Other Offers, etc. (a) Notwithstanding any other provision of this Agreement to the contrary, during the period beginning on the date of this Agreement and continuing until 11:59 p.m., New York City time, on the earlier of the Offer Closing or the date that is 45 days after the date of this Agreement (such date and time, the “No-Shop Period Start Date”), the Company, its Subsidiaries and their respective Representatives shall have the right to: (i) initiate, solicit and encourage, whether publicly or otherwise, Takeover Proposals, including by way of providing access to non-public information pursuant to one or more confidentiality agreements that are on terms, with respect to the maintenance of confidentiality of the Company’s information, which are consistent US_ACTIVE:\44126911\17\77626.0003 with the Confidentiality Agreement; provided, that the Company shall promptly provide to Parent a copy of any material non-public information concerning the Company or its Subsidiaries that is provided to any Person given such access which was not previously provided to Parent (or its Representatives); and (ii) enter into and maintain discussions or negotiations with respect to Takeover Proposals or otherwise cooperate with or assist or participate in, or facilitate, any such inquiries, proposals, discussions or negotiations or the making of any Takeover Proposal. (b) Except as permitted by this Section 6.2 and except as may relate to any Excluded Party, the Company shall, and shall cause each of its Subsidiaries and each of its and their respective Representatives to (i) on the No-Shop Period Start Date, immediately cease any discussions or negotiations with any Persons that may be ongoing with respect to a Takeover Proposal, and require such Persons and any other Persons who have made or have indicated an intention to make a Takeover Proposal to promptly return or destroy any confidential information previously furnished by the Company, any of its Subsidiaries or any of their respective Representatives; and (ii) from the No-Shop Period Start Date until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article VIII, not (A) solicit, initiate, seek or knowingly facilitate or encourage any inquiries regarding, or the making of any proposal or offer that constitutes, or could reasonably be expected to lead to, a Takeover Proposal or (B) enter into, engage in, continue or otherwise participate in any discussions or negotiations relating to a Takeover Proposal, (C) furnish to any Person other than Parent or the Purchaser any non-public information that the Company believes or should reasonably know could be used for the purposes of formulating or furthering any Takeover Proposal, (D) approve, endorse, recommend, execute or enter into any agreement, letter of intent or Contract with respect to a Takeover Proposal or otherwise relating to or that is intended to or would reasonably be expected to lead to any Takeover Proposal or enter into any agreement, arrangement, or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transactions contemplated by this Agreement, (E) submit any Takeover Proposal or any matter related thereto to the vote of the stockholders of the Company or (F) propose, resolve or agree to do any of the foregoing. Any breach of this Section 6.2 by any Representative of the Company or any of its Subsidiaries shall be deemed to be a breach of this Agreement by the Company. (c) Notwithstanding anything to the contrary contained in Section 6.2(b), if at any time following the No-Shop Period Start Date and prior to the Offer Closing: (i) the Company has received a written Takeover Proposal from a third party that did not result from the Company’s or any of its Subsidiaries’ or any of its or their respective Representatives’ breach of this Section 6.2, and (ii) the Special Committee determines in good faith (after consultation with its counsel and financial advisors) that such Takeover Proposal constitutes or is reasonably likely to lead to a Superior Proposal, then the Company may take the following actions: (A) furnish any information with respect to the Company and its Subsidiaries to the Person making such Takeover Proposal and (B) participate in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, that neither the Company nor any of its Subsidiaries will, and will cause their respective Representatives not to disclose any non-public US_ACTIVE:\44126911\17\77626.0003 information to such Person without entering into a confidentiality agreement on terms, with respect to the maintenance of confidentiality of the Company’s information, which are consistent with the Confidentiality Agreement, and the Company will promptly provide to Parent a copy of all such information not previously provided to Parent (or its Representatives); provided further, that notwithstanding anything to the contrary contained in Section 6.2(b) or this Section 6.2(c), prior to the Offer Closing, the Company will in any event be permitted to take any or all of the actions described in clauses (A) and (B) above with respect to any Excluded Party; provided that, prior to taking any initial action described in clauses (A) or (B) above with respect to a particular Person, the Company shall notify Parent that it intends to take such initial action. (d) From and after the date hereof, the Special Committee and the Company shall promptly (and in any event within twenty-four (24) hours of learning of or receiving the relevant information) provide Parent with: (i) a reasonably detailed written description of any inquiry, expression of interest, proposal or offer relating to an Takeover Proposal (including any modification thereto), or any request for information that could reasonably be expected to lead to a Takeover Proposal, that is received by the Company or any of its Subsidiaries or any Representative of the Company or any of its Subsidiaries from any Person (other than Parent or the Purchaser) including in such description the identity of the Person from which such inquiry, expression of interest, proposal, offer or request for information was received (the “Other Interested Party”); and (ii) a complete, unredacted copy of each proposed or final written agreement or written document (including financing commitments and any related letters or documents) or material written communication and a reasonably detailed summary of each material oral communication transmitted on behalf of the Other Interested Party or any of its Representatives to the Company or any of its Subsidiaries or any of their Representatives or transmitted on behalf of the Company or any of its Subsidiaries or any Representative of the Company or any of its Subsidiaries to the Other Interested Party or any of its Representatives. Thereafter, the Company shall keep Parent informed in writing on a reasonably current basis (no later than twenty-four (24) hours after the occurrence) of any material changes to the terms thereof. (e) Except as expressly permitted by Section 6.2(f) or Section 6.2(g), (i) the Special Committee shall not withdraw or modify, in a manner adverse to Parent, the recommendation by the Special Committee that the Company Board recommend that the stockholders of the Company adopt this Agreement and tender their Shares in the Offer (the “Special Committee Recommendation”), (ii) the Company Board shall not withdraw or modify, in a manner adverse to Parent, the recommendation by the Company Board that stockholders of the Company adopt this Agreement and tender their Shares in the Offer (such recommendation, the “Board Recommendation” and together with the Special Committee Recommendation, the “Recommendations”), (iii) the Special Committee or the Company Board shall not publicly recommend to the stockholders of the Company or approve a Takeover Proposal (any action described in clauses (i), (ii) or (iii) above being referred to as a “Company Adverse Recommendation Change”), (iv) the Special Committee shall not advise the Company Board to authorize, and the Company Board shall not authorize, the Company or any of its Subsidiaries to enter into any merger, acquisition or similar agreement with respect to any Takeover Proposal (other than a confidentiality agreement) (each, a “Company Acquisition Agreement”). US_ACTIVE:\44126911\17\77626.0003 (f) Notwithstanding anything to the contrary in this Section 6.2, prior to the purchase of Shares pursuant to the Offer, in the absence of a Takeover Proposal, the Special Committee may make or advise the Company Board to make, and the Company Board may make, a Company Adverse Recommendation Change if the Special Committee determines in good faith, based on facts or circumstances arising or changes occurring after the date of this Agreement (such facts, circumstances or changes, an “Intervening Event”), and taking into account the results of any negotiations with Parent as contemplated by subsection (ii) below and any offer from Parent contemplated by subsection (iii) below, that such action is required in order for the Special Committee or the Company Board to comply with its fiduciary duties under applicable Law, provided, however, that the Company Board may not effect a Company Adverse Recommendation Change pursuant to this Section 6.2(f) unless: (i) the Company shall have provided prior written notice to Parent, at least five (5) Business Days in advance (the “Intervening Event Notice Period”), of the Company’s intention to make a Company Adverse Recommendation Change (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall specify in reasonable detail the Intervening Event and the facts, circumstances and other conditions giving rise to such Company Adverse Recommendation Change; (ii) prior to effecting such Company Adverse Recommendation Change, the Company shall, and shall cause the Company’s Representatives to, during the Intervening Event Notice Period negotiate with Parent in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement in such a manner that would obviate the need for the Special Committee or the Company Board to effect such Company Adverse Recommendation Change; and (iii) Parent shall not have, within the aforementioned five (5) Business Day period, made a written, binding and irrevocable (through the expiration of such period) offer to modify the terms and conditions of this Agreement, which is set forth in a definitive written amendment to this Agreement delivered to the Company and executed on behalf of Parent and the Purchaser, that the Special Committee has in good faith determined (after consultation with its outside legal counsel) would obviate the need for the Special Committee or the Company Board to effect such Company Adverse Recommendation Change. In the event of any material change (including successive changes) to the Intervening Event, the Company shall be required to deliver a new written notice to Parent and to comply with the requirements of this Section 6.2(f) with respect to such new written notice (but in lieu of the five (5) Business Day Intervening Event Notice Period, the Intervening Event Notice Period therefor shall be three (3) Business Days). US_ACTIVE:\44126911\17\77626.0003 (g) Notwithstanding anything to the contrary in this Section 6.2, prior to the Offer Closing, if the Company receives a Takeover Proposal that the Special Committee reasonably determines in good faith, after consultation with outside legal counsel and a financial advisor, constitutes a Superior Proposal, after giving effect to all of the adjustments to the terms and conditions of this Agreement that have been delivered to the Company by Parent in writing during the Notice Period provided pursuant to this Section 6.2(g), that are binding and have been committed to by Parent in writing, and if such written Takeover Proposal did not result from the Company’s or any of its Subsidiaries’ or any of its or their respective Representatives’ breach of this Section 6.2, the Special Committee may advise the Company Board to, and the Company Board may at any time prior to the Offer Closing, if the Special Committee determines in good faith, after consultation with outside legal counsel, that the failure to take such action would reasonably be expected to breach the fiduciary duties owed by the Special Committee or the Company Board to the stockholders of the Company under Delaware Law, effect a Company Adverse Recommendation Change, with respect to such Superior Proposal and enter into a Company Acquisition Agreement with respect to such Superior Proposal if the Company shall have concurrently with entering into such Company Acquisition Agreement terminated this Agreement pursuant to Section 8.1(d)(ii); provided, however, the Company may not take any of the actions pursuant to the foregoing provision unless: (i) the Company shall have provided prior written notice to Parent, at least five (5) Business Days in advance (the “Notice Period”), of the Company’s intention to take such action with respect to such Superior Proposal (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall specify in reasonable detail the material terms and conditions of such Superior Proposal (including the identity of the party making such Superior Proposal) and shall have contemporaneously provided a complete unredacted copy of the relevant proposed or final transaction agreements and documents with the party making such Superior Proposal, including the definitive agreement with respect to such Superior Proposal; (ii) prior to effecting such Company Adverse Recommendation Change, the Company shall, and shall cause the Company’s Representatives to, during the Notice Period, negotiate with Parent in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that such Takeover Proposal ceases to constitute a Superior Proposal; and Parent shall not have, within the aforementioned five (5) Business Day period, made a written, binding and irrevocable (through the expiration of such period) offer to modify the terms and conditions of this Agreement, which is set forth in a definitive written amendment to this Agreement delivered to the Company and executed on behalf of Parent and the Purchaser, that the Company Board has in good faith determined (after consultation with its outside legal counsel and its financial advisor) would cause such Takeover Proposal to cease to constitute a Superior Proposal. In the event of any revisions to the financial terms of or other material terms of the Superior Proposal (including successive revisions), the Company shall be required US_ACTIVE:\44126911\17\77626.0003 to deliver a new written notice to Parent and to comply with the requirements of this Section 6.2(g) with respect to such new written notice and to provide a new Notice Period pursuant to this Section 6.2(g) (but in lieu of five (5) Business Days the applicable Notice Period therefor shall be three (3) Business Days); and (iii) At the conclusion of any Notice Period provided herein and prior to effecting any Company Adverse Recommendation Change, the Special Committee shall reasonably determine in good faith after consultation with outside legal counsel and a financial advisor that such Takeover Proposal constitutes a Superior Proposal, and shall, concurrently therewith, provide Purchaser and Parent with written notice of that determination. (h) For purposes of this Agreement:
Appears in 1 contract
Other Offers, etc. (a) Notwithstanding any other provision of this Agreement to On September 2, 2007, at 11:59 P.M. (the contrary, during the period beginning on the date of this Agreement and continuing until 11:59 p.m., New York City time, on the earlier of the Offer Closing or the date that is 45 days after the date of this Agreement (such date and time, the “"No-Shop Period Start Date”"), the CompanyCompany shall and shall cause each of its Subsidiaries, and shall use its reasonable best efforts to cause its and its Subsidiaries' respective directors, officers, employees, legal counsel, investment banking and financial advisors, independent accountants and any other agents and representatives (collectively, "Representatives") to, cease any negotiations that may be ongoing immediately prior to the No-Shop Period Start Date with any Person with respect to a Takeover Proposal, other than any negotiations with an Excluded Party, and request, not later than five (5) days following the No-Shop Period Start Date, the prompt return or written acknowledgement of destruction of all confidential information previously furnished to such parties or their Representatives other than an Excluded Party. During the period from the No-Shop Period Start Date until the Effective Time, or such earlier date as this Agreement may be terminated in accordance with its terms, the Company and its Subsidiaries shall not, and their respective the Company shall use its reasonable best efforts to cause its and its Subsidiaries' Representatives shall have the right not to:
, (i) initiatesolicit, solicit and encourage, whether publicly initiate or otherwise, Takeover Proposals, knowingly encourage (including by way of providing information or access to its properties, books, records or personnel) the submission of any inquiries, proposals, or offers or any other efforts or attempts that constitute, or could reasonably be expected to lead to, any Takeover Proposal, or (ii) except to inform Persons of the existence of the provisions contained in this Section 4.2, participate in or otherwise cooperate with or assist in any discussions or negotiations with, or furnish any non-public information pursuant to, any Person regarding any inquiries, proposals, or offers or any other efforts or attempts that constitute, or may reasonably be expected to one lead to a Takeover Proposal, or more confidentiality agreements that are on terms, with respect (iii) grant any release or waiver under any standstill or similar agreement relating to the maintenance Company or any of confidentiality its Subsidiaries; provided that the foregoing restrictions shall not (x) limit in any respect the ability of the Company’s information, which are consistent US_ACTIVE:\44126911\17\77626.0003 with Company and its Representatives to take any of the Confidentiality Agreement; provided, actions described in clause (i) or (ii) above prior to the commencement of the No-Shop Period Start Date (provided that the Company shall enters into an Acceptable Confidentiality Agreement with such Person prior to providing any non-public information and promptly provide provides to Parent a copy of any material non-public information concerning the Company or its Subsidiaries that is provided to any such Person given such access which was not previously provided to Parent Parent) or (or its Representatives); and
(iiy) enter into and maintain discussions or negotiations with respect to Takeover Proposals or otherwise cooperate with or assist or participate in, or facilitate, any such inquiries, proposals, discussions or negotiations or the making of any Takeover Proposal.
(b) Except as permitted by this Section 6.2 and except as may relate be applicable to any Excluded Party; and provided, further, that (1) prior to the Company shall, and shall cause each commencement of its Subsidiaries and each of its and their respective Representatives to (i) on the No-Shop Period Start Date, immediately cease if requested to do so by any discussions or negotiations with Person, the Company may waive the provisions of any Persons "standstill" agreement between the Company and such Person to the extent necessary to permit such Person to submit a Takeover Proposal and (2) to the extent reasonably required to evaluate a Takeover Proposal that includes the issuance of securities by the Person making such Takeover Proposal, the Company may be ongoing enter into a customary confidentiality agreement in order to obtain non-public information with respect to a Takeover Proposalsuch Person. For purposes of this Agreement, and require such Persons and the term "Excluded Party" means any other Persons who have made or have indicated an intention to make Person from whom the Company receives a Takeover Proposal prior to promptly return or destroy any confidential information previously furnished by the Company, any of its Subsidiaries or any of their respective Representatives; and (ii) from the No-Shop Period Start Date until who, as determined in good faith by, and in the Effective Time or, if earlierreasonable judgment of, the termination Company Board as of this Agreement in accordance with Article VIII, not (A) solicit, initiate, seek or knowingly facilitate or encourage any inquiries regarding, or the making of any proposal or offer that constitutes, or could reasonably be expected to lead to, a Takeover Proposal or (B) enter into, engage in, continue or otherwise participate in any discussions or negotiations relating to a Takeover Proposal, (C) furnish to any Person other than Parent or the Purchaser any non-public information that the Company believes or should reasonably know could be used for the purposes of formulating or furthering any Takeover Proposal, (D) approve, endorse, recommend, execute or enter into any agreement, letter of intent or Contract with respect to a Takeover Proposal or otherwise relating to or that is intended to or would reasonably be expected to lead to any Takeover Proposal or enter into any agreement, arrangement, or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transactions contemplated by this Agreement, (E) submit any Takeover Proposal or any matter related thereto to the vote of the stockholders of the Company or (F) propose, resolve or agree to do any of the foregoing. Any breach of this Section 6.2 by any Representative of the Company or any of its Subsidiaries shall be deemed to be a breach of this Agreement by the Company.
(c) Notwithstanding anything to the contrary contained in Section 6.2(b), if at any time following the No-Shop Period Start Date and prior to Date, satisfies the Offer Closing: (i) the Company has received a written Takeover Proposal from a third party that did not result from the Company’s or any requirements of its Subsidiaries’ or any of its or their respective Representatives’ breach of this Section 6.2, and (ii) the Special Committee determines in good faith (after consultation with its counsel and financial advisors) that such Takeover Proposal constitutes or is reasonably likely to lead to a Superior Proposal, then the Company may take the following actions: (A) furnish any information with respect to the Company and its Subsidiaries to the Person making such Takeover Proposal and (B) participate in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, that neither the Company nor any of its Subsidiaries will, and will cause their respective Representatives not to disclose any nonsub-public US_ACTIVE:\44126911\17\77626.0003 information to such Person without entering into a confidentiality agreement on terms, with respect to the maintenance of confidentiality of the Company’s information, which are consistent with the Confidentiality Agreement, and the Company will promptly provide to Parent a copy of all such information not previously provided to Parent (or its Representatives); provided further, that notwithstanding anything to the contrary contained in Section 6.2(b) or this Section 6.2(c), prior to the Offer Closing, the Company will in any event be permitted to take any or all of the actions described in clauses (A) and (B) above with respect to of clause (z) of Section 4.2(b) (disregarding the fact, for this purpose, that such Takeover Proposal may not have been an unsolicited Takeover Proposal); provided that any Excluded Party; provided thatParty shall cease to be an Excluded Party for all purposes under this Agreement at such time as the Takeover Proposal made by such Person fails, prior in the reasonable judgment of the Company Board, to taking any initial action described in satisfy the requirements of sub-clauses (A) or and (B) above with respect to a particular Person, the Company shall notify Parent that it intends to take such initial action.
of clause (d) From and after the date hereof, the Special Committee and the Company shall promptly (and in any event within twenty-four (24) hours of learning of or receiving the relevant information) provide Parent with: (i) a reasonably detailed written description of any inquiry, expression of interest, proposal or offer relating to an Takeover Proposal (including any modification thereto), or any request for information that could reasonably be expected to lead to a Takeover Proposal, that is received by the Company or any of its Subsidiaries or any Representative of the Company or any of its Subsidiaries from any Person (other than Parent or the Purchaser) including in such description the identity of the Person from which such inquiry, expression of interest, proposal, offer or request for information was received (the “Other Interested Party”); and (ii) a complete, unredacted copy of each proposed or final written agreement or written document (including financing commitments and any related letters or documents) or material written communication and a reasonably detailed summary of each material oral communication transmitted on behalf of the Other Interested Party or any of its Representatives to the Company or any of its Subsidiaries or any of their Representatives or transmitted on behalf of the Company or any of its Subsidiaries or any Representative of the Company or any of its Subsidiaries to the Other Interested Party or any of its Representatives. Thereafter, the Company shall keep Parent informed in writing on a reasonably current basis (no later than twenty-four (24) hours after the occurrencez) of any material changes to the terms thereofSection 4.2(b).
(e) Except as expressly permitted by Section 6.2(f) or Section 6.2(g), (i) the Special Committee shall not withdraw or modify, in a manner adverse to Parent, the recommendation by the Special Committee that the Company Board recommend that the stockholders of the Company adopt this Agreement and tender their Shares in the Offer (the “Special Committee Recommendation”), (ii) the Company Board shall not withdraw or modify, in a manner adverse to Parent, the recommendation by the Company Board that stockholders of the Company adopt this Agreement and tender their Shares in the Offer (such recommendation, the “Board Recommendation” and together with the Special Committee Recommendation, the “Recommendations”), (iii) the Special Committee or the Company Board shall not publicly recommend to the stockholders of the Company or approve a Takeover Proposal (any action described in clauses (i), (ii) or (iii) above being referred to as a “Company Adverse Recommendation Change”), (iv) the Special Committee shall not advise the Company Board to authorize, and the Company Board shall not authorize, the Company or any of its Subsidiaries to enter into any merger, acquisition or similar agreement with respect to any Takeover Proposal (other than a confidentiality agreement) (each, a “Company Acquisition Agreement”). US_ACTIVE:\44126911\17\77626.0003
(f) Notwithstanding anything to the contrary in this Section 6.2, prior to the purchase of Shares pursuant to the Offer, in the absence of a Takeover Proposal, the Special Committee may make or advise the Company Board to make, and the Company Board may make, a Company Adverse Recommendation Change if the Special Committee determines in good faith, based on facts or circumstances arising or changes occurring after the date of this Agreement (such facts, circumstances or changes, an “Intervening Event”), and taking into account the results of any negotiations with Parent as contemplated by subsection (ii) below and any offer from Parent contemplated by subsection (iii) below, that such action is required in order for the Special Committee or the Company Board to comply with its fiduciary duties under applicable Law, provided, however, that the Company Board may not effect a Company Adverse Recommendation Change pursuant to this Section 6.2(f) unless:
(i) the Company shall have provided prior written notice to Parent, at least five (5) Business Days in advance (the “Intervening Event Notice Period”), of the Company’s intention to make a Company Adverse Recommendation Change (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall specify in reasonable detail the Intervening Event and the facts, circumstances and other conditions giving rise to such Company Adverse Recommendation Change;
(ii) prior to effecting such Company Adverse Recommendation Change, the Company shall, and shall cause the Company’s Representatives to, during the Intervening Event Notice Period negotiate with Parent in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement in such a manner that would obviate the need for the Special Committee or the Company Board to effect such Company Adverse Recommendation Change; and
(iii) Parent shall not have, within the aforementioned five (5) Business Day period, made a written, binding and irrevocable (through the expiration of such period) offer to modify the terms and conditions of this Agreement, which is set forth in a definitive written amendment to this Agreement delivered to the Company and executed on behalf of Parent and the Purchaser, that the Special Committee has in good faith determined (after consultation with its outside legal counsel) would obviate the need for the Special Committee or the Company Board to effect such Company Adverse Recommendation Change. In the event of any material change (including successive changes) to the Intervening Event, the Company shall be required to deliver a new written notice to Parent and to comply with the requirements of this Section 6.2(f) with respect to such new written notice (but in lieu of the five (5) Business Day Intervening Event Notice Period, the Intervening Event Notice Period therefor shall be three (3) Business Days). US_ACTIVE:\44126911\17\77626.0003
(g) Notwithstanding anything to the contrary in this Section 6.2, prior to the Offer Closing, if the Company receives a Takeover Proposal that the Special Committee reasonably determines in good faith, after consultation with outside legal counsel and a financial advisor, constitutes a Superior Proposal, after giving effect to all of the adjustments to the terms and conditions of this Agreement that have been delivered to the Company by Parent in writing during the Notice Period provided pursuant to this Section 6.2(g), that are binding and have been committed to by Parent in writing, and if such written Takeover Proposal did not result from the Company’s or any of its Subsidiaries’ or any of its or their respective Representatives’ breach of this Section 6.2, the Special Committee may advise the Company Board to, and the Company Board may at any time prior to the Offer Closing, if the Special Committee determines in good faith, after consultation with outside legal counsel, that the failure to take such action would reasonably be expected to breach the fiduciary duties owed by the Special Committee or the Company Board to the stockholders of the Company under Delaware Law, effect a Company Adverse Recommendation Change, with respect to such Superior Proposal and enter into a Company Acquisition Agreement with respect to such Superior Proposal if the Company shall have concurrently with entering into such Company Acquisition Agreement terminated this Agreement pursuant to Section 8.1(d)(ii); provided, however, the Company may not take any of the actions pursuant to the foregoing provision unless:
(i) the Company shall have provided prior written notice to Parent, at least five (5) Business Days in advance (the “Notice Period”), of the Company’s intention to take such action with respect to such Superior Proposal (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall specify in reasonable detail the material terms and conditions of such Superior Proposal (including the identity of the party making such Superior Proposal) and shall have contemporaneously provided a complete unredacted copy of the relevant proposed or final transaction agreements and documents with the party making such Superior Proposal, including the definitive agreement with respect to such Superior Proposal;
(ii) prior to effecting such Company Adverse Recommendation Change, the Company shall, and shall cause the Company’s Representatives to, during the Notice Period, negotiate with Parent in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that such Takeover Proposal ceases to constitute a Superior Proposal; and Parent shall not have, within the aforementioned five (5) Business Day period, made a written, binding and irrevocable (through the expiration of such period) offer to modify the terms and conditions of this Agreement, which is set forth in a definitive written amendment to this Agreement delivered to the Company and executed on behalf of Parent and the Purchaser, that the Company Board has in good faith determined (after consultation with its outside legal counsel and its financial advisor) would cause such Takeover Proposal to cease to constitute a Superior Proposal. In the event of any revisions to the financial terms of or other material terms of the Superior Proposal (including successive revisions), the Company shall be required US_ACTIVE:\44126911\17\77626.0003 to deliver a new written notice to Parent and to comply with the requirements of this Section 6.2(g) with respect to such new written notice and to provide a new Notice Period pursuant to this Section 6.2(g) (but in lieu of five (5) Business Days the applicable Notice Period therefor shall be three (3) Business Days); and
(iii) At the conclusion of any Notice Period provided herein and prior to effecting any Company Adverse Recommendation Change, the Special Committee shall reasonably determine in good faith after consultation with outside legal counsel and a financial advisor that such Takeover Proposal constitutes a Superior Proposal, and shall, concurrently therewith, provide Purchaser and Parent with written notice of that determination.
(h) For purposes of this Agreement:
Appears in 1 contract
Samples: Merger Agreement (Mc Shipping Inc)
Other Offers, etc. (a) Notwithstanding any other provision of this Agreement to the contrary, during the period beginning on the date of this Agreement and continuing until 11:59 p.m., New York City time, on the earlier of the Offer Closing or the date that is 45 days after the date of this Agreement (such date and time, the “No-Shop Period Start Date”), the Company, its Subsidiaries and their respective Representatives shall have the right to:
(i) initiate, solicit and encourage, whether publicly or otherwise, Takeover Proposals, including by way of providing access to non-public information pursuant to one or more confidentiality agreements that are on terms, with respect to the maintenance of confidentiality of the Company’s information, which are consistent US_ACTIVE:\44126911\17\77626.0003 with the Confidentiality Agreement; provided, that the Company shall promptly provide to Parent a copy of any material non-public information concerning the Company or its Subsidiaries that is provided to any Person given such access which was not previously provided to Parent (or its Representatives); and
(ii) enter into and maintain discussions or negotiations with respect to Takeover Proposals or otherwise cooperate with or assist or participate in, or facilitate, any such inquiries, proposals, discussions or negotiations or the making of any Takeover Proposal.
(b) Except as permitted by this Section 6.2 and except as may relate to any Excluded Party, the Company shall, and shall cause each of its Subsidiaries and each of its and their respective Representatives to (i) on the No-Shop Period Start Date, immediately cease any discussions or negotiations with any Persons that may be ongoing with respect to a Takeover Proposal, and require such Persons and any other Persons who have made or have indicated an intention to make a Takeover Proposal to promptly return or destroy any confidential information previously furnished by the Company, any of its Subsidiaries or any of their respective Representatives; and (ii) from the No-Shop Period Start Date until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article VIII, not (A) solicit, initiate, seek or knowingly facilitate or encourage any inquiries regarding, or the making of any proposal or offer that constitutes, or could reasonably be expected to lead to, a Takeover Proposal or (B) enter into, engage in, continue or otherwise participate in any discussions or negotiations relating to a Takeover Proposal, (C) furnish to any Person other than Parent or the Purchaser any non-public information that the Company believes or should reasonably know could be used for the purposes of formulating or furthering any Takeover Proposal, (D) approve, endorse, recommend, execute or enter into any agreement, letter of intent or Contract with respect to a Takeover Proposal or otherwise relating to or that is intended to or would reasonably be expected to lead to any Takeover Proposal or enter into any agreement, arrangement, or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transactions contemplated by this Agreement, (E) submit any Takeover Proposal or any matter related thereto to the vote of the stockholders of the Company or (F) propose, resolve or agree to do any of the foregoing. Any breach of this Section 6.2 by any Representative of the Company or any of its Subsidiaries shall be deemed to be a breach of this Agreement by the Company.
(c) Notwithstanding anything to the contrary contained in Section 6.2(b), if at any time following the No-Shop Period Start Date and prior to the Offer Closing: (i) the Company has received a written Takeover Proposal from a third party that did not result from the Company’s or any of its Subsidiaries’ or any of its or their respective Representatives’ breach of this Section 6.2, and (ii) the Special Committee determines in good faith (after consultation with its counsel and financial advisors) that such Takeover Proposal constitutes or is reasonably likely to lead to a Superior Proposal, then the Company may take the following actions: (A) furnish any information with respect to the Company and its Subsidiaries to the Person making such Takeover Proposal and (B) participate in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, that neither the Company nor any of its Subsidiaries will, and will cause their respective Representatives not to disclose any non-public US_ACTIVE:\44126911\17\77626.0003 information to such Person without entering into a confidentiality agreement on terms, with respect to the maintenance of confidentiality of the Company’s information, which are consistent with the Confidentiality Agreement, and the Company will promptly provide to Parent a copy of all such information not previously provided to Parent (or its Representatives); provided further, that notwithstanding anything to the contrary contained in Section 6.2(b) or this Section 6.2(c), prior to the Offer Closing, the Company will in any event be permitted to take any or all of the actions described in clauses (A) and (B) above with respect to any Excluded Party; provided that, prior to taking any initial action described in clauses (A) or (B) above with respect to a particular Person, the Company shall notify Parent that it intends to take such initial action.
(d) From and after the date hereof, the Special Committee and the Company shall promptly (and in any event within twenty-four (24) hours of learning of or receiving the relevant information) provide Parent with: (i) a reasonably detailed written description of any inquiry, expression of interest, proposal or offer relating to an Takeover Proposal (including any modification thereto), or any request for information that could reasonably be expected to lead to a Takeover Proposal, that is received by the Company or any of its Subsidiaries or any Representative of the Company or any of its Subsidiaries from any Person (other than Parent or the Purchaser) including in such description the identity of the Person from which such inquiry, expression of interest, proposal, offer or request for information was received (the “Other Interested Party”); and (ii) a complete, unredacted copy of each proposed or final written agreement or written document (including financing commitments and any related letters or documents) or material written communication and a reasonably detailed summary of each material oral communication transmitted on behalf of the Other Interested Party or any of its Representatives to the Company or any of its Subsidiaries or any of their Representatives or transmitted on behalf of the Company or any of its Subsidiaries or any Representative of the Company or any of its Subsidiaries to the Other Interested Party or any of its Representatives. Thereafter, the Company shall keep Parent informed in writing on a reasonably current basis (no later than twenty-four (24) hours after the occurrence) of any material changes to the terms thereof.
(e) Except as expressly permitted by Section 6.2(f) or Section 6.2(g), (i) the Special Committee shall not withdraw or modify, in a manner adverse to Parent, the recommendation by the Special Committee that the Company Board recommend that the stockholders of the Company adopt this Agreement and tender their Shares in the Offer (the “Special Committee Recommendation”), (ii) the Company Board shall not withdraw or modify, in a manner adverse to Parent, the recommendation by the Company Board that stockholders of the Company adopt this Agreement and tender their Shares in the Offer (such recommendation, the “Board Recommendation” and together with the Special Committee Recommendation, the “Recommendations”), (iii) the Special Committee or the Company Board shall not publicly recommend to the stockholders of the Company or approve a Takeover Proposal (any action described in clauses (i), (ii) or (iii) above being referred to as a “Company Adverse Recommendation Change”), (iv) the Special Committee shall not advise the Company Board to authorize, and the Company Board shall not authorize, the Company or any of its Subsidiaries to enter into any merger, acquisition or similar agreement with respect to any Takeover Proposal (other than a confidentiality agreement) (each, a “Company Acquisition Agreement”). US_ACTIVE:\44126911\17\77626.0003.
(f) Notwithstanding anything to the contrary in this Section 6.2, prior to the purchase of Shares pursuant to the Offer, in the absence of a Takeover Proposal, the Special Committee may make or advise the Company Board to make, and the Company Board may make, a Company Adverse Recommendation Change if the Special Committee determines in good faith, based on facts or circumstances arising or changes occurring after the date of this Agreement (such facts, circumstances or changes, an “Intervening Event”), and taking into account the results of any negotiations with Parent as contemplated by subsection (ii) below and any offer from Parent contemplated by subsection (iii) below, that such action is required in order for the Special Committee or the Company Board to comply with its fiduciary duties under applicable Law, provided, however, that the Company Board may not effect a Company Adverse Recommendation Change pursuant to this Section 6.2(f) unless:
(i) the Company shall have provided prior written notice to Parent, at least five (5) Business Days in advance (the “Intervening Event Notice Period”), of the Company’s intention to make a Company Adverse Recommendation Change (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall specify in reasonable detail the Intervening Event and the facts, circumstances and other conditions giving rise to such Company Adverse Recommendation Change;
(ii) prior to effecting such Company Adverse Recommendation Change, the Company shall, and shall cause the Company’s Representatives to, during the Intervening Event Notice Period negotiate with Parent in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement in such a manner that would obviate the need for the Special Committee or the Company Board to effect such Company Adverse Recommendation Change; and
(iii) Parent shall not have, within the aforementioned five (5) Business Day period, made a written, binding and irrevocable (through the expiration of such period) offer to modify the terms and conditions of this Agreement, which is set forth in a definitive written amendment to this Agreement delivered to the Company and executed on behalf of Parent and the Purchaser, that the Special Committee has in good faith determined (after consultation with its outside legal counsel) would obviate the need for the Special Committee or the Company Board to effect such Company Adverse Recommendation Change. In the event of any material change (including successive changes) to the Intervening Event, the Company shall be required to deliver a new written notice to Parent and to comply with the requirements of this Section 6.2(f) with respect to such new written notice (but in lieu of the five (5) Business Day Intervening Event Notice Period, the Intervening Event Notice Period therefor shall be three (3) Business Days). US_ACTIVE:\44126911\17\77626.0003.
(g) Notwithstanding anything to the contrary in this Section 6.2, prior to the Offer Closing, if the Company receives a Takeover Proposal that the Special Committee reasonably determines in good faith, after consultation with outside legal counsel and a financial advisor, constitutes a Superior Proposal, after giving effect to all of the adjustments to the terms and conditions of this Agreement that have been delivered to the Company by Parent in writing during the Notice Period provided pursuant to this Section 6.2(g), that are binding and have been committed to by Parent in writing, and if such written Takeover Proposal did not result from the Company’s or any of its Subsidiaries’ or any of its or their respective Representatives’ breach of this Section 6.2, the Special Committee may advise the Company Board to, and the Company Board may at any time prior to the Offer Closing, if the Special Committee determines in good faith, after consultation with outside legal counsel, that the failure to take such action would reasonably be expected to breach the fiduciary duties owed by the Special Committee or the Company Board to the stockholders of the Company under Delaware Law, effect a Company Adverse Recommendation Change, with respect to such Superior Proposal and enter into a Company Acquisition Agreement with respect to such Superior Proposal if the Company shall have concurrently with entering into such Company Acquisition Agreement terminated this Agreement pursuant to Section 8.1(d)(ii); provided, however, the Company may not take any of the actions pursuant to the foregoing provision unless:
(i) the Company shall have provided prior written notice to Parent, at least five (5) Business Days in advance (the “Notice Period”), of the Company’s intention to take such action with respect to such Superior Proposal (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall specify in reasonable detail the material terms and conditions of such Superior Proposal (including the identity of the party making such Superior Proposal) and shall have contemporaneously provided a complete unredacted copy of the relevant proposed or final transaction agreements and documents with the party making such Superior Proposal, including the definitive agreement with respect to such Superior Proposal;
(ii) prior to effecting such Company Adverse Recommendation Change, the Company shall, and shall cause the Company’s Representatives to, during the Notice Period, negotiate with Parent in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that such Takeover Proposal ceases to constitute a Superior Proposal; and Parent shall not have, within the aforementioned five (5) Business Day period, made a written, binding and irrevocable (through the expiration of such period) offer to modify the terms and conditions of this Agreement, which is set forth in a definitive written amendment to this Agreement delivered to the Company and executed on behalf of Parent and the Purchaser, that the Company Board has in good faith determined (after consultation with its outside legal counsel and its financial advisor) would cause such Takeover Proposal to cease to constitute a Superior Proposal. In the event of any revisions to the financial terms of or other material terms of the Superior Proposal (including successive revisions), the Company shall be required US_ACTIVE:\44126911\17\77626.0003 to deliver a new written notice to Parent and to comply with the requirements of this Section 6.2(g) with respect to such new written notice and to provide a new Notice Period pursuant to this Section 6.2(g) (but in lieu of five (5) Business Days the applicable Notice Period therefor shall be three (3) Business Days); and
(iii) At the conclusion of any Notice Period provided herein and prior to effecting any Company Adverse Recommendation Change, the Special Committee shall reasonably determine in good faith after consultation with outside legal counsel and a financial advisor that such Takeover Proposal constitutes a Superior Proposal, and shall, concurrently therewith, provide Purchaser and Parent with written notice of that determination.
(h) For purposes of this Agreement:
Appears in 1 contract
Other Offers, etc. (a) Notwithstanding any other provision of this Agreement to the contrary, during the period beginning on the date of this Agreement The Company and continuing until 11:59 p.m., New York City time, on the earlier of the Offer Closing or the date that is 45 days after the date of this Agreement (such date and time, the “No-Shop Period Start Date”), the Company, its Subsidiaries shall, and their respective Representatives shall have the right to:
(i) initiate, solicit and encourage, whether publicly or otherwise, Takeover Proposals, including by way of providing access to non-public information pursuant to one or more confidentiality agreements that are on terms, with respect to the maintenance of confidentiality of the Company’s information, which are consistent US_ACTIVE:\44126911\17\77626.0003 with the Confidentiality Agreement; provided, that the Company shall promptly provide use its reasonable best efforts to Parent a copy of any material non-public information concerning the Company or its Subsidiaries that is provided to any Person given such access which was not previously provided to Parent (or its Representatives); and
(ii) enter into and maintain discussions or negotiations with respect to Takeover Proposals or otherwise cooperate with or assist or participate in, or facilitate, any such inquiries, proposals, discussions or negotiations or the making of any Takeover Proposal.
(b) Except as permitted by this Section 6.2 and except as may relate to any Excluded Party, the Company shall, and shall cause each of its Subsidiaries and each of its and their its Subsidiaries’ respective Representatives to directors, officers, employees and investment bankers (icollectively, “Representatives”) on the No-Shop Period Start Dateto, immediately cease any discussions or negotiations with any Persons that may be ongoing as of the date of this Agreement with any Person with respect to a Bio Companies Takeover Proposal. During the period from the date of this Agreement until the Closing Date, or such earlier date as this Agreement may be terminated in accordance with its terms, the Company and its Subsidiaries shall not, and the Company shall use its reasonable best efforts to cause its and its Subsidiaries’ Representatives not to, (i) solicit, initiate or knowingly encourage any Bio Companies Takeover Proposal, and require such Persons and any other Persons who have made or have indicated an intention to make a Takeover Proposal to promptly return or destroy any confidential information previously furnished by the Company, any of its Subsidiaries or any of their respective Representatives; and (ii) from the No-Shop Period Start Date until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article VIII, not (A) solicit, initiate, seek or knowingly facilitate or encourage any inquiries regarding, or the making of any proposal or offer that constitutes, or could reasonably be expected to lead to, a Takeover Proposal or (B) enter into, engage in, continue or otherwise participate in any discussions or negotiations with (whether initiated by the Company or not), or furnish any information to, any Person relating to a any possible Bio Companies Takeover Proposal, (Ciii) furnish enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement constituting or related to, or reasonably likely to lead to, any Bio Companies Takeover Proposal (each, a “Bio Companies Acquisition Agreement”), or (iv) make or authorize any statement, recommendation or solicitation to any Person other than Parent or the Purchaser Company in support of any non-public information possible Bio Companies Takeover Proposal. Notwithstanding the foregoing, at any time prior to obtaining the Company Stockholder Authorization, (x) the Company and its Representatives may have discussions with any Person that has made an unsolicited Bio Companies Takeover Proposal in order to clarify and understand the terms and conditions of such proposal, (y) the Company may waive the provisions of any “standstill” agreement between the Company and such Person to the extent necessary to permit such Person to submit an unsolicited Bio Companies Takeover Proposal if the Company Board determines in good faith (after consultation with outside legal counsel) that the failure to so waive the applicable provisions of such standstill agreement would not be consistent with the Company believes or should reasonably know could be used for Board’s fiduciary duties to the purposes stockholders of formulating or furthering any Takeover Proposal, the Company under the Laws of the State of Delaware (D“Delaware Law”) approve, endorse, recommend, execute or enter into any agreement, letter of intent or Contract with respect to a and (z) if the Company Board (A) receives an unsolicited Bio Companies Takeover Proposal or otherwise relating to or that is intended to did not result from a breach of this Section 4.2 and the Company Board determines in good faith (after consultation with outside legal counsel and a financial advisor of nationally recognized reputation) that such unsolicited Bio Companies Takeover Proposal constitutes or would reasonably be expected to lead to a Superior Bio Companies Proposal and (B) determines in good faith (after consultation with outside legal counsel) that the failure to take any of the following actions in response to such Bio Companies Takeover Proposal or enter into any agreement, arrangement, or understanding requiring it would not be consistent with its fiduciary duties to abandon, terminate or fail to consummate the Merger or any other transactions contemplated by this Agreement, (E) submit any Takeover Proposal or any matter related thereto to the vote of the stockholders of the Company or under Delaware Law, then the Company may (Fx) proposefurnish information with respect to the Bio Companies and the Bio Companies Business to the Person making such Bio Companies Takeover Proposal (provided that the Company shall only provide non-public information pursuant to a confidentiality agreement not less restrictive of the recipient thereof in the aggregate than the Confidentiality Agreement, resolve or agree it being understood that such confidentiality agreement shall not prohibit disclosure to do Purchasers of any of the information and materials required to be disclosed or provided to Purchasers pursuant to this Agreement), and (y) participate in discussions and negotiations with such Person regarding such Bio Companies Takeover Proposal and, to the extent reasonably required to evaluate a Bio Companies Takeover Proposal that includes the issuance of securities by the Person making such Bio Companies Takeover Proposal, may enter into a customary confidentiality agreement in order to obtain non-public information with respect to such Person. Without limiting the foregoing. Any breach , it is understood that any violation of the restrictions set forth in this Section 6.2 4.2 by any Representative of the Company or any of its Subsidiaries shall be deemed to be a breach of this Agreement Section 4.2 by the Company.
(c) Notwithstanding anything to the contrary contained in Section 6.2(b), if at any time following the No-Shop Period Start Date and prior to the Offer Closing: (i) the Company has received a written Takeover Proposal from a third party that did not result from the Company’s or any of its Subsidiaries’ or any of its or their respective Representatives’ breach of this Section 6.2, and (ii) the Special Committee determines in good faith (after consultation with its counsel and financial advisors) that such Takeover Proposal constitutes or is reasonably likely to lead to a Superior Proposal, then the Company may take the following actions: (A) furnish any information with respect to the Company and its Subsidiaries to the Person making such Takeover Proposal and (B) participate in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, that neither the Company nor any of its Subsidiaries will, and will cause their respective Representatives not to disclose any non-public US_ACTIVE:\44126911\17\77626.0003 information to such Person without entering into a confidentiality agreement on terms, with respect to the maintenance of confidentiality of the Company’s information, which are consistent with the Confidentiality Agreement, and the Company will promptly provide to Parent a copy of all such information not previously provided to Parent (or its Representatives); provided further, that notwithstanding anything to the contrary contained in Section 6.2(b) or this Section 6.2(c), prior to the Offer Closing, the Company will in any event be permitted to take any or all of the actions described in clauses (A) and (B) above with respect to any Excluded Party; provided that, prior to taking any initial action described in clauses (A) or (B) above with respect to a particular Person, the Company shall notify Parent that it intends to take such initial action.
(d) From and after the date hereof, the Special Committee and the Company shall promptly (and in any event within twenty-four (24) hours of learning of or receiving the relevant information) provide Parent with: (i) a reasonably detailed written description of any inquiry, expression of interest, proposal or offer relating to an Takeover Proposal (including any modification thereto), or any request for information that could reasonably be expected to lead to a Takeover Proposal, that is received by the Company or any of its Subsidiaries or any Representative of the Company or any of its Subsidiaries from any Person (other than Parent or the Purchaser) including in such description the identity of the Person from which such inquiry, expression of interest, proposal, offer or request for information was received (the “Other Interested Party”); and (ii) a complete, unredacted copy of each proposed or final written agreement or written document (including financing commitments and any related letters or documents) or material written communication and a reasonably detailed summary of each material oral communication transmitted on behalf of the Other Interested Party or any of its Representatives to the Company or any of its Subsidiaries or any of their Representatives or transmitted on behalf of the Company or any of its Subsidiaries or any Representative of the Company or any of its Subsidiaries to the Other Interested Party or any of its Representatives. Thereafter, the Company shall keep Parent informed in writing on a reasonably current basis (no later than twenty-four (24) hours after the occurrence) of any material changes to the terms thereof.
(eb) Except as expressly permitted by this Section 6.2(f) or Section 6.2(g4.2(b), (i) the Special Committee Company Board and any committee thereof shall not (A) withdraw or modify, or propose publicly to withdraw or modify, in a manner adverse to ParentPurchasers, the its recommendation by the Special Committee that the holders of Company Board recommend that Common Stock authorize the stockholders of the Company adopt this Agreement and tender their Shares in the Offer Bio Companies Transactions (the “Special Committee Bio Companies Recommendation”) or (B) approve or recommend or propose publicly to approve or recommend to the holders of Company Common Stock, or otherwise permit or cause the Company to accept or enter into, a Bio Companies Takeover Proposal (any action described in this clause (i) being referred to as a “Bio Companies Adverse Recommendation Change”), (ii) neither the Company Board nor any of its Subsidiaries shall not withdraw or modify, in enter into any Bio Companies Acquisition Agreement other than a manner adverse confidentiality agreement permitted by and subject to Parent, the recommendation by the Company Board that stockholders requirements of the Company adopt this Agreement and tender their Shares in the Offer (such recommendation, the “Board Recommendation” and together with the Special Committee Recommendation, the “Recommendations”Section 4.2(a), (iii) neither the Special Committee Company nor any of its Subsidiaries shall release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party except to the extent the Company Board shall determines in good faith (after consultation with outside legal counsel) that the failure to so waive the applicable provisions of a standstill agreement would not publicly recommend be consistent with the Company Board’s fiduciary duties to the stockholders of the Company under Delaware Law and (iv) neither the Company Board nor any committee thereof shall agree or approve a Takeover Proposal (resolve to take any action described actions set forth in clauses (i), (ii) or (iii) above being referred to as a “Company Adverse Recommendation Change”), (iv) of this sentence. Notwithstanding the Special Committee shall not advise the Company Board to authorize, and the Company Board shall not authorize, the Company foregoing or any provision of its Subsidiaries to enter into any merger, acquisition or similar agreement with respect to any Takeover Proposal (other than a confidentiality agreement) (each, a “Company Acquisition Agreement”Section 4.2(a). US_ACTIVE:\44126911\17\77626.0003
(f) Notwithstanding anything to the contrary in this Section 6.2, prior to the purchase of Shares pursuant to the OfferCompany Stockholder Authorization, (x) other than in the absence of connection with a Bio Companies Takeover Proposal, the Special Committee may make or advise the Company Board to make, and the Company Board may make, a Company Adverse withdraw or modify the Bio Companies Recommendation Change if the Special Committee it determines in good faith, based on facts or circumstances arising or changes occurring after the date of this Agreement (such facts, circumstances or changes, an “Intervening Event”), and taking into account the results of any negotiations with Parent as contemplated by subsection (ii) below and any offer from Parent contemplated by subsection (iii) below, that such action is required in order for the Special Committee or the Company Board to comply with its fiduciary duties under applicable Law, provided, however, that the Company Board may not effect a Company Adverse Recommendation Change pursuant to this Section 6.2(f) unless:
(i) the Company shall have provided prior written notice to Parent, at least five (5) Business Days in advance (the “Intervening Event Notice Period”), of the Company’s intention to make a Company Adverse Recommendation Change (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall specify in reasonable detail the Intervening Event and the facts, circumstances and other conditions giving rise to such Company Adverse Recommendation Change;
(ii) prior to effecting such Company Adverse Recommendation Change, the Company shall, and shall cause the Company’s Representatives to, during the Intervening Event Notice Period negotiate with Parent in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement in such a manner that would obviate the need for the Special Committee or the Company Board to effect such Company Adverse Recommendation Change; and
(iii) Parent shall not have, within the aforementioned five (5) Business Day period, made a written, binding and irrevocable (through the expiration of such period) offer to modify the terms and conditions of this Agreement, which is set forth in a definitive written amendment to this Agreement delivered to the Company and executed on behalf of Parent and the Purchaser, that the Special Committee has in good faith determined (after consultation with its outside legal counsel) would obviate the need for the Special Committee or the Company Board to effect such Company Adverse Recommendation Change. In the event of any material change (including successive changes) to the Intervening Event, the Company shall be required to deliver a new written notice to Parent and to comply with the requirements of this Section 6.2(f) with respect to such new written notice (but in lieu of the five (5) Business Day Intervening Event Notice Period, the Intervening Event Notice Period therefor shall be three (3) Business Days). US_ACTIVE:\44126911\17\77626.0003
(g) Notwithstanding anything to the contrary in this Section 6.2, prior to the Offer Closing, if the Company receives a Takeover Proposal that the Special Committee reasonably determines in good faith, after consultation with outside legal counsel and a financial advisor, constitutes a Superior Proposal, after giving effect to all of the adjustments to the terms and conditions of this Agreement that have been delivered to the Company by Parent in writing during the Notice Period provided pursuant to this Section 6.2(g), that are binding and have been committed to by Parent in writing, and if such written Takeover Proposal did not result from the Company’s or any of its Subsidiaries’ or any of its or their respective Representatives’ breach of this Section 6.2, the Special Committee may advise the Company Board to, and the Company Board may at any time prior to the Offer Closing, if the Special Committee determines in good faith, after consultation with outside legal counsel, ) that the failure to take such action would reasonably not be expected to breach the consistent with its fiduciary duties owed by the Special Committee or the Company Board to the stockholders of the Company under Delaware Law, effect and (y) subject to Section 4.2(c), if the Company Board (A) receives a Bio Companies Takeover Proposal that it determines in good faith (after consultation with outside legal counsel and a financial advisor of nationally recognized reputation) constitutes a Superior Bio Companies Proposal, and (B) determines in good faith (after consultation with outside legal counsel) that failure to take any of the following actions would not be consistent with its fiduciary duties to the stockholders of the Company under Delaware Law, then the Company Board may (I) make a Bio Companies Adverse Recommendation Change, with respect Change and/or (II) cause the Company to such Superior Proposal and enter into a Company Bio Companies Acquisition Agreement with respect to such Superior Proposal Bio Companies Proposal, but only if the Company shall have concurrently with entering into such Company Bio Companies Acquisition Agreement terminated this Agreement pursuant to Section 8.1(d)(ii8.1(c)(i); provided, however, .
(c) If the Company Board determines to effect a Bio Companies Adverse Recommendation Change as provided in Section 4.2(b)(y)(I) or to authorize the Company to enter into a Bio Companies Acquisition Agreement as provided in Section 4.2(b)(y)(II), such Bio Companies Adverse Recommendation Change or Bio Companies Acquisition Agreement (as applicable) may not take any only become effective after the end of the actions pursuant fifth (5th) business day following Purchasers’ receipt of written notice from the Company (a “Bio Companies Adverse Recommendation Notice”) advising Purchasers that the Company Board intends to effect such Bio Companies Adverse Recommendation Change or to authorize the Company to enter into such Bio Companies Acquisition Agreement, which notice shall contain a copy of the Superior Bio Companies Proposal to which such Bio Companies Adverse Recommendation Change or Bio Companies Acquisition Agreement relates; provided that any material amendment to the foregoing provision unless:
(i) terms of such Superior Bio Companies Proposal after the Company initial Bio Companies Adverse Recommendation Notice shall have provided prior written notice to Parent, at least require a new Bio Companies Adverse Recommendation Notice and restart the five (5) Business Days business day period referred to above. In determining whether to effect a Bio Companies Adverse Recommendation Change or to cause the Company to enter into a Bio Companies Acquisition Agreement in advance (the “Notice Period”response to a Superior Bio Companies Proposal, in each case, as provided in Section 4.2(b)(y), the Company Board shall take into account in good faith any changes to the terms of this Agreement proposed by Purchasers (in response to a Bio Companies Adverse Recommendation Notice or otherwise) in determining whether such Bio Companies Takeover Proposal still constitutes a Superior Bio Companies Proposal.
(d) In addition to the obligations of the Company’s intention Company set forth in Section 4.2(a), (b) and (c), the Company will, unless (and to take such action the extent) the Company Board determines in good faith (after consultation with outside legal counsel) that doing so would not be consistent with its fiduciary duties to the stockholders of the Company under Delaware Law, (i) promptly, and in any event within 24 hours, advise Purchasers orally and in writing of any request for information with respect to such Superior a potential Bio Companies Takeover Proposal (it being understood that or of any Bio Companies Takeover Proposal, the delivery of such notice financial and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall specify in reasonable detail the other material terms and conditions of such Superior request or Bio Companies Takeover Proposal (including and the identity of the party Person making such Superior Proposal) and shall have contemporaneously provided a complete unredacted copy of the relevant proposed request or final transaction agreements and documents with the party making such Superior Bio Companies Takeover Proposal, including the definitive agreement with respect to such Superior Proposal;
(ii) prior to effecting such Company Adverse Recommendation Change, keep Purchasers reasonably informed of the Company shall, status and shall cause the Company’s Representatives to, during the Notice Period, negotiate with Parent in good faith details (to the extent Parent desires to negotiateincluding amendments or proposed amendments) to make such adjustments in the terms and conditions of this Agreement so that such Takeover Proposal ceases to constitute a Superior Proposal; and Parent shall not have, within the aforementioned five (5) Business Day period, made a written, binding and irrevocable (through the expiration of such period) offer to modify the terms and conditions of this Agreement, which is set forth in a definitive written amendment to this Agreement delivered to the Company and executed on behalf of Parent and the Purchaser, that the Company Board has in good faith determined (after consultation with its outside legal counsel and its financial advisor) would cause such Takeover Proposal to cease to constitute a Superior Proposal. In the event of any revisions to the financial terms of and all such requests or other material terms of the Superior Proposal (including successive revisions), the Company shall be required US_ACTIVE:\44126911\17\77626.0003 to deliver a new written notice to Parent Bio Companies Takeover Proposals and to comply with the requirements of this Section 6.2(g) with respect to such new written notice and to provide a new Notice Period pursuant to this Section 6.2(g) (but in lieu of five (5) Business Days the applicable Notice Period therefor shall be three (3) Business Days); and
(iii) At provide to Purchasers as soon as practicable after receipt or delivery thereof (and in any event within 48 hours) copies of all material correspondence and other written material sent or provided to the conclusion of Company, directly or indirectly, from any Notice Period provided herein and prior to effecting third party in connection with any Company Adverse Recommendation Change, the Special Committee shall reasonably determine in good faith after consultation with outside legal counsel and a financial advisor that such Bio Companies Takeover Proposal constitutes a Superior Proposal, and shall, concurrently therewith, provide Purchaser and Parent or inquiry or sent or provided by the Company to any third party in connection with written notice of that determinationany Bio Companies Takeover Proposal or inquiry.
(he) For purposes of this Agreement:
Appears in 1 contract
Other Offers, etc. (a) Notwithstanding any other provision Target and each Target Subsidiary shall not take, and shall cause its Affiliates and each of this Agreement to the contrary, during the period beginning on the date of this Agreement and continuing until 11:59 p.m., New York City time, on the earlier of the Offer Closing or the date that is 45 days after the date of this Agreement (such date and time, the “No-Shop Period Start Date”), the Company, its Subsidiaries and their respective officers, directors, employees and Representatives shall have the right to:
not to take, any action directly or indirectly to (i) solicit, initiate, solicit and encourage, whether publicly facilitate or otherwise, Takeover Proposals, including by way of providing access to non-public information pursuant to one induce the making or more confidentiality agreements that are on terms, with respect to the maintenance of confidentiality of the Company’s information, which are consistent US_ACTIVE:\44126911\17\77626.0003 with the Confidentiality Agreement; provided, that the Company shall promptly provide to Parent a copy submission of any material non-public information concerning the Company or its Subsidiaries that is provided to any Person given such access which was not previously provided to Parent (or its Representatives); and
Acquisition Proposal, (ii) enter into any agreement, arrangement or understanding with respect to any Acquisition Proposal, other than a confidentiality agreement referred to below, in accordance with the terms and maintain under the circumstances contemplated below in this Section 7.2(a), or to agree to approve or endorse any Acquisition Proposal or enter into any agreement, arrangement or understanding that would require Target to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement, (iii) initiate or participate in any way in any discussions or negotiations with respect to Takeover Proposals with, or otherwise cooperate furnish or disclose any information to, any Person (other than Buyer and its Affiliates (including PSRT and its Affiliates (but not Target and its Subsidiaries))) in connection with or assist or participate inin furtherance of any proposal that constitutes, or facilitatewould reasonably be expected to lead to, any such inquiriesAcquisition Proposal, proposals, discussions (iv) facilitate or negotiations further in any other manner any inquiries or the making or submission of any proposal that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal, or (v) grant any waiver or release under any confidentiality or similar agreement (excluding any standstill provision contained therein) entered into by Target or any of its Affiliates or Representatives; PROVIDED, that so long as there has been no breach of this Section 7.2(a), prior to the Stockholders Meeting, Target, in response to an unsolicited Acquisition Proposal and otherwise in compliance with its obligations under Section 7.2(d), may request clarifications from, furnish information to, or enter into negotiations or discussions with, any Person which makes such unsolicited Acquisition Proposal if (A) such action is taken subject to a confidentiality agreement with Target containing customary terms and conditions; PROVIDED, that if such confidentiality agreement contains provisions that are less restrictive than the comparable provisions of the Confidentiality Agreements, or omits restrictive provisions contained in the Confidentiality Agreements, then the Confidentiality Agreements shall be deemed to be automatically amended to contain in substitution for such comparable provisions such less restrictive provisions, or to omit such restrictive provisions, as the case may be, and in connection with the foregoing, Target agrees not to waive any of the provisions in any such confidentiality agreement without waiving the similar provisions in the Confidentiality Agreements to the same extent, and (B) the Special Committee and the Board of Directors of Target (acting without the participation of Messrs. Ross, Ticotin and Zobler (or their respective successors)) each reasonabxx xetxxxxxxx in gxxx xxith, each after consultation with an independent nationally recognized investment bank, that such Acquisition Proposal is a Superior Proposal. Without limiting the foregoing, Buyer and Target agree that any violation of the restrictions set forth in this Section 7.2(a) by any Affiliate (excluding Buyer and its Affiliates (other than Target and its Subsidiaries)), officer, director, employee or Representative of Target or any Target Subsidiary or their respective Affiliates (other than any such Person who is an Affiliate or employee of Buyer or of any of its Affiliates (other than Target and its Subsidiaries)), whether or not such Person is purporting to act on behalf of Target or any Target Subsidiary or their respective Affiliates, shall constitute a breach by Target or any Target Subsidiary of this Section 7.2(a). Target shall not take any action to exempt (1) any Person (other than Buyer, PSRT and KI) from the application of the Ownership Limit (as defined in the Charter of Target) or (2) any transaction (other than those contemplated by this Agreement) from the application of any Takeover ProposalStatute. Target shall enforce, to the fullest extent permitted under applicable Law, the provisions of any confidentiality or similar agreement (excluding any standstill provision contained therein) entered into by Target or any Target Subsidiary or their respective Affiliates or Representatives, including where necessary, obtaining injunctions to prevent any breaches of such agreements and to enforce specifically the terms and provisions thereof in any court having jurisdiction.
(b) Except as permitted by this Section 6.2 Target and except as may relate to any Excluded Party, the Company Target Subsidiaries shall, and shall use reasonable best efforts to cause each of its Subsidiaries their Affiliates and each of its and their respective officers, directors, employees and Representatives to (i) on the No-Shop Period Start Dateto, immediately cease any and all existing activities, discussions or negotiations with any Persons that may be ongoing with respect to any Acquisition Proposal.
(c) Neither the Board of Directors of Target nor any committee thereof (including the Special Committee) shall (i) withdraw, qualify, modify or amend, or propose to withdraw, qualify, modify or amend, in a Takeover Proposalmanner adverse to Buyer, and require such Persons and any other Persons who have made the approval, adoption or have indicated an intention to make a Takeover Proposal to promptly return or destroy any confidential information previously furnished by recommendation, as the Companycase may be, any of its Subsidiaries the Merger, this Agreement or any of their respective Representatives; and the other transactions contemplated hereby, (ii) from the No-Shop Period Start Date until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article VIII, not (A) solicit, initiate, seek approve or knowingly facilitate or encourage any inquiries regardingrecommend, or the making of any proposal propose to approve or offer that constitutes, or could reasonably be expected to lead to, a Takeover Proposal or (B) enter into, engage in, continue or otherwise participate in any discussions or negotiations relating to a Takeover Proposal, (C) furnish to any Person other than Parent or the Purchaser any non-public information that the Company believes or should reasonably know could be used for the purposes of formulating or furthering any Takeover Proposal, (D) approve, endorse, recommend, execute or enter into any agreement, letter of intent or Contract with respect to a Takeover Acquisition Proposal or otherwise relating to or that is intended to or would reasonably be expected to lead to any Takeover Proposal or enter into any agreement, arrangement, or understanding requiring it to abandon, terminate or fail to consummate (excluding the Merger or any other transactions contemplated by this Agreement), (Eiii) submit cause Target to accept such Acquisition Proposal and/or enter into any Takeover Proposal letter of intent, agreement in principle, acquisition agreement or any matter other similar agreement (each, an "ACQUISITION AGREEMENT") related thereto to the vote of the stockholders of the Company such Acquisition Proposal, or (Fiv) propose, resolve or agree to do any of the foregoing. Any breach ; PROVIDED, that the Board of this Section 6.2 by any Representative Directors of Target (acting without the participation of Messrs. Ross, Ticotin and Zobler (or their respective successors)), based on the xxxommendation of the Company or any of its Subsidiaries shall be deemed to be a breach of this Agreement by the Company.
(c) Notwithstanding anything to the contrary contained in Section 6.2(b)Special Committee, if at any time following the No-Shop Period Start Date and may take such actions prior to the Offer Closing: Stockholders Meeting if (iv) Target has complied with its obligations under this Section 7.2, (w) the Company has received a written Takeover Acquisition Proposal from a third party that did not result from the Company’s or any of its Subsidiaries’ or any of its or their respective Representatives’ breach of this Section 6.2, and (ii) the Special Committee determines in good faith (after consultation with its counsel and financial advisors) that such Takeover Proposal constitutes or is reasonably likely to lead to a Superior Proposal, then (x) all the Company may take the following actions: (A) furnish any information with respect conditions to the Company and its Subsidiaries Target's right to the Person making such Takeover Proposal and (B) participate in discussions or negotiations with the Person making such Takeover Proposal regarding such Takeover Proposal; provided, however, that neither the Company nor any of its Subsidiaries will, and will cause their respective Representatives not to disclose any non-public US_ACTIVE:\44126911\17\77626.0003 information to such Person without entering into a confidentiality agreement on terms, with respect to the maintenance of confidentiality of the Company’s information, which are consistent with the Confidentiality Agreement, and the Company will promptly provide to Parent a copy of all such information not previously provided to Parent (or its Representatives); provided further, that notwithstanding anything to the contrary contained in Section 6.2(b) or this Section 6.2(c), prior to the Offer Closing, the Company will in any event be permitted to take any or all of the actions described in clauses (A) and (B) above with respect to any Excluded Party; provided that, prior to taking any initial action described in clauses (A) or (B) above with respect to a particular Person, the Company shall notify Parent that it intends to take such initial action.
(d) From and after the date hereof, the Special Committee and the Company shall promptly (and in any event within twenty-four (24) hours of learning of or receiving the relevant information) provide Parent with: (i) a reasonably detailed written description of any inquiry, expression of interest, proposal or offer relating to an Takeover Proposal (including any modification thereto), or any request for information that could reasonably be expected to lead to a Takeover Proposal, that is received by the Company or any of its Subsidiaries or any Representative of the Company or any of its Subsidiaries from any Person (other than Parent or the Purchaser) including in such description the identity of the Person from which such inquiry, expression of interest, proposal, offer or request for information was received (the “Other Interested Party”); and (ii) a complete, unredacted copy of each proposed or final written agreement or written document (including financing commitments and any related letters or documents) or material written communication and a reasonably detailed summary of each material oral communication transmitted on behalf of the Other Interested Party or any of its Representatives to the Company or any of its Subsidiaries or any of their Representatives or transmitted on behalf of the Company or any of its Subsidiaries or any Representative of the Company or any of its Subsidiaries to the Other Interested Party or any of its Representatives. Thereafter, the Company shall keep Parent informed in writing on a reasonably current basis (no later than twenty-four (24) hours after the occurrence) of any material changes to the terms thereof.
(e) Except as expressly permitted by Section 6.2(f) or Section 6.2(g), (i) the Special Committee shall not withdraw or modify, in a manner adverse to Parent, the recommendation by the Special Committee that the Company Board recommend that the stockholders of the Company adopt this Agreement and tender their Shares in the Offer (the “Special Committee Recommendation”), (ii) the Company Board shall not withdraw or modify, in a manner adverse to Parent, the recommendation by the Company Board that stockholders of the Company adopt this Agreement and tender their Shares in the Offer (such recommendation, the “Board Recommendation” and together with the Special Committee Recommendation, the “Recommendations”), (iii) the Special Committee or the Company Board shall not publicly recommend to the stockholders of the Company or approve a Takeover Proposal (any action described in clauses (i), (ii) or (iii) above being referred to as a “Company Adverse Recommendation Change”), (iv) the Special Committee shall not advise the Company Board to authorize, and the Company Board shall not authorize, the Company or any of its Subsidiaries to enter into any merger, acquisition or similar agreement with respect to any Takeover Proposal (other than a confidentiality agreement) (each, a “Company Acquisition Agreement”). US_ACTIVE:\44126911\17\77626.0003
(f) Notwithstanding anything to the contrary in this Section 6.2, prior to the purchase of Shares pursuant to the Offer, in the absence of a Takeover Proposal, the Special Committee may make or advise the Company Board to make, and the Company Board may make, a Company Adverse Recommendation Change if the Special Committee determines in good faith, based on facts or circumstances arising or changes occurring after the date of this Agreement (such facts, circumstances or changes, an “Intervening Event”), and taking into account the results of any negotiations with Parent as contemplated by subsection (ii) below and any offer from Parent contemplated by subsection (iii) below, that such action is required in order for the Special Committee or the Company Board to comply with its fiduciary duties under applicable Law, provided, however, that the Company Board may not effect a Company Adverse Recommendation Change pursuant to this Section 6.2(f) unless:
(i) the Company shall have provided prior written notice to Parent, at least five (5) Business Days in advance (the “Intervening Event Notice Period”), of the Company’s intention to make a Company Adverse Recommendation Change (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall specify in reasonable detail the Intervening Event and the facts, circumstances and other conditions giving rise to such Company Adverse Recommendation Change;
(ii) prior to effecting such Company Adverse Recommendation Change, the Company shall, and shall cause the Company’s Representatives to, during the Intervening Event Notice Period negotiate with Parent in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of terminate this Agreement in such a manner that would obviate the need for the Special Committee or the Company Board to effect such Company Adverse Recommendation Change; and
accordance with Section 9.1(h) have been satisfied (iii) Parent shall not have, within the aforementioned five (5) Business Day period, made a written, binding and irrevocable (through including the expiration of such period) offer to modify the terms and conditions of this Agreement, which is set forth in a definitive written amendment to this Agreement delivered to the Company and executed on behalf of Parent and the Purchaser, that the Special Committee has in good faith determined (after consultation with its outside legal counsel) would obviate the need for the Special Committee or the Company Board to effect such Company Adverse Recommendation Change. In the event of any material change (including successive changes) to the Intervening Event, the Company shall be required to deliver a new written notice to Parent and to comply with the requirements of this Section 6.2(f) with respect to such new written notice (but in lieu of the five (5) Business Day Intervening Event Notice Periodperiod described therein and the payment of all amounts required pursuant to Section 9.2) and (y) simultaneously or substantially simultaneously with such withdrawal, the Intervening Event Notice Period therefor shall be three (3) Business Daysmodification or recommendation, this Agreement is terminated in accordance with Section 9.1(h). US_ACTIVE:\44126911\17\77626.0003.
(gd) Notwithstanding anything In addition to the contrary obligations of Target set forth in paragraph (a) of this Section 6.27.2, prior on the date of receipt or occurrence thereof, Target shall advise Buyer of any request for information with respect to the Offer Closing, if the Company receives a Takeover any Acquisition Proposal that the Special Committee reasonably determines in good faith, after consultation with outside legal counsel and a financial advisor, constitutes a Superior or of any Acquisition Proposal, after giving effect or any inquiry, proposal, discussions or negotiation with respect to all of the adjustments to any Acquisition Proposal, the terms and conditions of this Agreement that have been delivered to the Company by Parent in writing during the Notice Period provided pursuant to this Section 6.2(g)such request, that are binding Acquisition Proposal, inquiry, proposal, discussion or negotiation and have been committed to by Parent in writingTarget shall, and if such written Takeover Proposal did not result from the Company’s or any of its Subsidiaries’ or any of its or their respective Representatives’ breach of this Section 6.2, the Special Committee may advise the Company Board to, and the Company Board may at any time prior to the Offer Closing, if the Special Committee determines in good faith, after consultation with outside legal counsel, that the failure to take such action would reasonably be expected to breach the fiduciary duties owed by the Special Committee or the Company Board to the stockholders within forty-eight (48) hours of the Company under Delaware Lawreceipt thereof, effect a Company Adverse Recommendation Change, promptly provide to Buyer copies of any written materials received by Target in connection with respect to such Superior Proposal and enter into a Company Acquisition Agreement with respect to such Superior Proposal if the Company shall have concurrently with entering into such Company Acquisition Agreement terminated this Agreement pursuant to Section 8.1(d)(ii); provided, however, the Company may not take any of the actions pursuant to the foregoing provision unless:
(i) the Company shall have provided prior written notice to Parentforegoing, at least five (5) Business Days in advance (the “Notice Period”), of the Company’s intention to take such action with respect to such Superior Proposal (it being understood that the delivery of such notice and any amendment or update thereto and the determination to so deliver such notice, update or amendment shall not, by itself, constitute a Company Adverse Recommendation Change), which notice shall specify in reasonable detail the material terms and conditions of such Superior Proposal (including the identity of the party Person making any such Superior Proposal) and Acquisition Proposal or such request, inquiry or proposal or with whom any discussions or negotiations are taking place. Target shall have contemporaneously provided a complete unredacted copy keep Buyer fully informed of the relevant status and material details (including amendments or proposed amendments) of any such request or final transaction agreements Acquisition Proposal and documents with keep Buyer fully informed as to the party making such Superior Proposal, including material details of any information requested of or provided by Target and as to the definitive agreement details of all discussions or negotiations with respect to any such Superior request, Acquisition Proposal;
(ii) prior to effecting such Company Adverse Recommendation Change, the Company shallinquiry or proposal, and shall cause the Company’s Representatives toprovide to Buyer within forty-eight (48) hours of receipt thereof all written materials received by Target with respect thereto. Target shall promptly provide to Buyer any non-public information concerning Target provided to any other Person in connection with any Acquisition Proposal, during the Notice Periodwhich was not previously provided to Buyer.
(e) Target shall promptly request in writing each Person which has heretofore executed a confidentiality agreement in connection with its consideration of acquiring Target or any portion thereof to return all confidential information heretofore furnished to such Person by or on behalf of Target, negotiate with Parent in good faith and Target shall use its reasonable best efforts to have such information returned or destroyed (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that such Takeover Proposal ceases to constitute a Superior Proposal; and Parent shall not have, within the aforementioned five (5) Business Day period, made a written, binding and irrevocable (through the expiration destruction of such period) offer to modify the terms and conditions of this Agreement, which information is set forth in a definitive written amendment to this Agreement delivered to the Company and executed on behalf of Parent and the Purchaser, that the Company Board has in good faith determined (after consultation with its outside legal counsel and its financial advisor) would cause permitted by such Takeover Proposal to cease to constitute a Superior Proposal. In the event of any revisions to the financial terms of or other material terms of the Superior Proposal (including successive revisionsconfidentiality agreement), the Company shall be required US_ACTIVE:\44126911\17\77626.0003 to deliver a new written notice to Parent and to comply with the requirements of this Section 6.2(g) with respect to such new written notice and to provide a new Notice Period pursuant to this Section 6.2(g) (but in lieu of five (5) Business Days the applicable Notice Period therefor shall be three (3) Business Days); and
(iii) At the conclusion of any Notice Period provided herein and prior to effecting any Company Adverse Recommendation Change, the Special Committee shall reasonably determine in good faith after consultation with outside legal counsel and a financial advisor that such Takeover Proposal constitutes a Superior Proposal, and shall, concurrently therewith, provide Purchaser and Parent with written notice of that determination.
(hf) For purposes Notwithstanding the foregoing, nothing in this Section 7.2 shall prohibit the solicitation of this Agreement:proposals to purchase the Owned Real Property set forth at Section 7.2(f) of the Target Disclosure Memorandum; PROVIDED, that no agreement to sell shall be entered into except as permitted in Section 6.2.
Appears in 1 contract
Samples: Merger Agreement (Lazard Freres Real Estate Investors LLC)
