any third party in connection with any Company Acquisition Proposal or sent or provided by the Company to any third party in connection with any Company Acquisition Proposal and (iii) provide including providing Parent with advance written notice a copy of any scheduled meeting of the Company Board of Directors to discuss a Company Acquisition Proposaldraft agreements and modifications thereof.
(c) Upon the execution of this Agreement, the Company 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 existing as of the date of this Agreement or negotiations between the Company or any of its Subsidiaries or any of their respective officers, directors, employees or Representatives and any person (other than Parent) Person that relate to any Company Acquisition Proposal and, 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 12 months prior 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 the Company or to destroy all confidential information of the Company and its Subsidiaries. The Company 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 the Company or any of its Subsidiaries is or may become a party and agrees to use commercially reasonable efforts to enforce the provisions of such agreementsdate hereof.
(d) Except as contemplated by this otherwise provided in Section 5.4(d7.5(e), neither the Board of Directors of the Company nor (or any committee thereof shall thereof) may not (i) (A) withhold, withdraw, qualify withdraw or modify, or resolve to or publicly propose to withhold, withdrawwithdraw or modify, qualify or modify the Company Recommendation in a manner adverse to Parent, (B) Parent or make any other public statement statement, filing or release, in connection with obtaining the Company Stockholders’ Meeting Stockholder Approval or this Agreement or the Transactions otherwise, inconsistent with the Company Recommendation, (Cii) approve, adopt endorse or recommend any Company Acquisition Proposal or (D) fail to reaffirm or re-publish any of the Company Recommendation within five days of being requested by Parent to do so (each such action foregoing set forth in clauses (Ai) through and (D) above being ii), a “Company Change of Recommendation”) ), or (iiiii) approve, adopt or recommend, or publicly propose to approve, adopt or recommend, enter into a merger agreement, letter of intent, written definitive 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 5.4(a)) or any tender offer providing for, with respect to, or in connection with any for a Company Acquisition Proposal. Notwithstanding the foregoing, the Transaction.
(e) The Board of Directors of the Company or any committee thereof may at any time prior to the earlier of the Acceptance Time or receipt of the Company Stockholder Approval, Approval (i) effect a Company Change of Recommendation in respect of a Company Acquisition Proposal, and/or (iii) make if it elects to do so in connection with or following a Company Change of Recommendation and (ii) Recommendation, terminate this Agreement pursuant to Section 7.1(j9.1(d)(ii) of this Agreementin order to enter into a written definitive agreement providing for a Company Acquisition Transaction, if (and only if): (A) a Company Acquisition Proposal is made to the Company by a third party, and such offer is not withdrawn; (B) the Company’s Board of Directors of the Company 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 Company Superior Offer; (C) following consultation with outside legal counsel, the Company’s Board of Directors determines that the failure to make a Company Change of Recommendation, or to terminate this Agreement pursuant to Section 7.1(j) of this Agreement, would be reasonably likely to be inconsistent with the exercise of its duties under applicable Laws, (D) the Company Board of Directors has provided to Parent five business days prior written notice of its intent to effect a Company Change of Recommendation (which notice shall include the reasonable details regarding the cause for, and nature of, the Company Change of Recommendation and, if requested by Parent, negotiated in good faith with Parent during such five business day period regarding revisions to this Agreement which would avoid such Company Change of Recommendation; and (E) the Company Board of Directors has provided to Parent advance written notice of such Company Change of Recommendation at least two hours prior thereto. The Board of Directors of the Company may not, in respect of a Company Acquisition Proposal, make a Company Change of Recommendation in a manner adverse to Parent except in compliance in all respects with this Section 5.4(d). For the avoidance of doubt, a change of the Company Recommendation to “neutral” is a Company Change of Recommendation.
(e) Nothing in this Agreement shall prohibit or restrict the Board of Directors of the Company, at any time prior to receipt of the Company Stockholder Approval, in circumstances not involving or relating to a Company Acquisition Proposal, from effecting a Company Change of Recommendation if the Board of Directors of the Company such 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 Law; (D) the Company provides Parent five Business Days’ prior written notice of its intention to take such action (such five-Business Day period, the “Notice Period”), which notice shall include the information with respect to such Company Superior Offer that is specified in Section 7.5(b) (it being understood that any material revision or amendment to the terms of such Company Superior Offer shall require a new notice and, in such case, all references to five Business Days in this Section 7.5(e) shall be inconsistent with deemed to be two Business Days); and (E) at the exercise by end of the Notice Period described in clause (D), the Board of Directors of its duties under applicable Laws if (and only if): (A) the Company Board of Directors has provided to Parent five business days prior written notice of its intent to effect or such committee thereof again makes the determination in good faith after consultation with outside legal counsel and a Company Change of Recommendation financial advisor (which notice shall include the reasonable details regarding the cause for, and nature of, the Company Change of Recommendation) and, if requested by Parent, negotiated after negotiating in good faith with Parent and its Representatives if requested by Parent during such five business day period the Notice Period regarding revisions any adjustments or modifications to the terms of this Agreement proposed by Parent and taking into account any such adjustments or modifications) that would avoid such Company Change of Recommendation and (B) the Company Board Acquisition Proposal continues to be a Company 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 Directors has provided to Parent advance written notice of such Company Change of Recommendation at least two hours prior theretoits fiduciary duties under applicable Law.
(f) As used During the period from the date of this Agreement through the Effective Time, neither the Company 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 the Company or any standstill agreement to which it is a party unless the Board of Directors of the Company or any committee thereof determines in this Agreement: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 Law. During such period, the Company 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 the Company 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 Law.
Appears in 1 contract
Samples: Transaction Agreement (S1 Corp /De/)
